Pavlakos, G. and de Feyer, K., The Tension Between Group Rights and Human Rights

THE TENSION BETWEEN GROUP RIGHTS
AND HUMAN RIGHTS

The discussion of group rights, while always a part of the human rights
discourse, has been gaining importance in the past decade. This discussion,
which remains fundamental to a full realisation by the international community of its international human rights goals, requires careful analysis and
empirical research. The present volume offers a great deal of material for
both. It makes a strong case in favour of a multidisciplinary approach to
human rights and explores the origins and social, anthropological and legal/
political dimensions of human rights and internationally recognised group
rights. It explores legal issues such as the reservations to international
treaties and methodological questions, including the question of deliberative processes which allow seemingly absolute requirements of human rights
to be reconciled with culturally sensitive norms prevailing within various
groups. The discussion continues by looking at specific contexts, including
the situations of women, school communities, ethnic and linguistic minorities, migrant communities and impoverished groups. The final part of the
volume examines the state of play of human rights and group rights in
international law, in international relations and in the context of internationally sponsored development policies. Here the authors offer a meticulous and critical presentation of the legal regulation of human rights and
group rights and point to numerous weaknesses which continue to exist and
which call for additional work by legal thinkers and practitioners.
Volume 13: Human Rights Law in Perspective
Human Rights Law in Perspective

General Editor: Colin Harvey
The language of human rights figures prominently in legal and political
debates at the national, regional and international levels. In the UK the
Human Rights Act 1998 has generated considerable interest in the law of
human rights. It will continue to provoke much debate in the legal community
and the search for original insights and new materials will intensify.
The aim of this series is to provide a forum for scholarly reflection on all
aspects of the law of human rights. The series will encourage work which
engages with the theoretical, comparative and international dimensions of
human rights law. The primary aim is to publish over time books which offer
an insight into human rights law in its contextual setting. The objective is to
promote an understanding of the nature and impact of human rights law.
The series is inclusive, in the sense that all perspectives in legal scholarship
are welcome. It will incorporate the work of new and established scholars.
Human Rights Law in Perspective is not confined to consideration of
the UK. It will strive to reflect comparative, regional and international
perspectives. Work which focuses on human rights law in other states will
therefore be included in this series. The intention is to offer an inclusive
intellectual home for significant scholarly contributions to human rights law.
Volume 1 Importing the Law in Post-Communist Transitions
Catherine Dupr
Volume 2 The Development of the Positive Obligations
Under the European Convention on Human Rights by the
European Court of Human Rights
Alastair Mowbray
Volume 3 Human Rights Brought Home: Socio-Legal Studies of
Human Rights in the National Context
Edited by Simon Halliday and Patrick Schmidt
Volume 4 Corporations and Transnational Human Rights Litigation
Sarah Joseph
Volume 5 Human Rights in the Community: Rights as Agents
for Change
Edited by Colin Harvey
Volume 6 Human Rights, Culture and the Rule of Law
Jessica Almqvist
Volume 7 Property and the Human Rights Act 1988
Tom Allen
Volume 8
Gender, Culture and Human Rights

Siobhn Mullally
Volume 9 Monetary Remedies for Breach of Human Rights:
A Comparative Study
Lisa Tortell
Volume 10 Judicial Review, Socio-Economic Rights and the
Human Rights Act
Ellie Palmer
Volume 11 The Role of National Human Rights Institutions
at the International and Regional Levels
Rachel Murray
Volume 12 Terrorism and the Limitation of Rights:
The ECHR and the US Constitution
Stefan Sottiaux
To Han and Estelle
The Tension Between

Group Rights and
Human Rights
A Multidisciplinary
Approach
Edited by
Koen De Feyter and
George Pavlakos
OXFORD AND PORTLAND, OREGON

2008
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Printed and bound in Great Britain by
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Contents
List of Contributors ...................................................................................xi
Abbreviations ..........................................................................................xiii
Introduction: Group Rights and Human Rights ........................................1
DANILO TRK
Part I. The Multidisciplinary Approach to Rights ..................................... 9
1. In Defence of a Multidisciplinary Approach to Human Rights ...........11
KOEN DE FEYTER
Part II. Origins of Rights (Genealogical Approaches) .............................. 39
2. On the Sociological Instrumentality of Human Rights and
Minority Rights ..................................................................................41
GERRIT-BARTUS DIELISSEN
3. Human Rights and the Anthropological Perspectives on the
Dynamics of Cultural Differences .......................................................71
M CALLARI GALLI
4. The Development of Minority Rights in Europe .................................89
LISANNE WILKEN
Part III. Are Rights Universal? .............................................................. 105
5. Gender Equality and Group Rights: Negotiating Just
Multicultural Arrangements ..............................................................107
SIOBHN MULLALLY
6. Lets Talk: Dealing with Difference in Human Rights Law ................131
RORY OCONNELL
7. Non-Individualism and Rights ..........................................................147
GEORGE PAVLAKOS
Part IV. Rights in Context ..................................................................... 173
8. Are Women Human? Prostitution and the Search for the
Right Rights......................................................................................175
REBECCA PATES
x Contents
9. School Communities and Childrens Rights.....................................193
GIOVANNA GUERZONI AND DANIELA SOCI
10. Citizenship: Anthropological Approaches to Migration and
Social Exclusion ..............................................................................207
BRUNO RICCIO AND GIUSEPPE SCANDURRA
11. Supporting Minority Rights: Inter-Group Determinants and
Consequences .................................................................................221
ANCA MINESCU
Part V. Rights in a Global World .......................................................... 243
12. The Protection of Groups and Group Rights in Europe ..................245
STEPHAN BREITENMOSER
13. International Human Rights Law in Theory and Practice ...............271
JEAN ALLAIN
14. Human Rights and International Relations .....................................287
NICOLA CATELLANI
15. Human Rights and Development Policies: Some Critical Issues
regarding the Idea of Community in the Development Field .........295
FEDERICA TARABUSI AND IVO GIUSEPPE PAZZAGLI
Index..................................................................................................... 309
List of Contributors
Jean Allain is Senior Lecturer in International Law at the School of Law,
Queens University Belfast.
Stephan Breitenmoser is Professor of European Law at the Faculty of
Law, University of Basel, and Judge at the Swiss Federal Tribunal of
Administrative Law.
Matilde Callari Galli is Professor emerita of Cultural Anthropology at the
Department of Education, University of Bologna.
Nicola Catelani is based at the Institute for Central Eastern and Balkan
Europe, University of Bologna. He holds a PhD in political science from the
London School of Economics.
Gerrit-Bartus Dielissen is Professor of Sociology at the Department of
Interdisciplinary Social Science, Utrecht University.
Koen De Feyter is Professor of International Law at the Faculty of Laws,
University of Antwerp.
Giovanna Guerzoni is Lecturer in Cultural Anthropology at the Department
of Education, University of Bologna.
Anca Minescu is a PhD Researcher, Department of Interdisciplinary Social
Science, Utrecht University.
Siobhn Mullally is Senior Lecturer in Law at the Faculty of Law, University
College Cork.
Rory OConnell is Senior Lecturer in Human Rights at the School of Law,
Queens University Belfast.
Rebecca Pates is Professor of Political Science at the School of Politics,
University of Leipzig.
George Pavlakos holds a Research Chair in Globalisation and Legal Theory
at the Faculty of Laws, University of Antwerp and is Sometime Professor
of Globalisation and Legal Theory at the School of Law, University of
Glasgow.
xii List of Contributors

Ivo Giuseppe Pazzagli is Lecturer in Cultural Anthropology at the
Bruno Riccio is Lecturer in Cultural Anthropology at the Department of
Education, University of Bologna.
Giuseppe Scandurra is Adjunct Faculty Member in Cultural Anthropology
at the Department of Education, University of Bologna.
Daniela Soci is Adjunct Faculty Member in Cultural Anthropology at the
Federica Tarabusi is Adjunct Faculty Member in Cultural Anthropology at
the Department of Education, University of Bologna.
Danilo Trk is the President of the Republic of Slovenia.
Lisanne Wilken is Lecturer in Anthropology at the Institute of History and
Area Studies, Aarhus University.
Abbreviations
CEDAW Convention on the Elimination of All Forms of Discrimination
Against Women
CERD
Convention on the Elimination of Racial Discrimination
ECHR
European Convention on Human Rights
ECSR
European Committee of Social Rights
ECtHR European Court of Human Rights
ESC
European Social Charter
HDR
Human Development Report
HRC
UN Human Rights Committee
ICCPR
International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural
Rights
OSCE
Organisation for Security and Co-operation in Europe
POP
planning education officer
UDHR
Universal Declaration of Human Rights
Introduction: Group Rights and

Human Rights
DANILO TRK
here was a time when the narrative of international action for

human rights had to be simple and straightforward. The Universal
Declaration of Human Rights was drafted during such a time.
During the preparation of the Universal Declaration its authors were aware
of the far-reaching nature of the project and of its complexity, as well
as of the need to proceed without undue hesitation. They were warned
by philosophers, anthropologists and sceptical political thinkers that no
global philosophical base existed for the Universal Declaration and that,
paradoxically, what did exist was a variety of cultures with vastly different
codes of social organisation, while at the same time the ideological split
between the East and the West allowed for very little agreement on the
essence and priorities of human rights. Nevertheless, the authors chose the
path of optimism and activism and pushed ahead with the Declaration.
They understood that what was required at that time was a simple and
straightforward approach.
There were good reasons for such a choice. The Second World War
was fresh in peoples memories. The knowledge that the seeds of the war
had been planted when totalitarian rule and denial of human rights had
prevailed in the critically important countries in Europe was still clear in
the conscience of the time. The Universal Declaration of Human Rights
was not motivated by the desire of the West to dominate the world but by
the need of the West to save itself from the dangers resulting from its own
vicestotalitarianism, racism and unbridled sovereignty of undemocratic
states. Firewalls had to be constructed against those vices and human rights
were accepted as the essential protection against the repetition of recent history. In order for human rights to serve that purpose they had to be given
great prominence and accepted as inherent in all human beings, equal and
universal. Not surprisingly, all of these qualities are emphasised in the first
preambular paragraph to the Universal Declaration. These were supremely
optimistic assumptions.
But the Universal Declaration is not only an historic document expressing
an unprecedented faith in human dignity and optimism about the prospect
of improvement of the human condition. It also recognised the complexity
2 Danilo Trk
and long-term nature regarding action for human rights. A good example of
the realism of the Declaration is reflected in its Article 28 providing that:
Everyone is entitled to a social and international order in which the rights and
freedoms set forth in this Declaration can be fully realised.
The Universal Declaration thus recognised that there is a long way between
the declaration of human rights and their full realisation, and that the path
to the realisation of rights leads through the establishment of an adequate
social and international order. The question of what constitutes such an
order and how it should be constructed was left for subsequent action and
has, indeed, become a major characteristic of human rights discourse in
the decades that followed. That action took various forms. At the international level, an emphasis was placed on international treaties and the treaty
implementation bodies and on the establishment of ever-more demanding
procedures for the implementation of human rights. Indirectly, a variety of
international structures gradually internalised the human rights standards
and helped to construct an improved international order. At the national
level, the content of the Universal Declaration of Human Rights shaped
the development of constitutional systems. Human rights have become an
indispensable part of the legal systems and have made a profound impact
on the social orders of a large number of countries around the world. All
this has certainly been an improvement of very significant proportion.
One of the most fundamental issues in the process of realisation of
human rights is expressed in relationships between the individual and the
community and between the individual and a variety of social groups in
which the individual exists. Human rights are essentially the rights of individuals: they have to be; only a firm status of the individual, defined in the
terms of human rights, can protect the individual against oppression of the
group or the society as a whole. But no individual lives in a vacuum, everyone belongs to more than one social group and to the society as a whole.
His or her right to belong is an essential feature of the realisation of his or
her human rights. It is axiomatic that the full realisation of human rights
proclaimed in the Universal Declaration requires careful balancing of the
rights of the individual and the social and cultural norms existing within
the relevant groups.
Legal recognition of groups and their rights and status historically predate efforts to achieve a comprehensive enactment of human rights. In the
past, a number of international treaties addressed the status of religious,
and later ethnic and national, minorities and had given legal expression
to protection of particular groups (protected minorities) against the power
of the states in which they lived. This regulation was initially motivated,
not by human rights concerns but by the need to find a necessary complement to territorial arrangements, so that international stability could be
maintained. When territorial arrangements resulted in the creation of
Introduction: Group Rights and Human Rights 3

minorities it became necessary to define the minoritys status, their rights
and protection. Not all the situations which necessitated minority protection were regulated in this manner and international law never developed
a coherent international system for minorities. Nevertheless, during the
period between the two World Wars a significant number of international
treaties in Europe provided for the protection of minorities. This gave rise
to a semblance of a system. The legal evolution in this context was not
insignificant. An example of that evolution was the recognition of the need
for special measures in favour of minorities (in fields such as language and
education) with a view to establishing equality in fact between the persons
belonging to minorities and other members of society.
However, as a whole, the arrangements historically developed were not
sufficiently effective. During the period between the two World Wars,
some among them (concerning in particular German minorities in Central
Europe) became the object of political manipulation which contributed to
instability and, later, to the outbreak of war. Little wonder, therefore, that
the protection of national minorities enjoyed little support in the creation
of the post-Second World War system. The proposals to insert provisions
for the protection of national minorities in the Universal Declaration of
Human Rights were rejected and the subsequent International Covenant
on Civil and Political Rights contains only a weak provision on the rights
of persons belonging to ethnic, religious or linguistic minorities. The general resentment to address the issues of minorities as part of the general
development of international law and human rights lasted well into the
period following the ending of the Cold War. But even the latest efforts
of the Council of Europe and the United Nations in the 1990s have failed
to create an effective system. The provisions on protection of minorities
continue to be weak, the treaties containing such provisions are not widely
accepted and the international declarations on the subject remain vague.
The historical experience of international regulation of group rights is,
therefore, not encouraging.
This evolution at the level of international law reflects a deeper social reality. Managing the issues which involve national, ethnic and religious minorities remains sensitive and has not yielded adequate results internationally.
The same can be said about the legal regulation of the majority of other
social groups whose importance for the actual realisation of human rights
is beyond doubt. The collective dimension of human rights has generally
eluded the efforts of international legislators.
An example which reaffirms such a conclusion is the international
discussion on the rights of indigenous peoples. These peoples generally
reject being assimilated into the notion of minoritya natural attitude
given that many among them represent a significant part of entire populations of states and are, in some cases, in fact, the ethnic majorities in
their respective countries. Nevertheless, the case law of the Human Rights
4 Danilo Trk
Committee and the practice of other international bodies have recognised
their entitlement, as a minimum, to the rights of minorities. But even this
minimalist approach has started to develop only recently and has addressed
only some among the major concerns of indigenous peoples. Their larger
agenda, expressed in the process of drafting the declaration on the rights
of indigenous peoples, has stalled several times, most recently in 2006 at
the level of the UN General Assembly. Its ultimate success is still uncertain.
Obviously, the issue of indigenous peoples carries with it specific problems,
most notably the issue of self-determination which continues to elicit fears
of undermining the territorial integrity of states. But even in areas where
such fundamental political problems do not exist, such as the area of land
rights, there has been relatively little progress.
In short, observing the question of individual and group rights from a perspective of international legal regulation leads to the conclusion that while
the issue is, in essence, historically known and well studied, it eludes efforts
to provide it with effective legal regulation at the international level. From the
point of view of international law the question of group rights remains largely
an issue of policy and the margin of discretion available to states continues
to be very wide. For this reason international law and, perhaps, law more
generally does not capture the richness of relations within groups and among
groups in a complex society. The texture of legal regulation, which can be
very sophisticated with regard to issues defining the relationship between the
individual and the state (for example, in the area of fair trial rights or the right
to freedom of expression) remains less developed with regard to the issues
affecting the relationship between the individual and his or her group, such as
the issues of domestic violence or traditional practices affecting the wellbeing
of women and girls. Even less clarity exists in the domain of collective rights
of different groups. Here, the diversity of groups itself may pose problems:
the status and rights of indigenous or historically established groups are likely
to be better defined than those of the groups resulting from current or recent
immigration. The cultural distance between various immigrant groups and
the majority population may vary and a single system of legal rules is difficult to devise and even more difficult to apply in a coherent manner. And
again, the government of the country concerned can opt for policies which
are defined by the necessary attention to individual rights without entering
deeply (or at all) into the realm of group rights. Such an approach might be
perceived as prudent or even necessary given the complexity of the issues at
hand and the individualist legal interpretation of human rights.
This situation calls for an interdisciplinary approach. Issues of human
rights cannot be left to lawyers alone. Policy formulation and subsequent
legal regulation require a solid understanding of the social reality or (in the
terminology used by lawyers) a solid factual foundation. Sociological analysis
is particularly valuable here because it can help us to understand how human
rights function in a complex social reality and how their effectiveness can be

improved. Political science analysis can help us understand circumstances in
which individuals human rights cannot function because of oppression of
entire groups. In some of these situations self-determination and independent
statehood become the only solution; or, more accurately, a necessary condition for effective enjoyment and full realisation of individual human rights.
An important aspect of situations which suggest such a conclusion is the
need for a full and sophisticated understanding of political circumstances.
Not all claims for self-determination are conducive to greater effectiveness
of human rights. Independent statehood may be desired and even legitimate
but still not achievable politically. While decolonisation had been a necessary
condition for effective enjoyment of human rights, a satisfactory level of
respect for and realisation of human rights after decolonisation has in many
instances not been achieved. An analyst addressing human rights issues in
this kind of situation necessarily has to draw from a number of disciplines
to reach convincing conclusions regarding the priorities of the human rights
agenda at a given time.
Sociology is particularly valuable among those disciplines necessary for
analysis and policy-making in the field of human rights. This is because
human rights norms are, in general, formulated in an abstract fashion and
emphasise the prescriptive aspect, while the descriptive element remains
relatively weak. It is necessary to develop a good understanding of the situations that human rights prescriptions are supposed to address in order to
give human rights norms adequate interpretation and effect. Policy-making
and legislation that is expected to give human rights a more specific legal
content can be successful only within the descriptive narrative which sociological analysis can provide. Part of that narrative necessarily has to relate
to the situation of social groups defined by economic and social status,
ethnicity, religion and other factors. This is precisely where human rights
norms need the most assistance.
Another perspective that becomes valuable in the process of realisation
of human rights is that offered by anthropology. It is important to pay
adequate attention to the issue of culture and the cultural identity of social
groups. Some groups may and others may not fall within the neat concept
of ethnic or religious communities, but all are still defined by culture.
Physical migration and lack of upward social mobility can be important
factors in defining the identity of some of the groups. These groups have to
be understood with reference to their cultural identity, which often requires
careful local research and sensitivity with regard to their positioning in
a wider society. In such situations the cultural context, once understood,
can help to properly contextualise the human rights priorities which need
to be included in the policy-making. The doctrine of human rights needs
to be thought through in the light of conclusions reached in the process
of anthropological analysis conducted at the local level and involving the
groups in question themselves.
6 Danilo Trk
Thinking about social groups with the proper understanding of political/
politological, sociological and anthropological dimensions is necessary for
the purpose of policy-making in the process of realisation of human rights.
It is interesting to compare the contemporary multidisciplinary approach
with the historical experience of protection of national, ethnic and religious
minorities. Protection of minorities as developed in Europe in the twentieth century continues to be relevant. In some situations business remains
unfinished (for example, in the area of language rights) and the provisions
for the official use of minority languages require permanent efforts for their
realisations. In other situations, new needs lead to new forms of coexistence
and mutual cultural permeation between minorities and the majority population. The role of NGOs, in particular those established by the minorities
themselves, is becoming more important and should be given serious and
critical thought. NGOs which have developed their profiles in the struggle
for minority rights may, once their basic objectives are achieved, require
redefinition and develop new priorities aiming at multicultural dialogue and
development of new forms of coexistence between different groups.
An approach to human rights which focuses on the realisation of these
rights in the sociopolitical context and is conducted with the necessary
cultural sensitivity can also help in the thinking on the meaning of universality of human rights. Universality need not be a context free legal or
philosophical concept. It can actually recognise the necessary margin of
appreciation and interpret human rights in a manner which does justice
to cultural sensitivity and dignity of culturesthe actual agents of human
dignity in many situations. A contextualised discussion of universality of
human rights necessarily requires acceptance of differences among different situations and recognition of importance of cultural identities of the
relevant groups. However, in approaching the issue of universality from this
angle it is necessary to keep in mind a sense of hierarchy. The margin of
appreciation cannot be allowed to turn into an escape clause, allowing the
basic precepts of human rights (such as the right not to be subjected to torture or inhuman or degrading treatment or the rights to physical integrity
and personal safety) to be circumvented. While a contextualised approach
to universality is helpful, it must not turn into an exercise of total cultural
relativism. Here, the standards enshrined in international human rights
instruments and their interpretation by international supervisory bodies can
help. In a particularly sensitive area such as the prevention of discrimination against women, it is important not to allow international standards
to be diluted by a practice of reservations which contravene the object and
purpose of the international standards themselves.
Another aspect which requires attention in any discussion on individual
rights and group rights and on abstract and contextualised universality of
human rights lies in the fact that groups are not homogenous. Therefore,
the recognition of the relevance of social groups for the realisation of

human rights has to include the understanding that, within the group itself,
there might be dissent or difference of opinion which needs to be taken
into account in devising policy. The margin of appreciation in the interpretation of universal human rights should take the reality of social groups
into account but should not lose sight of the fact that within a group itself
there could be different opinions concerning cultural or religious traditions.
There are no generally applicable formulae to deal with these issues. The
solution lies in process rather than in substantive norms. The need for a
deliberative and democratic dialogue is essential for dealing with these situations. And again, when a person belonging to a group deviates from the
groups culture and insists on his or her human rights (such as the right to
freedom of thought, conscience and religion, freedom of expression or freedom of movement) the presumption in favour of individuals human rights
must prevail over the cultural identity of the group.
Hypotheses like the ones suggested above require careful discussion and
empirical research. The present volume offers a great deal of material for
both. It makes a strong case in favour of a multidisciplinary approach
to human rights and explores the origins and social, anthropological
and legal/political dimensions of human rights and the internationally
recognised group rights. On that basis, a discussion on the universality of
human rights takes place. It explores legal issues such as the reservations
to international treaties and methodological questions, including the question of deliberative processes which allow seemingly absolute requirements
of human rights to be reconciled with culturally sensitive norms prevailing
within various groups. This part of the discussion ends with a philosophical
reflection on the universality of human rights focusing on the issue of the
legitimating role of human rights in contemporary normative discourses.
Given that the content of human rights norms is not precisely defined,
these norms are themselves subjected to the practice of universalisation. It
is important that such a practice strengthens the liberating effect of human
rights and maintains their legitimating function.
Based on such general considerations, the discussion in the present
volume continues with a focus on specific contexts which include the
situations of women, school communities, ethnic and linguistic minorities,
migrant communities and impoverished groups. These insights help us to
understand some of the specific circumstances in which the realisation of
human rights takes place and in which the variety of group identities plays
an important role in shaping the actual reach of human rights.
The final part of the volume discusses the current state of play of human
rights and group rights in international law, in international relations and in
the context of internationally sponsored development policies. This part of
the discussion offers a meticulous and critical presentation of the legal regulation of human rights and group rights and points to numerous weaknesses
which continue to exist and which call for additional work by legal thinkers
8 Danilo Trk
and practitioners. It also shows that the international relations discussion
on human rights remains relatively weak and dominated by non-human
rights considerations. Similarly, the international development policy processes which have, at the level of proclamation, included human rights in
policy pronouncements still have a long way to go to incorporate human
rights and group rights adequately into actual development practice.
The discussion of group rights, while always a part of the human rights
discourse, has been gaining importance in the past decade or so. This is not,
as the present volume shows, a result of a normative evolution but rather of
the needs felt in increasingly complex societies and of the questions raised
as to whether the normative world of human rights can offer meaningful
solutions to deal with the issues arising in this context. The path to such
solutions is likely to be long and will not yield results simply on the basis of
a legal exegesis. The narrative of human rights is becoming more sophisticated and capable of achieving the objective of the full realisation of human
rightsproclaimed in the Universal Declaration of Human Rights almost
60 years agocloser to reality.
Part I
The Multidisciplinary Approach

to Rights
1
In Defence of a Multidisciplinary
Approach to Human Rights
KOEN DE FEYTER
KNOWLEDGE THROUGH DISCIPLINE
n order to master knowledge, science approaches disciplines in terms

of divisions. If one wants to answer the question: who is a child? the
usual scientific approach is to divide the question into smaller disciplinary questions. This allows answers that are sufficiently precise and meaningful,
ie of practical use, to be provided. Depending on the discipline, the response
may consider the stage of physical development of the person, maturity of
behaviour, societal perceptions, or Article 1 of the Convention on the Rights of
the Child.1 Immediately, the limitations of a disciplinary approach become clear.
None of these responses fully catches our real-life experience of children.
Each discipline favours a different kind of evidence in order to define a
child. Deciding which of the perspectives should prevail probably varies with
the problem at handwhether she has the flu, refuses to go to bed, wants to
earn money, or wishes to live with her mother rather than her father. Article 1
of the Convention on the Rights of the Child has many merits, but deciding
what medicine my youngest son should take is not one of them.
A discipline thus allows certain types of evidence to be singled out, while
other aspects of the object of study can be left aside because they are not relevant within the disciplinary framework, and should be dealt with elsewhere,
and by others. Reality is complex, but the disciplinary lens allows us to make
sense of it, and to act on specific problems: Disciplinary boundaries are of
utility in advancing knowledge, because each discipline throws light on a set
of variables precisely because other factors are assumed to be external.2
1 See Convention on the Rights of the Child (20 November 1989), Art 1: For the purposes
of the present Convention, a child means every human being below the age of eighteen years
unless under the law applicable to the child, majority is attained earlier.
2 R Bank and D Lehmkuhl, Law and Politics and Migration Research in M Bommes and
E Moravska (eds), Reflections on Migration Research: Constructions, Omissions and Promises
of Interdisciplinarity (Aldershot, Ashgate, 2004), p 16.
12 Koen De Feyter
Depending on the problem, society turns to a different professionala
paediatrician, a social worker, a lawyerwho has specific expertise to offer.
There is no general expectation that each expert knows the other experts
field, even if all experts share the same object of study. Experts in one category
may confer with experts in the other category, but they mainly talk among
themselves. Disciplines create communities of competency3 that share a
specific set of goals, concepts, skills and methodologies. Vick points out4 that
distinctions between areas of knowledge are essentially a social construction,
strengthened by disciplinary education as a prerequisite for entry into a professional career. Once boundaries are settled, disciplines evolve their own modes
of discourse. New information needs are processed through a set of preexisting cognitive structures. Disciplines also maintain order and control; they
are a power structure through which decisions on inclusion or exclusion are
made. Disciplines exercise discipline, and are essentially self-regenerating.
Communities of competency thrive at universities. In the words of
Canadian political philosopher Ralston Saul, a university is:
A place in which civilizations knowledge is divided up into exclusive territories.
The principal occupation of the academic community is to invent dialects sufficiently hermetic to prevent knowledge from passing between territories. By maintaining a constant flow of written material among the specialists of each group
they are able to assert the acceptable technique of communication intended to
prevent communications. This in turn establishes a standard which allows them
to dismiss those who seek to communicate through generally accessible language
as dilettantes, deformers or populisers.5
At the same time, academics tend to celebrate individualism. Talk about duties
owed to the faculty and collective research is met with disgruntled appeals
to academic freedom. As Cervantes once remarked in a completely different
context: Its one thing to praise discipline, and another to submit to it. So,
inevitably, the insistence on disciplinary divisions creates a counter-reaction,
most visibly through the setting up of educational programmes (particularly
at the Bachelor level) that defy disciplinary boundaries, and refer back (at
least rhetorically) to historical ideas of unity and synthesis of knowledge.
Reese points out that in practice, multidisciplinary educational programmes are often limited to offering a taste of many disciplines. Integration
is not attempted. He picks out Cultural Studies as an example of an educational programme built on an amalgam of methods and points of view:
The chimerical and spectral term cultural studies is often invoked to describe an
allied group of approaches and attitudes. As Patrick Brantlinger asserted, cultural
3 The concept is borrowed from T Reese, Mapping Interdisciplinarity (1995) 77 Art
Bulletin 544.
4 DW Vick, Interdisciplinarity and the Discipline of Law (2004) 31 Journal of Law and
Society 167.
5 JR Saul, Doubters Companion: a Dictionary of Aggressive Common Sense (Toronto,
Penguin, 1994), p 301.
In Defence of a Multidisciplinary Approach to Human Rights 13

studies is conceived not as a tightly coherent, unified movement with a fixed
agenda, but as a loosely coherent group of tendencies, issues, and questions
[It] does not reflect a single field theory, or methodology, but makes use of
severalMarxism, feminism, deconstruction, psychoanalysis, ethnology.6
A different kind of pressure on disciplinary divisions came from the business world that urged the academic community to offer more general skills
training, and particularly skills not connected to the specific discipline.
Students of medicine should learn how to show empathy with patients,
lawyers should be able to negotiate and take classes on speaking in public,
and everyone should have multiple languages and master IT.
But the push to move beyond disciplinary boundaries is not limited to
the field of education. It also extends to research. In her classic book on
Interdisciplinarity, Klein offers the following list of objectives that interdisciplinarity seeks to achieve:
Educators, researchers, and practitioners have all turned to interdisciplinary work in order to accomplish a range of objectives:
to
to
to
to
to
answer complex questions;

address broad issues;
explore disciplinary and professional relations;
solve problems that are beyond the scope of any one discipline;
achieve unity of knowledge, whether on a limited or grand scale.7
In theory, a clear distinction can be drawn between interdisciplinarity and

multidisciplinarity. Multidisciplinarity refers to the sum total of knowledge
derived from different disciplines on a given subject. As a minimum, multidisciplinary work requires the mutual awareness of other (sub) disciplines
onthologies, epistemological assumptions and methodologies as indispensable preconditions for reaping the benefits of cooperation across disciplinary boundaries.8
Integration is key to an interdisciplinary approach. This may consist of
the use of a methodology that somehow escapes disciplinary limitations,
and catches reality more fully, or of the development of a grand theory on
a specific issue that is disconnected from any specific discipline, but is based
on an amalgam of methods and findings. Real research ventures, educational
programmes or strategies may defy easy classification under either label.
Even multidisciplinarity brings many risks. Most scholars only engage in
multidisciplinary work after completing a disciplinary training. In practice,
multidisciplinarity then means opening up to insights from disciplines that one
is almost inevitably less familiar with. Klabbers notes that interdisciplinarity
6
Reese, n 3 above.
JT Klein, Interdisciplinarity: History, Theory and Practice (Detroit, Wayne State University
Press, 1990), p 11.
8 Bank and Lehmkuhl, n 2 above, p 2.
7
14 Koen De Feyter
often presumes a flat, one-dimensional vision of the discipline-to-relate-with.9
This happens, for instance, when for the sake of expediency international relations theory is reduced to a single school of thought, such as realism, or to a
significant author within that school (say Morgenthau or Huntington).
A similar problem arises when concepts are borrowed from another discipline without the rigour that the discipline itself requires. A relevant example
is the widespread use of the notion of generations of human rights in legal
and political science-oriented research. Civil and political rights are referred
to as the first generation of human rights. Economic, social and cultural
rights are the second generation. Collective rights constitute the third. The
term generation is borrowed from history: the implication is that the historical development of human rights went through three successive phases.
Historians, however, point out that during previous centuries this linear
development of human rights never happened.10 Talk about generations of
human rights became popular during the Cold War period because it served
the agendas of different geopolitical groups. Perceiving of civil and political rights as the first generation allowed their importance to be stressed.
Ironically, during the Cold War period itself, the different categories of
human rights developed at a different pace at the international level, precisely because of the impact of the ideological divisions between East and
West, and North and South. Talk of generations of rights declined again
after the Cold War when, at the 1993 World Conference on human rights,
the United Nations officially proclaimed the equal importance of all human
rights. An appeal to multidisciplinarity may serve an agenda that would be
more difficult to achieve if disciplinary rigour applied.
The remainder of this text will discuss the merits of a multidisciplinary
approach to human rights. The starting point, however, will be law. There
are two arguments for starting with law. An objective argument is that after
1945, law became the dominant human rights discipline, for reasons set
out below. Multidisciplinarity in human rights mainly emerged as a critique
of an exclusively legal approach. It therefore makes sense to first explain
what that legal approach consists of. Subjectively, my own training is as a
lawyer. Law, and in particular international law, determines my perspective
on multidisciplinarity.11
It may be useful to briefly offer a flat one-dimensional view of law as a
discipline before moving into the area of human rights. Dictionaries define
law as a collection of rules of general application that govern the relationships between human beings and can be enforced by an authority. Lawyers
9 J Klabbers, The Relative Autonomy of International Law or the Forgotten Politics of

Interdisciplinarity (2005) 1 Journal of International Law and International Relations 37.
10 Compare M Freeman, Human Rights (Cambridge, Polity Press, 2002), p 39.
11 The choice for multidisciplinarity rather than interdisciplinarity in the title of this
chapter reflects this limitation.

mainly work with text (where the law can be found). Methodologically,
the essence of the discipline is to use particular interpretive tools and critical techniques in order to systemise and evaluate legal rules and generate
recommendations as to what legal rules should be.12 Interpretation is of
particular importance because although laws are generally applicable, they
need to be applied to specific instances of infinite variety.
LEGALISATION OF HUMAN RIGHTS AS PROGRESS
The inclusion of references to human rights in the UN Charter and the

subsequent adoption by the United Nations of the Universal Declaration
of Human Rights (UDHR) in December 1948 served as the starting point
for the legalisation of human rights at the international level. Human rights
violations became an issue of legitimate international concern to which, if
the violations were sufficiently serious, the defence of domestic sovereignty
was of no avail.
The Universal Declaration has had, in the words of Richard Falk, an
extraordinary cumulative impact on the role of human rights in international
political life.13 The adoption of the UDHR boosted the idea that human
rights were of universal validity, and the text still enjoys wide support in
both governmental and civil society circles. The Universal Declaration has
acted as a persuasive, liberating force for individuals and groups14 even in
contexts unforeseen by the drafters of the text (such as decolonisation).
In law, the Universal Declaration was a non-binding resolution of the
UN General Assembly, but it set the direction for the standard setting and
monitoring activities of the United Nations in the field of human rights.
International human rights law developed out of the UDHR. The United
Nations currently identifies seven core international human rights treaties that are binding on the states that become a party to them.15 With
12 DW Vick, Interdisciplinarity and the Discipline of Law (2004) 31 Journal of Law and
Society 165.
13 R Falk, Human Rights Horizons (London, Routledge, 2000), p 53.
14 J Lindgren Alves, The Declaration of Human Rights in Post-modernity (2000) 22
Human Rights Quarterly 500.
15 The core international human rights treaties are: International Convention on the
Elimination of All Forms of Racial Discrimination, 21 December 1965 (173 states parties);
International Covenant on Civil and Political Rights, 16 December 1966 (160 states parties); International Covenant on Economic, Social and Cultural Rights, 16 December 1966
(155 states parties); Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW), 18 December 1979 (185 states parties); Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984 (144
states parties); Convention on the Rights of the Child, 20 November 1989 (193 states parties); International Convention on the Protection of the Rights of All Migrant Workers and
Members of their Families, 18 December 1990 (35 states parties). Status of ratification on
6 December 2006, except CEDAW, status of ratification on 2 November 2006 and Migrant
Workers Convention, status of ratification on 25 January 2007.
16 Koen De Feyter
the exception of the Migrant Workers Convention, the treaties have been
widely ratified. Non-ratifying states are still bound by human rights law to
the extent that human rights have become part of customary international
law. Both the International Court of Justice and the international criminal
tribunals have asserted in their case law that (a number of) human rights
have achieved the status of international customary law.16 The normative development of international human rights law still continues (the
International Convention on the Rights of Persons with Disabilities was
adopted on 13 December 2006, and the International Convention on the
Protection of all Persons from Enforced Disappearance was adopted on
6 February 2007), but it can safely be said that a comprehensive body of
international human rights law now exists that entails binding obligations
for all states.
The human rights treaties provide for committees of experts that monitor
the implementation of the treaty provisions by their states parties. Some of
these monitoring bodies dispose of individual complaint procedures that
produce non-binding decisions. The development of these procedures has
contributed to the recognition that individuals now enjoy (limited) international legal personality, ie that they hold rights and duties directly under
international law that they can enforce autonomously.
The UN Charter-based political bodies, which consist not of individual
experts but of governments, complement the treaty monitoring bodies. For
decades the most important among these bodies was the UN Commission
on Human Rights. On 15 March 2006, the UN Human Rights Council
replaced this body.17
Since 1993, the High Commissioner for Human Rights has served as
the principal UN official with responsibility for human rights. Canadian
national, Louise Arbour, currently holds the post. Her office provides
administrative and substantive support to the treaty monitoring bodies and
the UN Charter-based bodies, but it also has the more substantial tasks
of supporting human rights at the domestic level, and of mainstreaming
human rights in the whole of the United Nations system (including at the
UN Security Council and the UN specialised agencies, many of which have
some concern for human rights, but not necessarily consistent policies).
Developments at the international level coincided with the legalisation of
human rights at the regional level (in the context of regional intergovernmental organisations, such as the Council of Europe, the Organisation of
16 See J Oraa, The Universal Declaration of Human Rights in F Gomez and K De Feyter
(eds), International Protection of Human Rights: Achievements and Challenges (Deusto,
University of Deusto, 2006).
17 For a handbook on the new body, see M Abraham, A New Chapter for Human Rights:
a Handbook on Issues of Transition from the Commission on Human Rights to the Human
Rights Council (International Service for Human Rights and Friedrich Ebert Stiftung, 2006).

American States and the African Union) and at the domestic level (human
rights were included in numerous domestic constitutions and in national
legislation).
The building of a global legal architecture, including norms and institutions at various levels of regulation, constituted tremendous progress for
human rights. As Donnelly points out, the demands of most human rights
advocates and victims today still typically involve direct or indirect appeals
for effective legal protection or redress.18 Law brought enforceability to
human rights in many parts of the world. Individuals who felt that their
rights were violated could stand up for themselves in court instead of having to rely on benevolence. Those entrusted with providing protection
became accountable.
The process of legalisation of human rights also established law as the
dominant discipline in human rights. Many lawyers perceive of legalisation as the final phase in the development of human rights. Legalisation
perfected human rights. They moved from the realm of ideas to the world
of practical solutions. As codification and confidence progressed, the argument emerged that only legal rights could qualify as human rights. Human
rights that could not be enforced through law were not rights at all; they
were mere claims. Lawyers taking this line were at least implicitly declaring
other disciplines irrelevant, or at best of secondary importance to human
rights. In Donnellys words:
Law interacts with but it is also distinct from both morality and politics Legal
norms ordinarily trump not only mere preferences but appeals to social utility
It is thus of immense practical importance that virtually all states have accepted
human rights as a matter of positive international legal right.19
The essence of the legal art of human rights consists of the application of
human rights law to a specific case. A human rights lawyer confronted
with an individual complaint alleging a violation (usually by the state) goes
through a number of steps in order to assess whether the law was violated
in the specific instance. Nowak describes the process as follows:20
Scope of applicationdoes the measure that is complained of involve a human
right as defined in the applicable law?
Interferencedoes the measure interfere with a human right?
Justificationare there grounds for justifying interference, and if there are, has
the proportionality principle been respected (does the measure not go too far even
if the aim of the restriction was legitimate)? Without justification (lawful restriction), an interference amounts to a violation.
18 J Donnelly, The Virtues of Legalization in S Meckled-Garcia and B Cali (eds), The
Legalization of Human Rights (London, Routledge, 2006), p 77.
19 Ibid p 69.
20 M Nowak, Introduction to the International Human Rights Regime (Leiden, Martinus
Nijhoff, 2003), p 57.
18 Koen De Feyter
Perhaps a further step could still be added:
Reparationif a violation is established, was a remedy provided to the victim
resulting in adequate reparation of the damage?
Such a test can easily be applied to a situation involving a tension between

individual and group rights. A government may wish to prohibit the screening of a film in an art cinema because it deems the film offensive to the
feelings of the religious majority in the region, and because it fears riots will
break out if the film is shown.21 Clearly, the ban falls within the scope of
freedom of expression, and constitutes an interference with the individual
right of the film-maker to publicly express an opinion. The government
may invoke deference to majority views and the need to maintain public
order. Even if that justification is accepted, the government will need to
show that prohibiting the screening was really necessary to achieve the
aim. Could measures less restrictive of the film-makers freedom not have
achieved the same aim? If the government fails to convince, a violation is
established, and a remedy needs to be provided. Would the delayed release
of the film be sufficient or should monetary compensation also be offered
to the film-maker and the owner of the cinema?
Usually the person in charge of deciding these questions is a judge. Judges
play an essential role in human rights law, because human rights norms
tend to be formulated in general terms, and in case of a conflict between
the parties on how a norm should be interpreted in a specific case, the judge
will have the final say. The application of the proportionality principle in
particular involves a degree of personal assessment. The profile of the judge
clearly matters. Ideally, judges have been trained in human rights law, and
are therefore able to successfully resolve difficult problems involving different moral standpoints, that would not easily be solved through politics.22
On the other hand, the political or societal context may also influence the
judge. Context may explain why judges give divergent interpretations to
the same international treaty in different domestic legal orders.23 In any
case, as Freeman points out,24 giving a key role to judges is not a politically
neutral choice, and the ideal judge that human rights law has in mind, may
not materialise in reality.25
21 Compare Otto Preminger Institute v Austria, European Court of Human Rights,
13470/87 [1994] ECHR 26 (20 September 1994).
22 Compare B Cali and S Meckled-Garcia, Introduction in S Meckled-Garcia and B Cali
(eds), The Legalization of Human Rights (London, Routledge, 2006), p 3.
23 Bank and Lehmkuhl offer the example of the diverse interpretations by national courts of
the refugee definition in the Geneva Convention relating to the Status of Refugees, 1951, and
particularly the issue of whether persons persecuted by private actors come within the scope
of the definition. See Bank and Lehmkuhl, n 2 above, pp 34.
24 M Freeman, Putting Law in its Place in S Meckled-Garcia and B Cali (eds), The
25 For a sobering global survey of the conditions in which judges work, see S Oxner, The
Quality of Judges (2003) 1 World Bank Legal Review 307.

Different meanings have been attached to the term group rights. There
was no particular difficulty in achieving legal recognition of rights of specific categories of human beings. Each time, the argument was that there
was a need to complement the protection available under general human
rights treaties with tailored provisions providing additional protection for
the relevant category. Even some of the core treaties deal with categories
of persons: women, children and migrant workers. Somewhat perplexingly,
the CEDAW Convention and the Convention on the Rights of the Child
are now more widely ratified than the generally applicable human rights
covenants. Additional human rights instruments deal with refugees, victims
of trafficking, older persons, human rights defenders, and so on. The list
will no doubt continue to expand. Some controversy remains about why
some categories are singled out and others not, about whether the effect of
singling out a category makes it more difficult for members of that category
to access general human rights protection, and on whether the inflation of
special regimes undermines the general applicability of human rights.
Far less progress has been achieved in the legal recognition of collective
rights at the international level. The right to self-determination makes a
proud appearance as common Article 1 of the 1966 International Covenants,
where it is defined as the right of a people:
All peoples have the right of self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural development.26
In post-colonial practice, the right to self-determination has been understood (with a few high profile exceptions like the Blacks in South Africa
during the apartheid regime and the Palestinians) as the right of a population of an existing state to be protected against foreign domination, rather
than as the right of a group sharing common characteristics to set up a state
or to autonomy within a state.
In the 1970s and 1980s, a proposed new category of collective solidarity
rights was much discussed.27 These rights would have included not only
the domestic state as the duty holder in human rights, but the international
community as a wholehence the reference to solidarity. The right to development stems from this tradition and has achieved a degree of legal recognition. The right to development is also part of the UN High Commissioners
brief, but its precise implications remain as controversial as ever.28
26
International Covenant on Civil and Political Rights, 19 December 1966, Art 1, para 1.
For the start of the discussion, see K Vasak, Le droit international des droits de lhomme
(1972) 51 Revue des Droits de lHomme 43, and for a recent assessment see F Gomez,
International Protection of Human Rights in F Gomez and K De Feyter (eds), International
Protection of Human Rights: Achievements and Challenges (Deusto, University of Deusto,
2006), p 35.
28 Compare K De Feyter, Human Rights: Social Justice in the Age of the Market (London,
Zed Books, 2005), pp 11114.
27
20 Koen De Feyter
Discussions on minority rights and rights of indigenous peoples are certainly alive, also in the context of whether the right to self-determination
should apply to groups within states. Collective rights of groups go beyond
individual human rights in that they directly challenge territorial divisions
among states, or within states. Collective rights of groups are not primarily
about limitations or duties that the state needs to take into account when
exercising authority, but about whether the state is entitled to exercise
authority at all. Precisely because they often imply a direct challenge to the
authority of the state, it should come as no surprise that the community of
states in its capacity as international legislator has been reluctant to give
much legal recognition to this category of rights.
PERSPECTIVES ON HUMAN RIGHTS LAW FROM OTHER DISCIPLINES
Explaining the Limits of Law

Lack of Compliance
Lack of compliance is a major problem in human rights law. There is a gap
between the norms that are proclaimed and their actual implementation.
The legal discipline can offer a partial explanation of why this is so.
Human rights norms can be evaluated. Their weaknesses can be discovered. Recommendations can be formulated as to how wording can be
improved. Any student of human rights law will establish very quickly
that international human rights treaties include norms that are imprecise
or conditional, and that international monitoring mechanisms provide few
remedies. There is no legal reason why these flaws could not be remedied.
Dispute settlement bodies in international trade law, for instance, routinely
impose legally binding decisions and sanctions in case of non-compliance.
Nevertheless, disciplines other than law offer more in-depth explanations
of why problems of compliance arise at a particular regulatory level. They
identify factors from outside the legal sphere:
while the lawyer looks at the letter and system of the law and therefore at the visible outcome, the political scientist looks at the processes which led there instead,
the politics lying behind it, and how things work in practice, reflecting a large
variety of influential factors.29
A real understanding of compliance problems in international human rights

requires building on insights from international relations theory, for the
simple reason that international human rights law is a product of the international relations between states. It is a principle of international law that
states can only be bound by their own consent, and thus cannot be forced
to ratify international human rights treaties. But it is international relations
29
Bank and Lehmkuhl, n 2 above, p 6.

theory that explains why states undertake international commitments or
refuse to do so, why other states insist on compliance or not, and whether
states are vulnerable to such pressure or not. Those factors are essential in
understanding the selectivity of the United Nations political human rights
bodies, or the weaknesses of the wording and the monitoring mechanisms
in the treaties:
There is a continuous attempt to balance the interests identified by human rights
claims with the interests of political community, the State and nation. That
continuous attempt is characteristic of international human rights law. It is also
the source of discrepancy between human rights ideals and international human
rights law.30
Insights from international relations theory are essential in order to assess

objectively what the international human rights regime can and cannot
achieve: not in order to sell out to the realists31 but in order to devise a
human rights strategy that uses the different regulatory levels as effectively
as possible.
Sociology is traditionally concerned with understanding similarities and
differences in the way societies develop. These are made clear through
cross-cultural comparison and by identifying variables that impact on
and explain social action. Human rights gradually became sufficiently significant to be studied as a variable: an external (part of the international
environment that influences how societies develop) or internal (a value
supported by domestic social groups) factor that influenced social action at
the domestic level.
When sociologists turn to human rights as a study object, their interest is
in the social construction of rights, ie they will point out that human rights
are historically situated and contextually bound:
Rights are neither self-generated nor self-enforcing, but rather summarise, make
concrete, and depend for much of any protective effectiveness they may possess
on the nature of wider sets of social relations and developments within them.32
Sociologists are therefore also able to offer explanations of why human

rights compliance varies in different societies. In her study on abuse of personal integrity rights in three societies (Cuba, El Salvador and Nicaragua),
Gomez describes her methodology as comparative-historical sociology.
This involves the use of analytical historic narrative allowing her to
sequence and order historical events, which can be studied for their causal
significance. The comparative component aims at defining the limitations
30 S Meckled Garcia and B Cali, Lost in Translation in S Meckled-Garcia and B Cali (eds),
The Legalization of Human Rights (London, Routledge, 2006), p 25.
31 J Klabbers, The Relative Autonomy of International Law or the Forgotten Politics of
Interdisciplinarity (2005) 1 Journal of International Law and International Relations 41.
32 A Woodiwiss, The Law Cannot be Enough in S Meckled-Garcia and B Cali (eds), The
22 Koen De Feyter
of theory generalisation and establishing an empirical basis for policymaking.33 Gomez identifies both internal and external factors that explain
shifts in degree and types of abuse over time. The external factors include
geopolitical shifts, external support of abusive regimes, external threats,
international peace initiatives and international normative criticism. The
internal factors include internal threats and pressures, sudden and undemocratic regime changes and state fragmentation.34 Although law is relevant
in framing some of these factors (laws can facilitate international criticism,
formally protect territorial integrity and democracy, etc.), the significance
of law is not highlighted. Rather than law, the key concept used in the study
to explain change in behaviour is pressure that is conceptualised as operating on a continuum which ranges from threat to support,35 and can
be internal as well as external.
Another more recent sociological contribution focuses on the effectiveness of global human rights campaigns by transnational advocacy networks.36 Interestingly, the scope of this research may well extend beyond
how such networks impact on domestic society, and focus instead on the
global society, ie on how social interaction takes place at the international
level. As a consequence of globalisation, global social spaces have now
become a valid object of sociological or anthropological research.37 Studies
on how civil society campaigns influence international standard setting or
the creation of new international institutions38 are a good example of this
type of research.
OByrne makes a conscious effort to analyse various human rights problems, such as genocide, from a multidisciplinary perspective.39 No doubt a
valid starting point for a study on genocide is the legal definition contained
in the 1948 UN Genocide Convention:40
In the present Convention, genocide means any of the following acts committed
with intent to destroy, in whole or in part, a national, ethnical, racial or religious
group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
33 M Gomez, Human Rights in Cuba, El Salvador, and Nicaragua: a Sociological Perspective

on Human Rights Abuse (London, Routledge, 2003), pp 858.
34 Ibid pp 18491.
35 Ibid p 92.
36 A term coined by M Keck and K Sikkink in their Activists Beyond Borders (Ithaca,
Cornell University Press, 1998).
37 For an interesting example of such an approach, see Engle Merrys analysis of global
human rights negotiations in S Engle Merry, Human Rights and Gender Violence (Chicago,
University of Chicago Press, 2006), pp 3671.
38 See eg P Gready (ed), Fighting for Human Rights (London, Routledge, 2004).
39 DJ OByrne, Human Rights: an Introduction (Harlow, Pearson, 2003).
40 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December
1948, Art 2.

(c) Deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Clearly, the legal prohibition of genocide did not prevent the occurrence
of a number of genocides after the Second World War, even if states ratifying the Convention were under a legal obligation to prevent genocide.41 A
legal critique of the Convention may show that the international definition
omits social and political groups as victims of genocide (the mass killings
perpetrated by the Khmer Rouge in Cambodia were ideologically driven)
and that a monitoring mechanism is completely absent.42 But as OByrne
points out, an explanation of why genocide occurs requires going beyond
the defects of the Convention. The genealogy of genocides needs to be
traced over time. An insight into theories of human nature is necessary in
order to understand the psychology of perpetrators. A study of the nature
of societies will explain under what conditions they develop a capacity for
genocide.43 These conditions include scarcity and unequal distribution of
resources, with rival groups competing to achieve control, and thus point
to the usefulness of a political economy44 analysis. It also follows that only
a multidisciplinary strategy is able to address the prevention of genocide in
a meaningful way.
Limited Impact of Litigation
The preferred strategy for establishing violations and ensuring reparation in
human rights law is the litigation of individual claims. Assessments of violations depend on an analysis of the specificities of the individual case under
review. Not only are human rights formulated as individual rights, access to
procedures both at the domestic and at the international level that provide
remedies are open primarily to individual claimants, even if the purpose of
the complaint is to highlight the plight of a community or a structural cause
of violations (such as gender discrimination or poverty).
The individualisation of human rights claims does not facilitate dealing
with group matters. The complaints procedure attached to the International
Covenant on Civil and Political Rights (ICCPR) offers a case in point. While
the Covenant includes the collective right to self-determination, the UN
Human Rights Committee (the ICCPR monitoring body) has held that only
41
Ibid Art 8.
The Statute of the International Criminal Court was adopted in 1998, 40 years after the
Genocide Convention.
43 OByrne, n 39 above, pp 299336.
44 Political economy focuses on the interaction between the market and the state, both at
domestic and international levels.
42
24 Koen De Feyter
individuals claiming violations of their individual human rights can access
the complaints procedure under the Optional Protocol to the ICCPR.45 It is
therefore impossible to argue a violation of the right to self-determination
before the complaints procedure of the UN Human Rights Committee.
Although decisions by courts or monitoring bodies establishing a violation may award individual damages to the plaintiff, they will usually not
consider the collective dimensions of the complaint:
The European Courts case law unreservedly adheres to these traditional views.
Even in the cases of gross violations with a discriminatory connotation against a
specific group of people (such as the destruction of houses and villages of Kurds
in the South-East of Turkey), the Court adopts a strict individualistic approach
to financial compensation and it never has awarded damages to a community of
people or to a village as such.46
Any positive impact on the community will have to occur indirectly, by way
of a trickle-down effect that the publicity attached to the case may generate.
In the end, governmental action in favour of the community as a whole, or
in favour of those in similar situations, may or may not take place. Judicial
bodies sometimes order that appropriate legislative reform should be
undertaken in order to avoid a repetition of the violation, but such orders
usually leave a wide margin of discretion to the executive.
The repercussions of the Grootboom decision of the South African
Constitutional Court offer a good illustration. The Grootboom judgment
received enormous attention at the international level as a breakthrough case
on the justiciability of economic, social and cultural rights. The case was
brought by 900 people who had erected dwellings on vacant land that was
privately owned. When faced with eviction, they brought a complaint before
the Constitutional Court based on the right to housing, which is guaranteed
by the South African Constitution. According to the Constitutional Court, the
Constitution did not oblige the state to provide basic shelter immediately upon
demand, but it did require a housing programme with measures that were
reasonable both in their conception and implementation. It was unreasonable
45 See eg Lubicon Lake Band v Canada, UN Human Rights Committee, Communication

No 167/1984 (26 March 1990) UN Doc Supp No 40 (A/45/40) at 1The Committee added
that there was no objection to a group of individuals, who claim to be similarly affected, collectively to submit a communication about alleged breaches of their rights. The case involved
indigenous people in Canada who argued that their right to self-determination was violated by
commercial logging activities on their territory to which they had not consented.
46 H Rombouts, P Sardaro and S Vandeginste, The Right to Reparation for Victims of Gross
and Systematic Violations of Human Rights in K De Feyter, S Parmentier, M Bossuyt and
P Lemmens (eds), Out of the Ashes: Reparation for Victims of Gross and Systematic Human
Rights Violations (Antwerp, Intersentia, 2005), p 391. For a rare example of a collective
compensation award, see M Nowak, Reparation by the Human Rights Chamber for Bosnia
and Herzegovina in K De Feyter, S Parmentier, M Bossuyt and P Lemmens (eds), Out of the
Ashes: Reparation for Victims of Gross and Systematic Human Rights Violations (Antwerp,
Intersentia, 2005), p 254.

that the nationwide housing programme failed to recognise that the state must
provide relief for those in desperate need.47
Although very important in principle, the practical impact of that judgment both for the community and the society at large remained limited,
primarily because the Court refrained from ordering concrete measures or
from identifying a branch of the government responsible for implementation. A newspaper journalist who visited the area four yours later found
that the living conditions of the community were as inhuman as they were
at the time of the judgment. None of the state authorities at any of the
different levels took full responsibility for implementing the judgment.48
In addition, according to a recent study, the Courts intervention did little
to change access to basic emergency shelter in South Africa generally.49
Arguably, the Constitutional Court should have taken a more proactive
stance and should have awarded more coercive relief, but nevertheless limits remain as to the remit of judicial organs (as opposed to legislative and
executive organs) to set policy.
Clearly, the impact of litigating cases on the human rights situation in the
society at large varies. Legal victories in human rights cases may be of symbolic value, and of immediate practical use only to the individual claimant.
The impact on society as a whole depends on politics and social action, not
on the judgment as such. Some have argued that establishing accountability
for individual human rights violations can even be counter-productive from
a human rights point of view, because a focus on individual violations may
create the false impression that structural causes underlying the violations
are addressed, and impede real action. Mamdani thus developed the argument that it is less important for the future of human rights in post-genocide
Rwanda to hold perpetrators of human rights violations accountable than to
transform the racist and hierarchical structure of the Rwandan government
and society.50
Legalisation as Closure
Another critique of the legalisation of human rights is that it reduces the content of human rights to their legal definition. Although it is clearly advantageous to the victim that she is able to argue human rights in law, care should
be taken not to define human rights in terms of their legal content alone.
47 Republic of South Africa and others v Irene Grootboom and others, Constitutional
Court of South Africa, Case No CCT 11/00.2000 (11) BCLR 1169.
48 See B Schoonakker, Treated with Contempt, Sunday Times (South Africa), 21 March
2004.
49 R Dixon, Creating Dialogue about Socio-Economic Rights: Strong v. Weak-form Judicial
Review Revisited, Working Paper no 3 (New York, NYU School of Law, 2006), p 2.
50 M Mamdani, When Victims Become Killers: Colonialism, Nativism and Genocide in
Rwanda (Princeton, Princeton University Press, 2001), pp 2706.
26 Koen De Feyter
Both the UN Charter and the Universal Declaration of Human Rights
avoid taking a position on the philosophical origin of human rights. The
large majority of those involved in drafting the texts agreed on a common understanding of human rights, but their philosophical justifications
varied. The Preamble to the UN Charter acknowledges that the source of
human rights lies outside international law by reaffirming faith in fundamental human rights, rather than simply providing for them. Similarly, the
Universal Declarations Preamble refers to the recognition of the inherent
dignity and of the equal and inalienable rights of all members of the human
family. On the one hand, it is important that the documents recognise that
law is not the source of human rights, because this allows further normative
development in human rights. By failing to identify the source of human
rights, however, the documents give no direction to this process, leaving the
field wide open to power politics.
Freeman thus perceives of the Universal Declaration and the subsequent
legalisation of human rights as an attempted point of closure of the debate
on the philosophical justification of human rights. Ignoring the philosophical origin of human rights is a problem, however, because if the concept of
human right has no philosophical justification, then its claim to have moral
force is unfounded.51
In reality, as codification progressed, the earlier norms set the direction.
Proposals on new (aspects of) human rights had to fit within the confines
of existing legal norms, and within the confines of existing legal techniques.
There is no philosophical reason why only states (and not corporations, for
instance) should have human rights obligations, but in current international
law technically only states can ratify treaties containing legal obligations,
which explains why the whole international protection system is based on
the state as the duty holder, even if in practice many other actors may abuse
human rights.
For Baxi, the adoption of the Universal Declaration was of great importance, because it meant recognition by the international community of
those whose suffered abuse, regardless of where they were. He conceives
of peoples and communities as the primary authors of human rights. Their
resistance to (abusive) power:
at a second order level [is] translated into standards and norms adopted by a community of states. In the making of human rights it is the local that translates into
global languages the reality of their aspiration for a just world.52
At the same time, the Universal Declaration was the starting point of a
codification process based on negotiations among governments (who have
51
M Freeman, Human Rights (Cambridge, Polity Press, 2002), p 42.

U Baxi, The Future of Human Rights (New Delhi, Oxford University Press, 2002),
p 101.
52

legislative power in international law). The adoption of international norms
created a distance between those experiencing abuse, and those deciding
whether that abuse qualified as a human rights violation:
when read sociologically, the coverage, content, inclusions and exclusions of
rights texts tell us not only who is protected against what, but also the sort of
people and the aspects of social relations that are especially valued (or not) by
the governmental body responsible for constructing, approving and enforcing the
regime.53
Governmental negotiations on human rights reflect the same power relations that determine the whole of international relations, and so outcomes
will reflect the interest of hegemonic states. The search for broad coalitions
also leads to an international human rights law that focuses on the lowest
common denominator. The result is that human rights:
As they are now predominantly understood are a kind of Esperanto, which can
hardly become the everyday language of human dignity across the globe.54
In the increasingly complex UN human rights architecture, very little

remained of the bottom-up process of rights discovery that Baxi celebrates,
so much so that rediscovering peoples and communities as primary authors
(a process I have described elsewhere as localising human rights)55 is now
a major challenge for the global human rights system, at least if the local
relevance of human rights to Everyman is to improve.
Poor communities may not recognise what they define as their primary
human rights needs in international human rights law as it stands today.
They may prefer some other language of resistance in their attempt to
achieve human dignity:
social movements pose a central challenge to international law in several areas.
First, they seek to displace the liberal theory of international politics with a
cultural politics that seeks alternative visions of modernity and development by
emphasising rights to identity, territory and autonomy. Second, they show that
the mainstream human-rights discourse is extremely limited which does not have
the cognitive ability to see much of the resistance of social movements. Engaging
with the theory and practice of social movements is necessary to convert humanrights discourse from its narrow, state-centred, elitist basis to a grassroots-oriented
practice of the subalterns.56
53
Woodiwiss, n 32 above, p 33.

B De Sousa Santos, Towards a Multicultural Conception of Human Rights in
F Gomez and K De Feyter (eds), International Protection of Human Rights: Achievements
and Challenges (Deusto, University of Deusto, 2006), p 69.
55 K De Feyter, Localizing Human Rights in W Benedek, K De Feyter and F Marrella
(eds), Economic Globalisation and Human Rights (Cambridge, Cambridge University Press,
2007), p 6792.
56 B Rajagopol, International Law from Below (Cambridge, Cambridge University Press,
2003), p 271.
54
28 Koen De Feyter
So it would seem that from a social justice perspective, there are two possible options: either reinterpreting human rights so as to open them up
to human rights needs as locally perceived (with local perceptions to be
established on the basis of social science research), or accepting the limitations of the human rights discourse and invoking other concepts to achieve
a dignified life for more people. Such other concepts could include notions
like (global) justice, solidarity, equity,57 and so on.
Nevertheless, some groups are able to connect local agendas even
to current international human rights law. In a fascinating account on
the struggle of the Ogoni to achieve participation in oil exploitation in
Nigeria, Bob58 shows that the reframing by the Ogoni of their claims in
terms of human rights and environmental policies was essential in raising
international awareness about their plight. The original Ogoni agenda
was drafted in response to the domestic political context and focused on
achieving political autonomy in Nigeria. Internationally, this was not a
popular cause. Only when Ogoni organisations started highlighting environmental abuses caused by a major transnational corporation, and the
violence used by Nigerian security forces against Ogoni opponents, were
they able to put the Ogoni issue on the international agenda, first of major
non-governmental organisations, and subsequently of the international
community as a whole.
Similarly, gender-based NGOs in India until the 1980s framed their activities in terms of social work or economic development. The same NGOs
now use the language of violence against women and human rights.
The change came about as a consequence of global networking; the use of
human rights terminology enabled the groups to connect to UN organised
conferences, coalitions working on womens rights, and international donor
agencies. Singh59 points out that there is a risk in reframing local issues in
this way, namely a loss of identity for the organisation and a loss of control:
57 Note that even the European Unions draft Constitutional Treaty (29 October 2004)
offers a catalogue of values next to human rights on which its internal and external policies are
based: Article I-2 The Unions Values: The Union is founded on the values of respect for human
dignity, freedom, democracy, equality, the rule of law and respect for human rights, including
the rights of persons belonging to minorities. These values are common to the Member States
in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality
between women and men prevail. The 2006 World Bank Development Report advocates taking explicit account of equity in determining development priorities: public action should aim
to expand the opportunities of those who, in the absence of policy interventions, have the least
resources, voice, and capabilities. See World Bank, World Development Report 2006: Equity
and Development (Washington, World Bank, 2005).
58 C Bob, Globalization and the Social Construction of Human Rights Campaigns in A
Brysk (ed), Globalization and Human Rights (Berkeley, University of California Press, 2002).
59 JP Singh, Transnational, National or Local? Gender-based NGOs and Information
Networks in India in S MacLean, F Quadir and T Shaw (eds), Crises of Governance in Asia
and Africa (Aldershot, Ashgate, 2001).

the change in vocabulary influences the development of the groups agenda,
and may make it much more vulnerable to external influence (eg by donors
that push their own preferences).
Community organisations need to be strategic in the use they make of
international human rights law, in order not to become irrelevant to issues
that have important local, but little global, relevance or appeal. On the
other hand, if international human rights law is to become more inclusive in
terms of the protection it offers, it needs to open up more to human rights
needs as defined by local communities. From a methodological perspective,
much can already be achieved by interpreting existing human rights norms
in the light of data collected through social science methods on how these
norms relate to the living conditions of the relevant communities and how
the communities themselves perceive of them. The final section of this chapter takes up this issue.
Opening Up Law
Articles 31 to 33 of the Vienna Convention on the Law of Treaties provides
rules on how treaties are interpreted in international law.60 The Convention
establishes a hierarchy of interpretative methods.
According to the Vienna Convention, primacy should be given to the
ordinary meaning of the text when such a reading leads to a reasonable
result. The ordinary meaning is the meaning as understood by the relevant
disciplinary community, traditionally defined as the community of (international) lawyers.61
60 Vienna Convention on the Law of Treaties, 22 May 1969: Art 31 General Rule of
Interpretation: 1. A treaty shall be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in the light of its object
and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise,
in addition to the text, including its preamble and annexes: (a) any agreement relating to the
treaty which was made between all the parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion
of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There
shall be taken into account, together with the context: (a) any subsequent agreement between
the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the
parties regarding its interpretation; (c) any relevant rules of international law applicable in the
relations between the parties. 4. A special meaning shall be given to a term if it is established
that the parties so intended.
Art 32 Supplementary Means of Interpretation: Recourse may be had to supplementary
means of interpretation, including the preparatory work of the treaty and the circumstances
of its conclusion, in order to confirm the meaning resulting from the application of article 31,
or to determine the meaning when the interpretation according to article 31: (a) leaves
the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or
unreasonable.
61 D Vagts, Interpretation and the New American Ways of Law Reading (1993) 4
European Journal of International Law 484, 5078.
30 Koen De Feyter
A special meaning can be given, if it can be shown that the parties that
negotiated the agreement intended such meaning. The original intent of the
drafters can also be taken into account to clarify the content of a provision.
For multilateral treaties, like the human rights treaties, this may not be easy,
as the intentions of the drafters may have differed; it is very possible that
agreement was only arrived at because various interpretations of the text
were possible. If sufficient time has elapsed since the adoption of the text,
it may be preferable to take into account the meaning that contemporaries
give to the text.
Finally, a teleological method may be also be used, ie an interpretation
reflecting the aim and purpose of the text. A teleological method allows
much more flexibility, but as Vagts explains, it stands low in the hierarchy,
because of the principle of international treaty law that states can only
be bound by their consent. Consent is clear when a literal or intentional
interpretation is used, but less sure when the courts use a teleological
method.62
The traditional interpretive techniques in international law are deferential to statestoo deferential for the purposes of human rights protection.
Nevertheless, it is possible to argue an alternative approach that still uses
the traditional techniques. In order to determine the ordinary meaning of
a human rights provision, use can be made not only of the expertise of the
legal disciplinary community, but also of social scientists that can clarify
how the relevant society perceives of the goods that rights protect (such as
family, privacy, or adequate living conditions). It can also be argued
that the aim of human rights treaties is to provide effective protection to all,
and that therefore provisions of human rights treaties should be interpreted
in such a way that they best achieve this result in the specific community
under review.
In 1981, the Indian Supreme Court faced a claim brought by a group
of pavement dwellers in the city of Bombay who faced evictions from the
streets and deportation to their places of origin outside the city by the
municipal authorities.63 The pavement dwellers argued that the evictions
were a violation of their right to life. Article 21 of the Indian Constitution
states that no person shall be deprived of his life or personal liberty except
according to procedure established by law. The Supreme Court found that
the right to livelihood was a facet of the right to life, since no person could
live without the means of livelihood. In order to determine whether the
evictions of the slum dwellers would lead to deprivation of their livelihood,
the Court turned to empirical data compiled by agencies, official and nonofficial.64 The Court found:
62
63
64
Ibid.
Olga Tellis v Bombay Municipal Corporation, Supreme Court of India, 10 July 1985.
Ibid para 2.3.

In the instant case, it is clear from the various expert studies that one of the main
reasons of the emergence and growth of squatter-settlements in big Metropolitan
cities like Bombay, is the availability of job opportunities, which are lacking in the
rural sector. The undisputed fact that even after eviction, the squatters return to
the cities affords proof of that position. These facts constitute empirical evidence
to justify the conclusion that persons in the position of petitioners live in slums
and on pavements because they have small jobs to nurse in the city and there is
nowhere else to live. Evidently, they choose a pavement or a slum in the vicinity
of their place of work, the time otherwise taken in commuting and its cost being
forbidding for their slender means. To lose the pavement or the slum is to lose
the job. The conclusion, therefore, in terms of the constitutional phraseology is
that the eviction of the petitioners will lead to deprivation of their livelihood and
consequently to the deprivation of life.65
For the group under consideration (nearly half of Bombays population)

the right to life meant the right to live on the pavement. The finding was
not based on the intention of the drafters of the Constitution, but on an
analysis of the reality of living conditions in Bombay. Many would consider
those living conditions degrading, but living on the pavement was essential
to access an income.
It could be objected that the Courts decision was not based on an international treaty, but on the Constitution, and that it may be easier for a
domestic court to assess local living conditions than for an international tribunal. It is certainly true that localisation of human rights implies that local
content is given to a human rights norm in the domestic legal system that
does not necessarily translate into regional or global interpretations of the
same norm. On the other hand, from a substantive point of view, the Court
could have easily reached the same conclusion had the case been brought
under Article 6 of the ICCPR.66 In addition, nothing prevents regional or
international courts from calling local witnesses or experts, or from analysing relevant domestic studies.
The Awas Tingni community, a group situated in Nicaraguas North
Atlantic coastal region, claimed that Nicaragua had violated the American
Convention on Human Rights by granting concessions to a Korean timber company for logging on the communitys traditional lands. After
extensive domestic proceedings, the case went before the Inter-American
Court of Human Rights. The Inter-American Court approached the issue
from the angle of the right to property. Ironically, the right to property
65 Ibid. The Court also confirmed, however, that the Constitution did not put an absolute
embargo on the deprivation of life. It only required that the procedure for the deprivation of
life must be fair, just and reasonable. The Court then set a number of conditions that the procedure needed to satisfy, but refrained from ordering a moratorium of evictions until alternative
settlement was provided.
66 ICCPR, Art 6(1) reads: Every human being has the inherent right to life. This right shall
be protected by law. No one shall be arbitrarily deprived of his life.
32 Koen De Feyter
is a controversial human right: it does not appear in the International
Human Rights Covenants, primarily because it protects the rights of those
who have property, but grants few entitlements to those who have none.
Article 21 of the Inter-American Convention simply states:
Everyone has the right to the use and enjoyment of his property. The law may
subordinate such use and enjoyment to the interest of society.
The legal question before the Court was whether this ostensibly individual
right to property could be interpreted in such a way as to protect the collective claim to land of an indigenous community. The Inter-American
Convention on Human Rights includes a specific provision on interpretation. Article 29(b) of the Convention played a role in the Courts decision:
Article 29. Restrictions Regarding Interpretation
No provision of this Convention shall be interpreted as :
b. restricting the enjoyment or exercise of any right or freedom recognised by
virtue of the laws of any State Party or by virtue of another convention to which
one of the said states is a party;67
In the Courts view, Article 29(b) prohibits a restrictive interpretation68

of the rights in the Convention. Although the Court pays lip service to the
preparatory work carried out for the Convention, it primarily argues that
international human rights treaties are living instruments, the interpretation of which should be adapted to changes over time, and, in particular,
to present-day conditions.69 By applying an evolutionary interpretation
the Court found that article 21 of the Convention protects the right to
property in the sense that it comprises, among other things, the rights of
members of indigenous communities within the framework of communal
possession, a form of property also recognised by Nicaraguas Political
Constitution.70
In order to arrive at this finding, the Court heard some of the community
leaders, but also a number of anthropologists as witnesses and experts.71
The anthropologists gave evidence on a wide range of issues.72 One witness had visited the area in order to assist the community in mapping the
67
American Convention on Human Rights, 22 November 1969, Art 29(b).

Mayagna (Sumo) Awas Tingni Community v Nicaragua, Inter-American Court of
Human Rights, 21 August 2001, para 148.
69 Ibid para 146.
70 Ibid.
71 They were invariably called not by the government, but by the American Commission
that had brought the case to the Court, after having investigated the original complaint by the
Community, and having found in their favour. For a full analysis of the case, see S Anaya and
C Grossman, The Case of Awas Tigni v Nicaragua: a New Step in the International Law of
Indigenous Peoples (2002) 19 Arizona Journal of International and Comparative Law 1.
72 For a transcript of the oral pleadings, see 19 Arizona Journal of International and
Comparative Law. The journal published a full special issue on the Awas Tingni case.
68

lands they used and was questioned on how boundaries with neighbouring communities could be decided. Others were asked about the forms of
exploitation of the soil in the area, and whether the community recognised
individual forms of appropriation. The response was:
It is a communal system, but inside the communal system there is individual
usufructory use. This means that one cannot sell or rent the territory to people
from outside the community. However, inside the community, certain individuals
use a lot.73
The anthropologists agreed that the community considered the land as

communal (also because they engaged in rotational subsistence farming
that was almost semi-nomadic), but that internally, the community had
mechanisms to assign possible use and occupation to its own members that
did not allow alienation to others from outside the community. When the
agricultural cycle of a cultivation plot ended, the plot reverted to the community.74 The system was embedded in indigenous customary law, which
was not codified, but consisted of real practices that were carried out in
different communities.75
Expert Rodolfo Stavenhagen was explicitly asked how indigenous peoples handled the tension between human rights and group rights:
Of course, as you have indicated, because they are human rights, they are essentially human and belong to the human person. However, in certain conditions, in
certain circumstances, in certain historic contexts, the rights of the human person
are guaranteed and can be fully exercised only if the rights are recognised of the
collectivity and the community to which this person belongs from birth, and of
which he is a part, and which gives him the necessary elements to be able to feel
fully realised as a human being. That also means a social and a cultural being I
consider that the international community has the challenge to develop new
concepts and new norms that, without in any way injuring or encroaching on the
human rights of the person, of the individual, on the contrary, would enrich them
by recognising the social and cultural reality in which these violations occur.76
In its judgment, the Court relied heavily on the evidence brought by the
anthropologists:
149. Given the characteristics of the instant case, it is necessary to understand the
concept of property in indigenous communities. Among indigenous communities,
there is a communal tradition as demonstrated by their communal form of collective ownership of their lands, in the sense that ownership is not centred in the
individual but rather in the group and in the community. By virtue of the fact of
their very existence, indigenous communities have the right to live freely on their
own territories; the close relationship that the communities have with the land
must be recognised and understood as a foundation for their cultures, spiritual
73
74
75
76
19 Arizona Journal of International and Comparative Law 171.

Ibid 242.
Ibid 184.
Ibid.
34 Koen De Feyter
life, cultural integrity and economic survival. For indigenous communities, the
relationship with the land is not merely one of possession and production, but
also a material and spiritual element that they should fully enjoy, as well as a
means through which to preserve their cultural heritage and pass it on to future
generations
151. The customary law of indigenous peoples should especially be taken into
account because of the effects that flow from it. As a product of custom, possession of land should suffice to entitle indigenous communities without title to their
land to obtain official recognition and registration of their rights of ownership.
152. As already mentioned, Nicaragua recognises communal property of indigenous peoples, but it has not established the specific procedure for putting into
practice that recognition, and hence there has been no issuance of titles of this
type since 1990. Additionally, in the instant case, the State has not opposed the
Awas Tingni Communitys proposition that it should be declared a proprietor,
although there is dispute as to the size of area of that claim.
153. The Court deems that, consistent with the terms of article 5 of the Political
Constitution of Nicaragua, the members of the Awas Tingni Community have a
communal property right over the lands they currently inhabit, without prejudice to the rights of the neighbouring indigenous communities. However, the
Court emphasises that the limits of the territory over which that property right
exists have not been effectively delimited and demarcated by the State. This
situation has created a climate of permanent uncertainty among the members of
the Awas Tingni Community inasmuch as they do not know with certainty the
geographic extension of their right of communal property, and consequently they
do not know up to what point they may freely use and enjoy the corresponding
resources. In this context, the Court considers that the members of the Awas
Tingni Community have the right that the State,
a) delimit, demarcate, and title the territory of the Communitys property; and
b) cease, until this official delimitation, demarcation and titling is performed,
acts which could cause agents of the State, or third parties acting with its
acquiescence or tolerance, to affect the existence, value, use, or enjoyment
of the resources located in the geographic area in which the Community
members live and carry out their activities.77
The Court thus acknowledged that the content of the right to property,
as incorporated in the regional human rights treaty, could vary according
to the definition by the relevant group. The local concept of communal
property, as attested to by the anthropologists, gave specific meaning to the
abstract right in the treaty. It is striking that the regional court was more
sensitive to the local reality than the domestic authorities involved in the
situation. In any case, the judgment amply demonstrates that there is room
within a legal reasoning (particularly in the context of the interpretation of
text) to reflect empirical data from the social sciences.
77 Mayagna (Sumo) Awas Tingni Community v Nicaragua, Inter-American Court of Human
Rights, 21 August 2001, paras 149, 1513.

Goodale reflects on anthropologys engagement with human rights since
the American Anthropological Association in 1947 famously refused to
endorse the idea of a universal declaration of human rights. He identifies two currents in the contemporary anthropology of human rights.78
According to the first school of thought, anthropologists should use their
knowledge of specific cultural processes and meanings to reinforce specific
projects for social change, to help prevent further encroachments against
particularly marginalised populations, or to do both. The role played by
the anthropologists in the Awas Tingni case fits very well in this model. In
Goodales words, they argued for an expansion of the definition of human
rights to increase its effectiveness for populations or cultures under threat.
The second current builds on the ethnographic tradition, and perceives
of human rights as a problem that must be studied empirically. The aim is
to develop a comparative database that explains how human rights actually function, what they mean for different social actors, and how they
relate empirically (as opposed to conceptually) to other transnational
assemblages. The descriptive data produced through these studies could
be used to make the implementation of human rights more effective, or
not. Goodale argues that modern anthropology can thus tolerate or even
encourage approaches that are either fundamentally critical of human
rights regimes or politically and ethically committed to them.79
ENSURING INCLUSIVENESS OF HUMAN RIGHTS THROUGH
MULTIDISCIPLINARITY
In conclusion, a multidisciplinary approach is essential to human rights

research both in order to describe how human rights function, and in order
to prescribe how their effectiveness could be improved.
The functioning of human rights in a specific space at a specific time is
dependent on a series of variables. Some are internal to the community
under review. Others originate from the context (national, regional, global)
in which the community operates. The variables are social, political, legal,
economic They relate to belief systems, power relations, the strength of
institutions, inequality, and so on. Different disciplines offer methodological skills and substantive findings on the study of these variables. A full
understanding of the functioning of human rights in a specific context can
be achieved if the results of different disciplinary efforts are combined.
Such an analysis may show that human rights are not effective in a specific context. Arguably, human rights are not effective when they fail to
78 M Goodale, Introduction to Anthroplogy and Human Rights in a New Key (2006)

108 American Anthropologist 3.
79 Ibid 5.
36 Koen De Feyter
deliver protection to large groups of people, or to a group with a specific
(economic or other) status. Inevitably, a human rights strategy that wishes
to address a lack of protection will need to address the same variables
that have impacted on human rights in the past. Inclusiveness of human
rights protection thus requires the development of a multidisciplinary
strategy.
SELECT BIBLIOGRAPHY
Abraham, M, A New Chapter for Human Rights: a Handbook on Issues of
Transition from the Commission on Human Rights to the Human Rights
Council (International Service for Human Rights and Friedrich Ebert Stiftung,
2006)
Anaya, S and Grossman, C, The Case of Awas Tigni v Nicaragua: a New Step in
the International Law of Indigenous Peoples (2002) 19(1) Arizona Journal of
International and Comparative Law 1
Bank, R and Lehmkuhl, D, Law and Politics and Migration Research in M Bommes
and E Moravska (eds), Reflections on Migration Research: Constructions,
Omissions and Promises of Interdisciplinarity (Aldershot, Ashgate, 2004)
Baxi, U, The Future of Human Rights (New Delhi, Oxford University Press, 2002)
Bob, C, Globalization and the Social Construction of Human Rights Campaigns in
A Brysk (ed), Globalization and Human Rights (Berkeley, University of California
Press, 2002)
Cali, B and Meckled-Garcia, S, Introduction in S Meckled-Garcia and B Cali (eds),
The Legalization of Human Rights (London, Routledge, 2006)
De Feyter, K, Human Rights: Social Justice in the Age of the Market (London, Zed
Books, 2005)
, Localizing Human Rights in W Benedek, K De Feyter and F Marrella (eds),
Economic Globalization and Human Rights (Cambridge, Cambridge University
Press, 2007)
De Feyter, K, Parmentier, S, Bossuyt, M and Lemmens, P (eds), Out of the Ashes:
Reparation for Victims of Gross and Systematic Human Rights Violations
(Antwerp, Intersentia, 2005)
De Sousa Santos, B, Towards a Multicultural Conception of Human Rights in
F Gomez and K De Feyter (eds), International Protection of Human Rights:
Achievements and Challenges (Deusto, University of Deusto, 2006)
Dixon, R, Creating Dialogue about Socio-Economic Rights: Strong v Weak-form
Judicial Review Revisited, Working Paper no 3 (New York, NYU School of Law,
2006)
Donnelly, J, The Virtues of Legalization in S Meckled-Garcia and B Cali (eds), The
Legalization of Human Rights (London, Routledge, 2006)
Engle Merry, S, Human Rights and Gender Violence (Chicago, University of
Chicago Press, 2006)
Falk, R, Human Rights Horizons (London, Routledge, 2000)
Freeman, M, Human Rights (Cambridge, Polity Press, 2002)
, Putting Law in its Place in S Meckled-Garcia and B Cali (eds), The
Legalization of Human Rights (London, Routledge, 2006)

Gomez, F, International Protection of Human Rights in F Gomez and K De Feyter
(eds), International Protection of Human Rights: Achievements and Challenges
(Deusto, University of Deusto, 2006)
Gomez, F, and De Feyter, K (eds), International Protection of Human Rights:
Achievements and Challenges (Deusto, University of Deusto, 2006)
Gomez, M, Human Rights in Cuba, El Salvador, and Nicaragua: aSociological
Perspective on Human Rights Abuse (London, Routledge, 2003)
Goodale, M, Introduction to Anthropology and Human Rights in a New Key
(2006) 108 American Anthropologist 1
Gready, P (ed), Fighting for Human Rights (London, Routledge, 2004)
Keck, M and Sikkink, K, Activists Beyond Borders (Ithaca, Cornell University Press,
1998)
Klabbers, J, The Relative Autonomy of International Law or the Forgotten Politics
of Interdisciplinarity (2005) 1 Journal of International Law and International
Relations 35
Klein, JT, Interdisciplinarity: History, Theory and Practice (Detroit, Wayne State
University Press, 1990)
Lindgren Alves, J, The Declaration of Human Rights in Post-modernity (2000) 22
Human Rights Quarterly 478
Mamdani, M, When Victims Become Killers: Colonialism, Nativism and Genocide
in Rwanda (Princeton, Princeton University Press, 2001)
Meckled-Garcia, S and Cali, B (eds), The Legalization of Human Rights (London,
Routledge, 2006)
, Lost in Translation in S Meckled-Garcia and B Cali (eds), The Legalization
of Human Rights (London, Routledge, 2006) 11
Nowak, M, Introduction to the International Human Rights Regime (Leiden,
Martinus Nijhoff, 2003)
, Reparation by the Human Rights Chamber for Bosnia and Herzegovina in
K De Feyter, S Parmentier, M Bossuyt and P Lemmens (eds), Out of the Ashes:
Reparation for Victims of Gross and Systematic Human Rights Violations
(Antwerp, Intersentia, 2005) 245
OByrne, DJ, Human Rights: An Introduction (Harlow, Pearson, 2003)
Oraa, J, The Universal Declaration of Human Rights in F Gomez and K De Feyter
(eds), International Protection of Human Rights: Achievements and Challenges
(Deusto, University of Deusto, 2006)
Oxner, S, The Quality of Judges (2003) 1 World Bank Legal Review 307
Rajagopol, B, International Law from Below (Cambridge, Cambridge University
Press, 2003)
Reese, T, Mapping Interdisciplinarity (1995) 77 Art Bulletin 544
Rombouts, H, Sardaro, P, Vandeginste, S, The Right to Reparation for Victims of
Gross and Systematic Violations of Human Rights in K De Feyter, S Parmentier,
M Bossuyt and P Lemmens (eds), Out of the Ashes: Reparation for Victims of
Gross and Systematic Human Rights Violations (Antwerp, Intersentia, 2005)
Saul, JR, Doubters Companion: a Dictionary of Aggressive Common Sense
(Toronto, Penguin, 1994)
Singh, JP, Transnational, National or Local? Gender-based NGOs and Information
Networks in India in S MacLean, F Quadir and T Shaw (eds), Crises of
Governance in Asia and Africa (Aldershot, Ashgate, 2001)
38 Koen De Feyter
Vagts, D, Interpretation and the New American Ways of Law Reading (1993) 4
European Journal of International Law 472
Vasak, K, Le droit international des droits de lhomme (1972) 51 Revue des Droits
de lHomme 43
Vick, DW, Interdisciplinarity and the Discipline of Law (2001) 31 Journal of Law
and Society 163
Wilson, RA, Is the Legalization of Human Rights Really the Problem? in
S Meckled-Garcia and B Cali (eds), The Legalization of Human Rights (London,
Routledge, 2006)
Woodiwiss, A, The Law Cannot be Enough in S Meckled-Garcia and B Cali (eds),
The Legalization of Human Rights (London, Routledge, 2006)
World Bank, World Development Report 2006: Equity and Development
(Washington, World Bank, 2005)
Part II
Origins of Rights
(Genealogical Approaches)
2
On the Sociological Instrumentality
of Human Rights and
Minority Rights
GERRIT-BARTUS DIELISSEN
INTRODUCTION
he sociological perspective can be characterised as a cultivation of what Friedrich Nietzsche once called the art of distrust, a
methodological unwillingness to take the world for granted: an
intellectual scepticism towards the representations of stakeholders who
want us to see, read and understand reality in a particular way. When looking at the current issue of human rights and minority rights,1 one notices
at the same time a growing global acceptance of and a growing resistance
towards human rights and the claim to minority rights. How can we make
sense of this paradox? A sociological method of contrapuntal reading may
help us understand how the experience of modernity preconditions some to
embrace human rights as an ultimate public good that will enable people
to live peacefully together in a diverse and globalising world, while leading
others to refuse the uncritical celebration of human rights as nothing but
the Emperors New Clothes, the continuation of a well-known discourse
of Western domination. A similar situation exists in relation to minority
rights. Nation-states share and withhold scarce resources, be these material
or symbolic goods, from particular parts of society. Minority rights then
appear as part and parcel of states pacification politics, as part of their
repertoire to manage and control ethnocultural diversity by putting into
practice some sort of politics of social justice as even-handedness.2 This
reality requires us to rethink the social, historical and cultural processes
1
Group rights are here understood as rights of (any) minorities.

Carens speaks of the ideal of even-handedness as a sensitive balancing of competing claims
for recognition and support in matters of culture and identity (J Carens, Culture, Citizenship,
and Community: a Contextual Exploration of Justice as Even-handedness (New York, Oxford
University Press Inc, 2000), p 12). In liberal democracies, policies should aspire for fairness
rather than formal equality. History matters, numbers matter, the relative importance of the
claims of the claimants matter and so do many other considerations.
2
42 Gerrit-Bartus Dielissen
that shaped the contemporary debates on human and minority rights. By
doing that, in the present chapter I propose a dynamic understanding of
these processes, by analysing the instrumental sociologic of human and
minority rights as they appeared and developed as particular products
of the modernisation process and the management of modern nationstatesa development that started in the West and moved throughout the
world following the Second World War. The dissemination of this project3
throughout the modern world meets enthusiastic fans, but also encounters
far less receptive audiences. How can we make sense of these contradictory
responses from a sociologists point of view?
First the sociological perspective is introduced. Secondly, the development of human and minority rights is presented as a consequence of the
process of modernisation. Human rights then become an expression of a
type of solidarity that aims at integrating an imagined new world system.4
Minority rights appear as the next sociological step for minority groups
to have their ethnocultural practices recognised and respected within the
boundaries of particular nation-states. The outcomes of these local battles
for recognition vary largely and are difficult to predict, since they are highly
dependent on circumstances that differ from one situation to another. In
two subsequent sections, what is considered (by some) to be the problematic side of human and minority rights is discussed. The chapter concludes
with suggestions as to how various comments made by sceptics of human
and minority rights can be dealt with and more support can be won for the
defence of human and minority rights.
THE SOCIOLOGIC OF HUMAN RIGHTS AND MINORITY RIGHTS
Sociology, as a style of thought first, and as an academic discipline only

much later, is in more than one way a discipline of crisis. The economic,
political, social and cultural crises of the Great Transformation,5 that
pushed the Western world from a traditional Gemeinschaft into a modern
3 J Habermas, Die Moderneein unvollendetes Projekt in W Hudson and W van

Reijen (eds), Modernen versus Postmodernen, Buro Studium Generale (Utrecht, HES 1983),
pp 2133.
4 Structurally differentiated and ethnoculturally diverse nation-states are held together by
the awareness of the mutual dependencies of their partseven or particularly where most
people never meet face to face, but know and identify with each other on the basis of a generalised belief system that allows for group differences in the acknowledgement that beyond
them everyone is part of one (great) nation.
5 This phrase was popularised by its use as the title of the book by historian Karl Polanyi,
The Great Transformation: the Political and Economic Origins of Our Time (Boston, Beacon
Press, 1944). Though historians and sociologists would differ on an exact definition of the
term, the two changes most central to the Great Transformation are the growth of modern
market economies in the economic sphere, and the development of the modern nation-states
Sociological Instrumentality of Human and Minority Rights 43

Gesellschaft,6 was the soil from which sociology sprung. From a birds
eye view this period includes the gradual emancipation of the individual
from the collective and the emancipation of civil society from the state.
Important milestones in this transformation were the Renaissance as the
discovery and re-appreciation of man, particularly in the spheres of art and
politics; the Reformation as the discovery of individual responsibility in
the sphere of religion; the English Revolution as the victory of civil society
and its intellectual reflection in the works of the moral philosophers;7
the Enlightenment to settle the score with the Dark Ages; the optimistic
hybrid of the American and the French Revolutions (the Declaration of
Independence and the democratic, anti-aristocratic movement); the traditionalist Restoration and the fear of losing Gemeinschaft; the Industrial
Revolution and the various forms of socialism. These long-term developments were, for the founding fathers of sociology, their main subject of
study. It was these prolonged series of crises that sociologists baptised modernisation; events that made systematic reflections upon the nature and the
direction of social change inevitable. Hence, sociology was both caused by
the modernisation process and found in it its first subject matter.
Not only did the modernisation process trigger a style of thought that
predates sociology as an academic discipline, which found its way in academia only as late as at the turn of the twentieth century,8 it also inspired
its basic methodology: the systematic use of historical and cross-cultural
comparisons.9 Here, time and place become important variables, heuristic aids, becoming method as it were: artificially induced crises, with the
purpose of detecting and understanding similarities and differences in the
and a state-based system of international relations in the political sphere. Other changes
potentially included would be the technological changes involved in the industrial revolution, advances in military technology and organisation, and the steady erosion of aristocratic
privileges. Generally, the Great Transformation might be said to represent the development of
modern society.
6 The German sociologist Tonnis coined this popular dichotomy in 1887. Since then
sociologists use this contrast between traditional and modern societies frequently and very
much as ideal types (M Weber, Die logische Struktur der idealtypischen Begriffsbildung in
P Siebeck (ed), Gesammelte Aufstze zur Wissenschaftslehre (Tbingen, JCB Morhr, 1982)); as
analytical constructions that are never to be found as pure forms in reality, but that are used
as measures to compare actual changes in the social, political and cultural spheres.
7 Ferguson, An Essay on the History of Civil Society.
8 The first chair of sociology in Europe was held by Emile Durkheim (18581917) at the
Sorbonne, Paris in 1913. The first department of sociology, however, was opened in America
at the University of Chicago where Albion Woodbury Small was appointed Head Professor of
Sociology in 1892 which predates Durkheims appointment in France by 21 years (L Coser,
Masters of Sociological Thought: Ideas in Historical and Social Context (2nd edn, New York,
Harcourt Brace Jovanovich, Inc, 1977), pp 147, 379).
9 The acknowledgement that social phenomena arise and develop within specific historical and cultural contexts brings the idea of probability into sociology and with it the relative importance of a method to account for the relationship between social action, time and
spacehence the relative importance of statistics in sociological research.
way social groups, communities, cultures or entire societies develop. Like
history does with the past, sociology approaches the present to a large extent
as a general science.10 It ambitiously strives for an overall and integrated
understanding of social reality. It tries to reconstruct and understand social
worlds as they are built and acted upon by people from within and presented
to outsiders, as organisational and meaningful structures. One cannot even
dream of completion of this somewhat megalomaniac project without the
use of methods and knowledge taken from auxiliary disciplines that study
past and present societies. There can be no sociology without the complementary insights of history, political science, anthropology, (social) psychology, geography or economics. Therefore, from its inception, sociology has
been not only a general but also a multidisciplinary social science.11
Historical and cross-cultural comparisons go hand in hand with a certain degree of estrangement from the world as we know it and, as a consequence, the familiar may suddenly appear less obvious and the ways in
which we are accustomed to live may be questioned, ways that we have
learned to take for granted. To many this is a disturbing side-effect of
doing sociology, because it tends to put into perspective and challenge
peoples preferred habits. Here a third trait of sociology appears, that of
being a critical science. By opening new windows to known facts, sociology
may help to refresh established world-views, and to welcome change. This
is why the potentially disturbing science of sociology never flourishes in
totalitarian states. It is seen as too darn risky by such regimes, viewing it
as having the potential to upset the so carefully constructed and protected
status quo and the vested interests therein.12
But what good can all this (sociology) bring us? This is of course a
matter of intellectual taste and occasionally a topic of heated debate. The
fourth, and admittedly very much contested, quality of sociology appears.
That is, the potential of sociology for opinionated interventions, made by
informed citizens in the public sphere. This can be described as the intellectual potential of sociology. An option that has been so sensibly phrased
by the Austrian novelist Robert Musil: When es Wirklichkeitssinn gibt,
muss es auch Mglichkeitsinn geben.13 It is not enough to have a sense of
10 W Lepenies, Die Drei Kulturen. Soziologie zwischen Literatur und Wissenschaft
(Mnchen, Hanser, 1985), p 11.
11 H Adriaansens, Een minimale systematiek (1983) Sociale Wetenschappen 355; I
Wallerstein et al, Open the Social Sciences: Report of the Gulbenkian Commission on the
Restructuring of the Social Sciences (Stanford, Stanford University Press, 1996).
12 K Mannheim, Ideology and Utopia (London, Routledge and Kegan Paul, 1979).
See also RK Merton, The Sociology of Science: Theoretical and Empirical Investigations
(Chicago, University of Chicago Press, 1973); P Berger and Th Luckmann, The Social
Construction of Reality: a Treatise in the Sociology of Knowledge (Garden City, New York,
Doubleday and Company Inc, 1967).
13 R Musil, Der Mann ohne eigenschaften (Reinbek bei Hamburg, Rowolt Verlag GmbH,
1988), p 16.

reality, one should also cherish and cultivate the capacity of dreaming and
work towards realising a world better than the one in which one lives right
now. Though this intellectual imagination does not necessarily coincide
with the sociological profession as such, the sociological habitus14 does
provide the student, amateur and professional alike, with an inclination to
be sceptical about what is presented as natural, eternal, necessary or a good
for all (see below). At the basis of this attitude lies the study of what since
August Comte (the man that gave the discipline its name) is known as the
study of social statics and dynamics, of progress and order, of change and
stability.15 As social scientists, we know very well that similar problems are
addressed, and temporally solved, by different people in different times and
in different ways, building in the process distinct universes of meaning that,
if confronted with one another, easily clash.
Sociology, therefore, studies how knowledge and power are related and
embedded in historical specific, cultural contexts and are used by individuals in ways that best serve their particular (group) interests. From this
reading all culture is ideology,16 used by various actors and stakeholders in
complex games,17 to defend and legitimise chosen routes of action.
A sociological perspective on the emergence, dissemination, support
or resistance towards rights may complement strictly doctrinal or legal
approaches to such rights. As pointed out by Koen de Feyter18 in his
opening essay to this volume, lack of compliance with human rights is an
14 P Bourdieu, Science of Science and Reflexivity (Chicago, University of Chicago Press,

2004), p 53.
15 Coser, n 8 above, p 3 on August Comte (17981857). Comte created sociology out of
a sense of optimistic Enlightenment and the traditional quest for order. Ordre et Progres or,
according to Thomas Huxley, Catholicism without Christianity. The name sociology is a
bastardised word, comprising the Latin socius and the Greek logos. Originally Comte was
playing with the thought of naming the new science of society, social physics, but this name
had already been taken by the Belgian statistician Adolphe Quetelet.
16 Ideology is here understood as a system of ideas that aims at legitimising or criticising
existing societal patterns of behaviour (social institutions). Karl Mannheim (Ideology and
Utopia (London, Routledge and Kegan Paul, 1979), p 49) makes a distinction between two
types of ideologies or as he calls them distortions of reality. The first one has the purpose
of stabilising an existing order, for which he reserves the notion ideology. The second type
is used to announce a future constellation, for which he uses the notion utopia. Ideologies
are thus, in Mannheims definition, the mental fictions of the powers that are defenders of the
status quo, utopias are the wishful dreams that inspire the collective action of opposing groups
whose aim is to transform society.
17 The notion of a game is made in reference to the work of George Herbert Mead
(1934/1962)), but comes close to what the French sociologist and matre penseur, Pierre
Bourdieu (n 14 above) calls champs, the social playground in which actors interact and
compete for prizes that are considered to be of value in a particular field. These desired profits
can be examples of economic, social or cultural capital, eg all kinds of forms of distinction:
diplomas, degrees, titles, prestige.
18 K De Feyter, In Defence of a Multidisciplinary Approach to Human Rights in K de
Feyter and G Pavlakos (eds), The Tension Between Human Rights and Group Rights (Oxford,
Hart, 2007).
acknowledged difficulty in human rights law. Sociology may offer explanations of why human rights compliance varies over different societies and
may change over time. When sociologists take human rights and minority
rights as a topic of research, they point out that these rights have to be
understood as historically situated and contextually bound.
The 1948 Universal Declaration of Human Rights and the allocation of
minority rights have been contested, both as practices and as ideologies.
This will be discussed in three steps. First the origin and the instrumental
use of human rights is described. Here a sketch will be given of the social
evolution of a belief system that is rooted in the ontological assumption of
the equality of men. The material condition(s) of such a belief system have
emerged from what sociologists call the modernisation process that started
in the West, but became, under the impact of globalisation, one of the strongest and one of the last remaining great narratives of our time. Supported
by global institutions such as the United Nations and the International
Court of Justice, and strengthened by numerous international treaties and
conventions, the human rights cause has proven itself a success story, with
the appeal of a civic religion, although this can be contested in the aftermath of decolonisation in the 1960s, by the new nationalisms that emerged
after the collapse of communism in the 1990s, and most recently as the
direct consequence of security policies that followed the global concerns on
international terrorism after 9/11. In the West, incoming migration revived
debates on civil rights, inclusion and the relative strength and weaknesses
of our supposedly open societies. Here, multiculturalists and liberals have
regular face-offs. In Central and Eastern Europe the issues of majority versus minority rights is kept on the political agenda by nationalists and their
opponents, national minority movements.
But first things first; how did we learn to conceive and care for others as
we do for our own? This is not an intrinsic property of man or an obvious
thing for people to doit is as a matter of fact an emergent quality that
only appeared as an instrumental necessity of the modernisation process.
Let us now have a closer look at the socio-genesis of this miracle.
Returning to the general process of modernisation, the conceptual scheme
shown in Figure 2.1 may help analyse modernisation in a more specific way.
The scheme is based on the work of Talcott Parsons.19
Human action may be approached from four different angles or viewpoints. First is from the structural viewpoint: peoples social roles, their
interaction with other people and the patterns of interaction they develop
are central. There are, however, also cultural aspects to reality: the world
of ideas, beliefs, values, norms, meanings which give direction to our
19 H Adriaansens, Talcott Parsons and the Conceptual Dilemma (London, Routledge and
Kegan Paul, 1980).

Structure
Culture
Action
Person
Nature
Figure 2.1
Structural differentiation
Rationalistion
Individualisation
Domestication
Figure 2.2
actions. A third viewpoint of social reality is that of the person. Action

may be constrained and conditioned by structural and cultural influences, but people are also individual actors, with personal preferences and
strivings. The last viewpoint is that of nature, and ones dependency on
natural and biological circumstances. Almost any action can be described
according to these four dimensions. Applied to modernisation, the scheme
can be translated as follows: the general modernisation process may be
divided into four major subprocesses or dimensions. These processes are
(see Figure 2.2):
at the structural level: differentiation and specialisation;
at the cultural level: rationalisation and generalisation of meanings
and values;
at the personal level: individualisation;
at the natural and biological level: domestication and alienation.
Differentiation occurs when originally homogeneous parts become
differentiated and specialised; the division of labour is a good example
of this. Rationalisation takes place when reality becomes increasingly
calculable, predictable and controllable. We look for the most efficient
means to reach our goals. We speak of individualisation when individuals become increasingly separated from the collectivity. People become
freer, more autonomous, and more independent from the social circles
which formerly determined their lives to a large extent; the church, the
(extended) family, the village. Lastly, domestication refers to the degree
to which people control their biological and natural environment. Major
technological developments achieved in human history show this increasing domestication of our natural habitat: the use of fire, the introduction
of agriculture, and the use of natural energy, which made possible the use
of machinery, are just a few examples. The four dimensions of modernisation are closely related. Often they occur in combinations and are interdependent, for example, rationalisation and individualisation. The interplay
and sometimes uneven development of modernisation also results in
paradoxes; that is, some counter-movement is born: for instance, increasing
differentiation calls for new forms of integration, and if this fails to be
realised, processes of demodernisation, eg religious fundamentalism, may
be the result.20 Similarly domestication goes along with alienation, the
introduction of new technologies may lead to alienation of the people that
produce or use them.
How are traditional societies structured and how do they change over
time under the impact of what is presented here as the first dimension of
modernisation, the gradual differentiation of previously highly integrated
social structures into specialised and interdependent substructures? Social
systems which are mediated and facilitated by a collective consciousness or
morality that is well rooted in religious and traditional beliefs are termed
traditional societies by sociologists. People are, in a matter of speaking, glued together by a form of solidarity that Emile Durkheim called
mechanical.21 The economic base of these traditional societies is agrarian; the units of production are extended families in which the division of
labour is rudimentary. Although the surplus of what is produced is bartered
on local markets, most of what is produced is consumed by the producers
themselves. The various segments of traditional society are units of relatively small scale and quite homogeneous in their construct. The dominant
beliefs and sentiments in traditional societies are collective rather than
individual, and people feel deeply attached to family and tradition. With
20 S Bruce, Fundamentalism (Cambridge, Polity Press, 2000), p 117: Fundamentalism is a

rational response of traditionally religious people to social, political and economical changes that
downgrade and constrain the role of religion in the public world; and at p 14: Fundamentalisms
arise in traditional cultures but they are not traditional in any simple sense they are radical revisions of the past provoked by changes that threaten the continuity of the tradition. In
that sense, fundamentalisms are reactive. Fundamentalists are movements that respond to
problems created by modernization by advocating society wide obedience to some authentic
and inerrant text or tradition and by seeking the political power to impose the revitalised
tradition (p 94).
21 K Allan, Explorations in Classical Sociological Theory: Seeing the Social World (London,
Pine Forge Press, 2005), pp 1223.

social positions fixed, the differences between the various social layers are
steep and the sociopolitical power structure is characterised by inequality. Law is repressive overall and for the larger part constitutes penal law.
Administering justice is the privileged area of religious and worldly elites.
Kadi Justiz in Islamic countries may be a close example of the way disputes are brought before courts of law and decided upon. The Kadi, being
a wise and religiously high-ranking elderly (male) person, is trusted to speak
by authority of his personal wisdom and settles disputes by the power
bestowed upon him by tradition.
All this changed in (most of) Europe from the late Middle Ages onwards,
when fierce competition between warring lords (noblesse dpe) resulted
in monopolies of power, taxation and violence which paved the way for the
era of absolute monarchies.22 Court societies appeared all over Western and
Southern Europe. Once independent knights, transformed into a noblesse
de robe, gathered at the court of the most powerful among them, and having become largely dependent on this overlord, had to compete cunningly
and rationally23 among each other, for the goodwill and favours of their
king. It is in these centralised courts where absolute monarchs ruled that
we find the beginnings of modern nation-states.24
Structural differentiation of previously autonomous areas of life, such as
education, care, taxation or warfare, poses new challenges of integration
and administration. With the growth of scale and production for a market,
larger units of society have to be connected. Communities began to extend
the local experience and a sense of unity had to be established with individuals that did not know or regularly meet each other on a face to face
basis (if at all). A new sense of community had to be imagined.25
Rationalisation and a broadening of the reach of those values and
norms that are considered central to the functioning of the social body,
then became a necessity. In this process, value systems are stretched, they
become more general, since they have to bring together more people and,
increasingly, more diverse groups. As a consequence, the mores of a modernising society become more abstract: more legal and less dependent on
22
N Elias, The Civilizing Process (Oxford, Blackwell Publishers Ltd, 2000).

The new figuration of a growing interdependency between once more or less autonomous
knights required a new inner control that is based on the awareness of the interrelatedness of
ones personal fate with that of others (all equally dependent) on the success of the highest
in rank among them. This awareness necessarily fosters a greater control over ones emotions
and makes the people involved more strategic planners of their lives and fortunes. This triggers more rational, more controlled and (in Elias words) more civilised (more other directed)
patterns of behaviour.
24 N Elias, The Court Society (Oxford, Blackwell Publishers Ltd, 1983).
25 Anderson refers to this process of modern state formation as imagined community and
sees in the process of print capitalism the origins of a new, national consciousness (B Anderson,
Imagined Communities: Reflections on the Origin and Spread of Nationalism (London, Verso,
1991).
23
particular situations or on the whims of individual rulers. An illustration
of this process of rationalisation in the area of law is the development
described by Max Weber of what was known as Kadi law (mentioned
above) into codified law and impersonal forms of justice. This development is also illustrated by the growing importance of restitutive law in
modern societies. Why does the individual, while becoming more autonomous, become more dependent on his fellow man and society as a whole?
What may appear as an antinomy, is in fact a transformation of social
solidarity, from one based on sameness into one based on heterogeneity,
due to the steady growth of the division of labour and market economies.26 This new type of solidarity that fits so well the needs of modern
societies, is what Durkheim calls organic solidarity. Law is the visible
symbol of any solidarity because law signifies the external aspect of the
organisation of society. The general life of society cannot extend its sway
without the juridical form extending its sway at the same time and in
direct relation. Every precept of law can be defined as a rule of sanctioned
conduct. Sanctions change with the gravity attributed to precepts, the
place they hold in the public conscience and the role they play in society.
Parallel to the two types of solidarity discussed by Durkheim are two
kinds of law that represent them. The first, penal law, consists essentially
in suffering, or demands at least a loss, inflicted on the agent. Penal law
makes demands on the fortune, honour, life or liberty of the perpetrator
and deprives him of something he enjoys. This is repressive law. As for
the other kind of law, it does not necessarily imply suffering for the agent,
but consists of returning things to how they were, the re-establishment of
troubled relations to their normal state. This is what constitutes civil law,
commercial law, procedural law, administrative law and constitutional
law, after abstraction of the penal rules which may be found there.27
Individualisation, the third dimension of modernisation, comes about
when individuals emancipate from the social collectives that previously
determined their lives to a large extent. Here the writings of August Comte
and Alexis de Tocqueville become relevant. Both proto-sociologists illustrate in their work how the division of labour frees the individual from
traditional structures and renders him both more dependent on and equal
to his fellow man. The same process increases an individuals capability of
identifying with larger, more abstract categories, recognising in others his
own fate.
August Comte presented his law of the three stages,28 an evolutionary model that exudes the charm of an optimistic Enlightenment way of
26
27
28
E Durkheim, The Division of Labor in Society (New York, New York Free Press, 1997).
Ibid.
Coser, n 8 above, pp 78.

thinking: that as a result of insights illuminated by a positivistic (social)
science, circles of identification are widened with every step in the
advancement of human intellect. With the evolution of mans capacity
and confidence to think for himself, the circles of social organisation and
identification also evolve, taking to heart first only the interests of the
clan, then of the nation-state and finally, in modern times, working for
the benevolence of the whole of mankind.
De Tocqueville takes a more materialistic stand on individualisation
and equality. In 1830 he visited America for nine months. What struck
him most about America was the equality of living conditions thereits
democracy.29 Tocqueville believed America to be a model of a future society in the making.30 The democratic revolutions seemed new to many of his
contemporaries, but they were, according to de Tocqueville, not new at all,
but 700 years old, gradually developing as the aristocratic power of a few
feudal families began to be challenged. A kind of democratic equality first
appeared in the clergy, which was open to all. Then it passed to lawyers,
who checked the power of barons, and to merchants, whose wealth introduced a rival influence to that of arms. Competition between the king and
the nobles led both, especially the former, to better the conditions of people,
and events from the Crusades to the discovery of America were advantageous for the cause of equality. Furthermore, the Enlightenment made intelligence and education social forces to be reckoned with. Equality of living
conditions is the mark of democracy, more so even than freedom. Given
the choice, a democratic people will, over all, prefer equality over freedom,
because they have had longer to become used to it, and have learned to
appreciate the fruits that it brings.31 De Tocquevilles understanding of the
growth of human empathy and the wish to extend rights to all mankind
is important for the argument put forward in this chapter. For this development the gradual equalisation of living conditions seem crucial. Mores
become milder only when living conditions become more equal. In an
aristocratic society, each caste has its own opinions, sentiments, rights and
mores, and separate existence. Thus, those who compose the castes do not
resemble everyone else, do not have the same manner of thinking or feeling
and they scarcely believe themselves to be a part of the same humanity as
those from other castes. Therefore they can not fully understand what the
others feel, let alone sympathise with their fate. Feudal institutions render
29 A De Tocqueville, Democracy in America (Chicago, University of Chicago Press, 2000),

p xxvi.
30 Ibid p xxni. De Tocqueville describes democracy very much as an ideal type (M Weber)
and always in contrast to aristocracy. He constantly compares them not just as forms of government but as opposite ways of life.
31 Ibid pp 47982 on why democratic peoples show a more ardent and more lasting love
for equality than for freedom.
one very sensitive to the ills of certain men, but not to the miseries of the
human species. There is genuine liking only among people who are alike.
In aristocratic societies one sees people like oneself only in the members of
ones own caste. It is only when people become more independent from one
another, when ranks are almost equal, that people start to think and feel in
the same way. In democratic societies people tend to be rather individualistic and rarely devote themselves to one another; but they do show a general
compassion for all members of the human species.32 When each nation has
its separate opinions, beliefs and laws, it considers itself as though it had
formed humanity as a whole, and feels affected only by its own sorrows. It
is clear that in a nationals eyes a foreigner is not the same human species
as himself.33 Only as peoples become more like one another, do they show
themselves reciprocally more compassionate regarding their suffering, and
the laws of nations become milder.
Citizens are equal before the law only within the borders of a specific
nation-state, and, nowadays, within the larger circles of international treaties and conventions signed between nation-states. In principle equality of
all mankind is the underlying assumption of international law and human
rights treaties. Historically, the first steps in this direction were taken when
absolute monarchs gave way to civil revolutions and rights become citizenship rights. Rights obtained by minority groups in a society are a special
category within these citizenship rights. The logic of obtaining minority
rights follows the same logic of collective action that can be observed in
the case of citizenship rights, that is, they are often the haphazard or situational result of strategic struggle, strife and elaborate negotiations between
subordinate and dominant groups in particular societies.
According to the British social historian, TH Marshall,34 citizenship
involves three sets of rights: civil, political and social rights. Marshall presents his explanation of these three sets of rights in terms of a history of the
gradual and largely peaceful acquisition of such rights by the majority of
the population from a benign liberal-democratic state. Less convinced of
32 Ibid p 538: De Tocqueville was shocked by the fate of enslaved Blacks on the American
plantations he visited. He stated that there was no European colony in the New World where
the physical conditions of Blacks were as harsh as in America. It is easy to discover that the
masters see in slavery not only a fact from which they profit, but also an ill that scarcely
touches them. Thus the same man who is full of humanity for those like him when they are
his equals, becomes insensitive to their sorrows as soon as equality ceases.
33 There seems to be here a parallel in the current global war on terrorism in which the
suspected enemy is depersonalised and presented in such abstracts as evil or evil-doers, or
similarly the Russian attitude towards Chechnya: a first psychological condition to strip
away or even deny the adversarys basic human rights or the protection of international law.
In more general terms we also find this lack of empathy with strangers in Sumners classical
study Folkways (1905) where he coins the notion of ethnocentrism which he believes to be a
universal syndrome.
34 TH Marshall Class, Citizenship and Social Development (Garden City, New York,
Doubleday and Co, 1964).

the peaceful acquisition of these rights is the sociologist Bryan Turner.35 He
states boldly that no right has ever been given freely. Privileges are always
fought for. Turner argues that the critical factor in the emergence of citizenship is violence, that is, the overt and conscious struggle of social groups
to achieve social participation. One further feature of the emergence of citizenship under conditions of conflict, as mentioned by Turner, is the historical importance of migration, since it is migration which undermines rural,
hierarchical and stable social relationships. Migration is itself frequently the
outcome of various forms of violence, where the migrant seeks to escape
to a new social environment. Turner assumes that any growth of citizenship presents a challenge to existing patterns of power and authority and
therefore any growth of citizenship will be met with political struggles by
dominant groups to preserve their advantages within the status quo. Rights
will tend to be contradictory and the growth of rights for one social group
may involve a contradiction of rights for others.36
Civil rights refer to legal equality. In the eighteenth century, when the
modern nation-state arose from the feudal state of Absolutism, civil rights
were granted to a privileged elite. Those civil rights entailed the fundamental idea of equality before the law. Such rights were gradually extended
in the nineteenth and twentieth centuries. Political rights refer to the extension of the franchise. Marshall sees political rights as essential to the idea
of citizenship and he sees the extension of the franchise to more and more
in society as a further demonstration of the liberal-democratic states commitment to formal equality. Finally, there are social rights that are applied
concretely in the various welfare states that have appeared in the twentieth
century.37 Social rights involve equality of opportunity to access educational, medical and welfare services. As far as Marshall is concerned, the
possession of all three sets of rights is a guarantee of formal equality: a
formal equality which abates the substantive and real social inequalities
of class and status. For Marshall, the idea of citizenship and its three sets
35 B Turner, Citizenship and Capitalism the Debate over Reformism (London, Allen &
Unwin, 1986), p 26.
36 For example, womens right to control their own bodies has been expressed by a variety
of legal developments such as abortion reform. However, the rights of women may conflict
with the rights of children, especially unborn ones.
37 Esping Anderson (Three Worlds of Welfare Capitalism (Princeton, Princeton University
Press, 1990)) calls this the process of de-commodification, in which people are protected from
the hazards of becoming individuals that can hardly survive outside the market in which they
have to sell their labour at a price that is dictated by the laws of offer and demand. In this
process man becomes a commodity himself. This dehumanising aspect of capitalist market
economies has been criticised since the early days of capitalism, by political currents from the
right to the left, and has resulted in social legislation to protect individuals from becoming
totally dependent on the market. The implementation of such (welfare) legislation results in
three different types of welfare states, each named after the political regime that supports its
basic ideology: liberal, corporatist and social-democratic.
of rights generates a formal equality which ameliorates the substantive
inequalities of capitalist society. Marshalls account of citizenship claims
to be a universalistic one; that is, he claims his model of citizenship can be
applied to any society, at any given time. Clearly there would be great value
in establishing a universal model of citizenship since it would allow us to
measure the quality, as well as the quantity, of rights and benefits across
distinct societies. However, there may also be a danger in doing so. That
danger lies in the fact that the assumptions and concepts of such model
would be ones which could, albeit implicitly, mask (and worse, repress)
differences of culture and identity between minority groups in a society or
other societies as a whole.
Despite the growth of international law, the focal point for and executer
of rights is still to a large degree the nation-state. From that focal point
the notion of citizenship becomes the historical and localised translation of
basic rights. And within the nation-state battles are being fought to widen
(or limit) the circles of inclusion, the entitlements that come with the position and status that various individuals, associations and minority groups
have or claim. This is the ongoing struggle for recognition in democratic
constitutional states.38 Many of the debates on minority rights originate in
this democratisation process.39
Also from the vantage point of the fourth and last dimension of modernisation, domestication or the growing control over our natural and
physical environment, human rights and, in particular, the struggle for
minority rights gain importance. Michael Featherstone highlights the socalled paradox of globalisation.40 Technological innovations in transport,
communication and the media make many people more mobile and bring
them into contact with other cultures in ways which would have been
unknown in the past. This leads some to embrace cultural diversity, creating new third cultures,41 but also results in conjuring up a wilful nostalgia
for a past that may never have existed and allows others to search for an
illusory purity of culture, ethnicity or race. Combined with the large-scale
migration that is so characteristic of todays world, this results (particularly
but not exclusively in the West) in a renaissance of ethnic consciousness: a
place of retreat where one may hope to find shelter from the presence of
strangers among us, away from the cultural diversity that one cannot, or is
not willing to accommodate.
38
A Honneth Kampf um Anerkennun, (Frankfurt am Main, Surhkamp, 1992).

Democratisation is understood here not just as the struggle for political representation,
but in the way that de Tocqueville referred to it as growing circles of inclusion and equality
of living conditions.
40 M Featherstone, The Paradox of Culture and the Globalization of Diversity (Utrecht,
ISOR, 1990).
41 Third cultures of which fusion and cosmopolitanism are the key words, eg fusion or
benign mixtures of food, religion, music and fashion.
39

Within nation-states political battles are being fought over the selective
widening or restricting of circles of inclusion. These struggles can be captured under the umbrella notion of the struggle for minority rights. Such
battles are initiated by indigenous groups or by relative newcomers, the
immigrant populations with full legal status but with a desire for more
exclusive recognition of religious or (sub)cultural practices. Here, multicultural and liberal approaches to minority rights find themselves often at
opposite sides in the discourse on how to respond fairly to demands to have
ethnocultural differences recognised.
To sum up, the conceptualisation and broad acceptance of the grand
narrative of humanism and the global respect of human rights only became
possible as a consequence of the modernisation process that called for
new ways of integrating a complex world of interdependent nation-states.
The general and universal phrasing of a type of solidarity that promised
to recognise and respect the universality of all humans as free and equal
became appealing, because of the growing awareness of the interdependencies and hence the shared interests of a global community of nation-states
and peoples. But with the recognition of this common vulnerability and
mutual dependencies also comes the need for recognition of national and
regional differences: an ethnocultural diversity that has to be addressed
in ways that appear reasonable and fair to both the minorities and to the
national majority.
WHAT IS CONTESTED IN HUMAN RIGHTS?
Social life is to a high degree encoded, and though we find pride and, as
modern people, more and more identity in our individuality, we still conduct our daily lives predominantly cruising on our culturally programmed42
automatic pilot. People are rule followers43 and most of what we think, feel,
like and do is institutionalised behaviour.44 Meaningful action is everyday
knowledge put into practice. In this way we account for and justify our
actions to ourselves and others, making them sensible and to a certain degree
predictable. Behaviour then becomes functional and rewarding in the social
system(s) or stages on which it is performed. From this perspective, morality
42 Individual freedom is always freedom from something, which tends to be the collective,
culture or group (norms) of which the individual is part. Hence freedom without any constraint is a nihilistic utopia. The challenge therefore is not how to obtain absolute freedom
(which seems an immature and infantile whimsy) but how to match individual liberties with
group membership, societal responsibility and accountability.
43 L Wittgenstein, Philosophical Investigations (Oxford, Blackwell, 2001).
44 A Zijderveld, The Institutional Imperative: the Interface of Institutions and Networks
(Amsterdam, Amsterdam University Press, 2000); see also P Berger and Th Luckmann, The
Social Construction of Reality: a Treatise in the Sociology of Knowledge (Garden City, New
York, Doubleday and Company Inc, 1967).
is not a matter of truth but a matter of validity. It reveals itself as nothing
more, or less for that matter, than a man-made construct, bound, like the
people that are constrained by it, to time and cultural specific contexts.
Culture and history, and the interactive ways in which they are produced
and constantly rewritten, therefore, do matter and do make a difference to
people.
Todays world is a global village in which communities have a history
with each other. Colonialism, decolonisation and neo-colonialism link and
mark contemporary international relations. The same goes for the shared
(but likely differently evaluated) experiences of communism, the Cold War,
the collapse of communism and its aftermath.45 Globalisation spreads modernisation but often does so in an uneven way, sometimes evoking growing
inequalities, anomie, and acute experiences of loss of community: the lack
of transparency of ones own society, of a common destiny, the heart-felt
absence of justice in human relations or the erosion of peoples chances to
make something out of their lives. Hampered, modernisation works against
the building of local and international trust and strengthens distrust in the
intentions of others, even more strongly when it is related to the ascribed
motives and actions of a powerful outsiderespecially if this coincides with
the image of a monolithically defined West.
An overall scepsis towards the intentions of Western nations is what unites
the minds of those critics who are suspicious of human rights, in relation to
its claim to universality in particular. Are human rights, they would argue, not
a Western invention? A product and ideology that has its roots in Europes
history and therefore reflects Eurocentric ideals: individual freedom (at the
expense of community), proclaiming the (public) irrelevance of religion, and
the pursuit of individual happiness and wellbeing as the highest purpose
in life? A belief system that found a historical high (or low?) in the French
Revolution that, quite literally, shortened the Ancien Regimes privileges?
From then the interests of the (petit) bourgeoisie, the commercial middle
classes, have become the benchmark of all that is considered good, beautiful
and decent in life. A historical and cultural specific ideal that would gradually
be generalised to all mankind. But with what right and to what good?
Human rights are clearly prescriptive, they indicate an ought to, rather
than describing what is plain for all to see: that people are not equal and
are not treated in the same way, neither by their fellow man, nor by their
governments and certainly not on global markets or in the bargaining pits
of international politics and relations. Human rights are culturally and historically specific, but still assume a universal morality. Why should this be
convincing? From a critics perspective it makes sense to have some doubt
towards the Eurocentricity of the 1948 Universal Declaration of Human
45
F Fukuyama, The End of History and the Last Man (London, Penguin, 1992).

Rights, which was not ratified until 1966, the heyday of decolonisation.
Can one not read in the Declaration a subtle extension of colonialism?
Certainly the measure stick of progress and civilisation is the road taken by
the Western world: the protection of individual rights rather than acknowledging the rights of the collective or the community. The truth is, of course,
that rights have to be interpreted and implemented within a national
context.46 Access to justice is an important prerequisite of the Doctrine of
Universal Human Rights, but prevailing economic conditions, especially
poverty, do significantly change moral systems. Another objection made by
those that criticise the Universal Declaration is its implicit stand on religion,
which it considers to be something distinct from man and his life, an extracurricular activity, as it were. For many of those who live in traditional
communities, though, religion is still very much a central part of their lives.
Another objection is that the Universal Declaration assumes parity of gender roles. Some would claim that equality is not inherent in mankind, and
that it is equity, not equality, that should be established and guaranteed.
Such a reading would give room for more culturally specific expressions on
how gender roles take shape.
A more extreme position is taken by cultural relativists and post-modernists who believe that the human rights project should forsake its universal
claims altogether. International institutions such as the United Nations
should simply put more serious efforts into cultivating greater acceptance
of the diversity of cultures. Instead of promoting universal, context-free
human rights, the international community should work towards improving universal standards of living, for example.
A specific concern is often voiced in relation to the credibility of the
West, with the United States as its champion. Western nations, it is pointed
out, have themselves a rather poor track record in respecting human rights
or in supporting political regimes that clearly do not support such rights.
This hits disproportionately hard, because the West is seen as the chief
constable of human rights. There is a persistent image of the West as a
character that does not practice what it preaches in relation to human
rights. Most nations will safeguard what they see as their geopolitical and
economic interests, but not all nations are equally equipped to do so. Since
the collapse of the USSR, the United States seems to be the only remaining world power that is able and willing to stick to its guns as regards its
interests, even if there is no international mandate to do so, or if basic
human rights (including those of American citizens)47 are infringed or
violated. These policies clearly harm the human rights cause, and serve
46 A reality that was acknowledged in the 1993 World Conference on Human Rights in
Vienna, which resulted in the so-called Vienna Declaration.
47 The Homeland Security Act of 2002 gives the US government far-reaching authority to
interfere in the civil liberties of its citizens.
to confirm the picture of the West as a two-faced civilization. Of course,
in this iconoclastic representation of the West versus the rest all nuance
is lost. As noted by the American foreign policy commentator, Robert
Kagan, a gap is growing between what once was conceived of as the great
transatlantic alliance: Europe and the United States.48 The changing and
ever more opposing ways in which Europe and the United States relate to
international law and the confidence and efforts each is willing to put in
international conflict resolution and peace-building institutions49 is evident. This has become even more apparent in the war on terrorism, the
invasions of Iraq and Afghanistan, and the cases of human rights violations
that sprung from such. The examples of Abu Graib, Guatanamo Bay and
the secret American detention centres in Central and Eastern Europe, do
not invoke much faith in the moral standards of the only remaining world
power. Practices such as these fuel the why?, how? and where to? of the
occidentalist stands of critics of the West, with fundamentalist groups,
such as Al-Qaeda, in the front seat. Much of the radicalisation of young
Muslims in the West, turned fundamentalist despite, or maybe because
of, the relatively good positions in which they find themselves, should
be attributed to the combined effects of failed integration and persisting global inequalities, and what is seen as the (co)responsibility of the
hypocritical foreign policies of the countries of which they themselves are
part.50 The assessment of where most radical fundamentalist ideologies51
themselves have their rootsa veiled but nevertheless all too commonplace
(power) interest of local elites and political factionsmight be correct, but
it does not contradict the equally valid observation that there is clear and
present discomfort among many engaged believers about social injustices,
people with whom significant parts of our societies identify. Unless Western
48 R Kagan, Of Paradise and Power: America and Europe in the New World Order (New
York, Vintage Books, 2004), p 7.
49 When the United States was weak, it practiced strategies of indirection, strategies of
weakness; now that the United States is powerful, it behaves as powerful nations do, much like
when the European great powers were strong and they (still) believed in strength and martial
glory (Kagan, n 48 above, pp 1011).
50 The effect of this assessment is a state of mind that can be characterised as cognitive
dissonant: a twisted, most uncomfortable condition that fills one with guilt and resentment;
a situation out of which some see only one consistent escape, that of bringing their actions in
consonance with their reading of reality: the effect is often volatile and (self)destructive.
51 I Buruma and A Margalit (Occidentalism: the West in the Eyes of its Enemies (New
York, Penguin Press, 2004)) have argued that occidentalism or the negative evaluation of
Western modernisation is not oriental in origin at all. Contrary to popular belief or what one
may expect from the sources that currently use the occidentalistic rhetoric (outside of Europe,
manifested as a rejection of all the valuesalthough not necessarily the technology or goods
that are produced as a result of Western machine civilizationthat the West represents) it
actually originates in the West and is the product of Western Romanticism with its nostalgic
dreams of a pure and eternal traditional society in which good old values such as community,
honour and sacrifice for higher purposes are still very much alive.

countries are willing to acknowledge those facts and are willing to review
their selective presence in cases where human rights are at stake, the war on
international terrorism will not be won and more human rights violations
will likely be the result.
Thus, three particular criticisms of the Universal Declaration of Human
Rights have been identified. The first one argues in favour of a less
Eurocentric focus, a debate that began in the late 1960s and has, to a large
extent, been accommodated for by various UN declarations since. The
sharp edges of these debates have been blunted by the accommodations
of the late twentieth century, most explicitly in the Vienna Declaration
of 1993, which acknowledged that human rights are universal but have
to be understood and implemented by taking into consideration different
national, cultural, historical and religious contexts. The second corner from
where a critique on the human rights project has been launched is more
fundamental and cannot easily be met halfway. Here, cultural relativists
and post-modernists take a principled stance in reifying cultural diversity
and moral abstinence. The best that the international community can strive
for is a more equal distribution of the wealth of nations. Lastly, there is the
critique of occidentalists that have a troubled relationship with modernisation that they equate to Westernisation and oppose as a form of cultural
imperialism. From their point of view, human rights appear not simply as
culturally biased, but as a tool of the West to measure and judge societies
that walk a more traditional or collectivist path to social justice. Western
morality is questioned because of the double standards it seems to adopt
when relating to non-Western cultures.
WHAT IS THE BUZZ ABOUT MINORITY RIGHTS?
A number of factors that emerged in the 1990s make clear that tensions
arising from ethnocultural diversity within nation-states are not solved
automatically in the process of socioeconomic and political modernisation.52 Flourishing Western democracies are confronted with nativist
backlashes against immigrants and refugees; some even experience an
ongoing threat of succession, examples of which can be seen from Quebec
to Scotland and from Flanders to Catalonia.53 Newly born nation-states in
Central and Eastern Europe are wrestling with national minorities within
the newly drawn borders. Cases of political mobilisation of indigenous
people, from the invention of a transnational Inuit ethnicity in the Arctic to
52 E Gellner, Nations and Nationalism (Oxford, Blackwell, 1983); W Kymlicka, Nationbuilding and Minority Rights: Comparing West and East (2000) 26 Journal of Ethnic and
Migration Studies 183; Carens (2005).
53 Kymlicka, n 52 above, p 184.
an almost continent-wide pan-ethnic Indian identity in the Amazon, present
powerful illustrations of the so-called Barth effect.54
Fredrik Barth defined ethnic groups as forms of social organisation that
are the result of group-environment interaction,55 indicating that social
organisation gives meaning to culture and not the other way around.
Therefore, the study of ethnocultural groups should focus on the boundaries
that existed prior to the identities assigned by the group itself or by its neighbours. Social scientists ought to examine how and why these boundaries
are elaborated and maintained between groups, instead of inventorying the
cultural traits that supposedly make each ethnocultural minority unique.56
With this distinction, analyses can be made of the different paths chosen
by ethnocultural groups to participate in their surrounding social systems.
According to Barth,57 such paths are either the acceptance of minority status
or the re-enhancement of ethnocultural identity. The latter option has been
the starting point of indigenous nativist movements, ethnocultural pressure
groups and ethnic political parties. It has also caused new nation-states to
emerge. This new perspective has also altered the relationship between social
scientists and the ethnocultural groups they study. Ethnocultural groups
have ceased to be just informants. They have become political players.
Political and legal interventions are always to be found in situations
where majority positions are challenged and some sort of accommodation
for the rights of ethnocultural minorities has to be found. The specific need,
kind and direction of these interventions are the result of the workings of
an intricate dynamic between:
(1) the mobilisation, organisation and regulation of sentiments of minorities and majorities;
(2) the existing opportunity structure (the state, voluntary associations
in the public domain, scholarly and public discourses) that define
and control legitimate ways in which debates, struggles and negotiations relating to the positioning of ethnocultural minorities can be
addressed; and
(3) the way that ethnocultural justice is understood, socially constructed
and, finally, delivered in the granting (or denial) of minority rights.
Today, nation-states all over the globe are confronted with problems of
how to govern and manage ethnocultural diversity in a fair and just way.
54 F Morin and B Saladin DAnglure, Ethnicity as a Political Tool for Indigeneous
Peoples in C Govers and H Vermeulen (eds), The Politics of Ethnics Consciousness (London,
Macmillian, 1997).
55 F Barth, Ethnic Groups and Boundaries: the Social Organization of Culture Difference
(Boston, Little Brown, 1969).
56 Morin and Saladin DAnglure, n 54 above, p 1601.
57 Barth, n 55 above, p 33.

These challenges are the direct effect of migration, nation building, and
minority emancipation movements that strive for (some kind of) public
recognition of their cultural differences and practices.58
A crucial factor in the assessment of minorities claims to particular
group rights is the matching of the perceptions of the majority with those of
the minorities. Little support for minority rights can be expected when the
majority perceives the presence of minority group(s) as a threat to their economical or cultural interests. Quillian found that prejudice against immigrants in the European Union is largely a function of group position and the
relative size of the subordinate group.59 If the size of the subordinate group
increases, so does the perceived group threat since the dominant group(s)
fear that their prerogatives are threatened. Another important condition
of successful or failing claims to minority rights is the role played by elites
from or in support of particular minority groups. Do the elites feel personally or collectively wronged and deprived of what they consider legitimate
ways to success within the larger society? Are they convinced, in the case of
national minorities, that they are given (no) fair chances to leadership and
recognition on a national or regional scale?60 Or, particularly in the case of
immigrant groups, are their feelings substantiated by the political instincts
of ethnic entrepreneurs, who feel that ample opportunity and motive exists
to push successfully for the acknowledgement or extension of special rights
for the ethnocultural group(s), on whose behalf they speak and that they
are able to mobilise, organise and lead? Of course, there are many other
factors in this strategic game. The relative importance of the claims,
history, numbers and territorial concentration of the minority groups, as
well as the reference to a publicly acknowledged theory of justice, are all
significant.61
Rainer Baubck states that the need for cultural recognition arises from
what he calls the ethnicisation of immigrant minorities.62 He presents a
fairly comprehensive taxonomy of eight types of minority rights which are
58 The topics of recognition can vary from language claims; the right to have religiously
denominated schools (Catholic, Jewish, Islamic); the tolerance of cultural practices such as
particular burial rituals, polygamy, (female) circumcision; to the inclusion of (more) minorities
religious holidays in the national calendar; eg in 2006, labour unions in the Netherlands voted
against a proposition to officially include non-Christian holidays in the national calendar.
59 L Quillian, Prejudice as a Response to Perceived Group Threat: Population Composition
and Anti-Immigrant and Racial Prejudice in Europe (1995) 60 American Sociological Review
586, 607.
60 E Gellner (Nations and Nationalism (Oxford, Blackwell, 1983)) argues that irredentist
movements are often led by elites that feel deprived of opportunities to success and leadership
within the given national power structure. They mobilise minorities, and strive for regional
independence or even succession if that serves their personal instrumental interests best.
61 J Carens, Culture, Citizenship, and Community: a Contextual Exploration of Justice as
Even-handedness (New York, Oxford University Press Inc, 2000), p 84.
62 R Baubock, Cultural Minority Rights for Immigrants (1996) 30 International Migration
Review 203, 228.
of relevance to immigrant minorities. Spelling out the logic of such claims
does not imply that they are normatively valid for all minorities or in all
national and societal contexts. But each of these rights can be defended
in some contexts: (a) the right to equality (one should not create groups
of second class citizens within a society); (b) individual negative liberties
(freedoms that do not infringe basic rights of other citizens, eg freedom
of religious worship, education in ones own language, religion or culture, political association); (c) individual protection from discrimination;
(d) rights to public resources for cultural reproduction (eg blasphemy laws,
the rights to the use of minority languages in public broadcasting, courts,
schools, etc; the granting of such rights often depends on the general constitutional framework of a state and the numerical strength and territorial concentration of the minority group); (e) collective protection from
discrimination (structural discrimination, eg remnants from past systems
of slavery or racial segregation); (f) special political representation (eg proportional representation systems, consultative commissions of minorities in
administrative bodies); (g) collective autonomy (eg within a federal state);
and finally (h) the right to secession or national self-determination. The
taxonomy builds up from those rights that are most easy to grant, from
individual to collective rights, to rights that are more conditional and more
difficult to grant within liberal democracies. Furthermore, the rights listed
at the beginning of that taxonomy are easier for immigrant groups to claim
than the latter ones, which are more the domain of national minorities with
a territorial concentration.63 Small immigrant minorities will probably fail
to qualify for many of these rights. Once immigrant groups have become
an intergenerational ethnic minority, immigrants and their offspring have
often no other choice than to accept the institutions of the host society as
the framework for their integration. They might try to change these institutions though, in such a way that they reflect the transnational context
which shapes the immigrant experience and which may lead to the public
acknowledgement of the transformation of the receiving society into a
multicultural one.
In the sphere of the opportunity structure, the myth of state neutrality is
the hardest one to level.64 It is commonly believed that the state should not
be partisan with respect to ethnocultural differences and should treat culture in the same way as religion; that is, as something to which citizens give
a place in their private life, surely not a concern of the state, as long as the
63 Though the struggles of national minorities for recognition follows a patterned dynamic,
the outcome may differ from situation to situation. National minorities may aim for full selfdetermination within the borders of a territory of their own, but may (have to) settle, due
to situational constraints, to become a semi-autonomous part of a federal state, or they may
(have to) settle for recognition of specific cultural rights, such as language rights.

rights of others are respected. As a historical fact this is clearly nonsense.
In the process of nation building, states have always attempted to diffuse
a single societal culture, namely that of the dominant group. To pursue
this aim, liberal democracies have been selectively repressive of ethnocultural diversity, particularly of minority nationalisms, rather than neutral.
In the case of past and present examples of nation building, the collective
aim of the majority has often been quite blunt in refusing group rights to
ethnocultural minorities. The public culture never has been and most likely
never will be neutral.65 What is relevant, though, is the argumentation
behind state interventions. For the nationalising state, the reason for such
intervention lies quite obviously in the collective interest of the majority to
establish a new national identity. Within existing liberal democratic societies, the debates on what the justification should be for granting special
rights, if any, to ethnocultural minorities are waged between libertarians
and multiculturalists.
Francis Fukuyama called the historical absence of group rights in liberal
theory a serious default.66 Thomas Hobbes, John Locke, Jean-Jacques
Rousseau and the American Founding Fathers only spoke about the liberties
of individuals. The rights of individual citizens had to be protected against
the power of the state and later against the hazards of the market. How to
deal with group rights was not something to which they had given much
thought. Classical liberalism was a theory that was based on the ideas of the
Enlightenment and the historical experience of France, Great Britain and
the United States. These were all nations which were at the time ethnically
and religiously relatively homogenous societies (the position of black slaves
in the United States not taken into consideration). Hence, group rights
were not a political concern in these societies at that time. Overall though,
liberal democracies tend to be tolerant towards ethnocultural minorities
and are reasonably well equipped to accommodate cultural differences or
ethnic pluralism within their borders. At the same time, libertarians do not
hesitate to argue that democratic states should not be afraid to impose certain cultural values on its citizens. This is in their view not an execution of
cultural imperialism, but a necessary respect for democratic core values. To
refrain from underlining the importance of equality would simply advertise
a wrong kind of political correctness. In general, though, minority rights
are regarded by liberals with suspicion. For libertarians, they put the subject
of rights wrongly: that is, minority rights benefit the collective, the ethnic
community, over the autonomous individual. Since liberal thought assumes
that open societies are in principle well equipped to handle plurality and
diversity, they are mostly in favour of granting temporary group rights,
65
66
Carens, n 61 above, p 101.

F Fukuyama, The Future of Democracy, Culture and Immigration (Nexus Lecture 2005).
for as long as they are needed to compensate structurally disadvantaged
groups.67
Multiculturalists make a principled distinction between national minorities and immigrant groups.68 National minorities are groups that formed
complete and functioning societies in their historic homelands prior to
being incorporated into a larger society. According to multiculturalists there
is no moral basis for majorities to reject the legitimacy of liberal forms of
minority nationalism. Provided such views are shared, this assumption predicts an increase in the number of multination (federal) states rather than
nation-states. Immigrants are understood as groups formed by the decision
of individuals and families to leave their original homeland and emigrate to
another society. Typically, such decisions are made for economic reasons.
Over time, immigrants and their descendants may give rise to ethnic communities with various degrees of internal cohesion and organisation. In
Kymlickas view, immigrants have come voluntarily to their host societies
and in choosing to come they have agreed to waive group differentiated
(minority) rights.69 They can, however, claim equal access to mainstream
society, language training and protection from discrimination and prejudice. Mostly, immigrants do not resist majority policies to integrate them;
what they do try to do, though, is to renegotiate the terms of such integration. Immigrants are demanding a more tolerant, two-way or multicultural
approach to integration, that would allow them to keep various aspects
of their ethnic heritage. Moreover, the institutions of the dominant society, multiculturalists argue, should be adapted to provide greater recognition
and accommodation of the various ethnic identities of immigrant groups.
Multiculturalists believe it unnecessary and unfair to pressure immigrants
into assimilation, particularly since the demands of immigrant groups
are directed at revising the terms of integration, not at abandoning them.
National integration of immigrants should therefore be a pluralist and tolerant one, and should happen in a thin sense, involving institutional and
linguistic integration but still leaving maximum room for the expression of
individual and collective differences.70
In practice, many democratic nation-states adopt yet another stance
in dealing with demands of minorities, by applying a kind of contextual
67 B Barry, Culture and Equality: an Egalitarian Critique of Multiculturalism (Cambridge,

Polity Press, 2003), p 13.
68 Kymlicka, n 52 above, p 187; and within the immigrant groups sometimes a distinction
is made between those who have acquired citizens status and those that, for various reasons,
have not been able to, eg because they reside in the host country illegally. The latter are
addressed by Kymlicka as metics.
69 W Kymlicka, Multicultural Citizenship: a Liberal Theory of Minority Rights (Oxford,
Oxford University Press, 1995), p 114. The exception is some group specific rights, so-called
poly-ethnic rights, such as cultural dress codes or exemptions from Sunday closing laws.

approach to justice.71 In order to determine what justice requires in a particular case, this pragmatic position requires one to immerse oneself in the
details of a particular case and make context sensitive judgements, rather
than relying primarily on abstract, general principles.
BUILDING SUPPORT FOR HUMAN RIGHTS AND MINORITY RIGHTS
A new ghost is haunting the collective consciousness of many in the West

and beyond. The malaise of modernity,72 a phrase coined by Charles Taylor
in reference to the shrinking of moral frameworks, is feared to weaken the
support of the last remaining grand narrative of our time: the widely ratified
Universal Declaration of Human Rights. Guilt over a colonial past, doubt
over the very existence of a fixed hierarchy of values, incredulity towards
meta-narratives and scepticism over political selectiveness in acting against
human rights violations, do not exactly create the solid ground needed
from which one can successfully bridge the gap between believers and nonbelievers. Are we then facing a Kampf der Gttera battle of Godsa
stand-off between opposing world-views, or is there enough manoeuvring
space for both culture and universalism of human rights? I believe there
isprovided one is willing to face others fears.
In the last few decades some have expressed a fear of Westernisation, of
which the Universal Declaration would be a subtle instrument. The acceptance of the Vienna Convention of 1993, with its acknowledgement of the
relevance of historical and cultural contexts in which human rights have
to be interpreted and implemented, has, however, removed much of this
concern. In cases where human rights violations are defended by references
to internal justice or cultural practices upon which outsiders have neither
the knowledge nor the right to make judgements, much depends on the
quality of intercultural dialogue and the power of diplomacy. In ongoing
conversations, explanations must be provided as to the why, for whom and
whereto of cultural practices that seem to be in tension with human rights.
In doing so, one may pay heed to what Nobel laureate Amartya Sen stated
so emphatically,73 namely that culture and diversity are of no value by
themselves simply because they exist. There are, sadly, plenty of examples
in which peoples basic rights are violated with the poor excuse that that is
merely part of a groups cultural heritage.
Precisely because human rights are not a matter of truth but an issue of
validity, and exactly because they are not a matter of description but an
issue of prescription (an ought to), genuine human interest, consistency
71
72
73
Carens, n 61 above, pp 1314.

C Taylor, The Malaise of Modernity (Ontario, Stoddart, 1991).
A Sen, Identity and Violence: the Illusion of Destiny (New York, WW Norton, 2006).
and intercultural dialogue are essential to get the message across. The
Universal Declaration does contain a belief system and a tool for social
change with an enormous people appeal: since who does not want to be
treated with respect, have their dignity honoured and a fair chance to a
decent, healthy and educated life, and all that within the comfortable borders of ones own cultural backyard? However, the cause of human rights is
not always an easy road to follow, particularly not where ones consciousness and the implementation of such rights leads one to cut across national
borders and the interest groups therein. When this happens, the Universal
Declaration can work as a tool of change, particularly for those that are not
in power, and have a legitimate expectation to be supported and protected
by international law, politics, the media and, most importantly, by the civic
courage and active solidarity of their fellow man.
Human rights, and indeed minority rights, came about as modern day
action schemes: tools intended to aid peaceful integration in the face of
complex relations between ethnoculturally diverse groups of people and
communities. And that is precisely why they have a future.
It would be easy if there was a clear divide between individual rights
and group rights, if they could be conceived of as two mutually exclusive
opposites, of which one should be preferred over the other. But sociocultural realities are more complex then that. A sociological reading of the
history and development of the two types of rights invites one to transcend
an absolute division by showing from case to case how rights always represent interests and therefore that specific claims should always be argued
for publicly and ultimately be grounded in collectively agreed practices of
justice. The legitimacy of (any) rights lies in the community and the public
discourses therein that aim to uphold or modify them. Sociologists believe
there is ample evidence that no rights are truly written in stone: that rights
are merely the consolidation of heart-felt and negotiated concerns of people, and that as such rights constitute a moving equilibrium. One can only
promote respectful ways of struggling through claims to get rights acknowledged. Here, a heavy responsibility rests on the international community of
nations that have signed and ratified the Universal Declaration of Human
Rights and the Vienna Declaration.74
However, no human rights agenda can succeed without fighting persisting inequalities in fair and consistent ways. In this ongoing campaign, the
best service social scientists can today provide the international community
74 Though predominantly seen as an epitaph of individual rights, the Universal Declaration

of Human Rights identifies several rights that presuppose membership of social categories such
as gender, political parties or religious groups. The Vienna Declaration, with its acknowledgement that rights only make sense when interpreted and implemented within specific cultural
contexts, suggests that the division between individual and group rights can be understood as
significantly less absolute.

of man, is to show over and again how the fates of people in todays world
are irreversibly intertwined. For there can be no true empathy or lasting
engagement between people who apparently can afford not to care for one
other.
SELECT BIBLIOGRAPHY
Adriaansens, H, Talcott Parsons and the Conceptual Dilemma (London, Routledge
and Kegan Paul, 1980)
, Een minimale systematiek (1983) Sociale Wetenschappen 355
Allan, K, Explorations in Classical Sociological Theory: Seeing the Social World
(London, Pine Forge Press, 2005)
Anderson, B, Imagined Communities: Reflections on the Origin and Spread of
Nationalism (London, Verso, 1991)
Barry, B, Culture and Equality: an Egalitarian Critique of Multiculturalism
(Cambridge, Polity Press, 2003)
Barth, F, Ethnic Groups and Boundaries: the Social Organization of Culture
Difference (Boston, Little Brown, 1969)
Baubock, R, Cultural Minority Rights for Immigrants (1996) 30 International
Migration Review 203
Berger, P and Luckmann, Th, The Social Construction of Reality: a Treatise in the
Sociology of Knowledge, (Garden City, New York, Doubleday and Company
Inc, 1967)
Bourdieu, P, The Logic of Practice (Stanford, Stanford University Press, 1990)
, Science of Science and Reflexivity (Chicago, University of Chicago Press, 2004)
Braudel, F, Geschiedenis en sociologie in Geschiedschrijving (Ecrits sur Lhistoire)
(Baarn, Ambo BV, 1979)
Bruce, S, Fundamentalism (Cambridge, Polity Press, 2000)
Buruma, I and Margalit, A, Occidentalism: the West in the Eyes of its Enemies
(New York, Penguin, 2004)
Carens, J, Culture, Citizenship, and Community: a Contextual Exploration of
Justice as Even-handedness (New York, Oxford University Press Inc, 2000)
Carens, J, On Belonging. What We Owe People Who Stay, 2005 Summer Boston
Review
Coser, L, Masters of Sociological Thought: Ideas in Historical and Social Context
(2nd edn, New York, Harcourt Brace Jovanovich Inc, 1977)
De Feyter, K, In Defence of a Multidisciplinary Approach to Human Rights in
K de Feyter and G Pavlakos (eds), The Tension Between Human Rights and
Group Rights (Oxford, Hart, 2007)
De Tocqueville, A Democracy in America (Chicago, University of Chicago Press, 2000).
Diamond, J, Guns, Germs, and Steel: the Fates of Human Societies (New York, WW
Norton and Co, 1999)
Durkheim, E, The Division of Labor in Society (New York, New York Free Press, 1997).
Elias, N, The Court Society (Oxford, Blackwell Publishers Ltd, 1983)
, The Civilizing Process (Oxford, Blackwell Publishers Ltd, 2000)
Esping-Anderson, G, Three Worlds of Welfare Capitalism (Princeton, Princeton
Featherstone, M, The Paradox of Culture and the Globalization of Diversity
(Utrecht, ISOR, 1990)
, Global and Local Cultures (1991) 9 Vrijetijd en Samenleving 43
Ferguson, A, An Essay on the History of Civil Society (Georg Olms Verlag,
Hildesheim, 2000)
Fukuyama, F, The End of History and the Last Man (London, Penguin, 1992)
, The Future of Democracy, Culture and Immigration (Nexus Lecture, 2005)
Gellner, E, Nations and Nationalism (Oxford, Blackwell, 1983)
Govers, C and Vermeulen, H (eds), The Politics of Ethnic Consciousness (London,
Macmillian, 1997)
Habermas, J, Die Moderneein unvollendetes Projekt in W Hudson and W van
Reijen (eds), Modernen versus Postmodernen, Buro Studium Generale (Utrecht,
HES 1983)
Honneth, A, Kampf um Anerkennung (Frankfurt am Main, Surhkamp, 1992)
Kagan, R, Of Paradise and Power: America and Europe in the New World Order
(New York, Vintage Books, 2004)
Kymlicka, W, Multicultural Citizenship: a Liberal Theory of Minority Rights
(Oxford, Oxford University Press, 1995)
, Nation-building and Minority Rights: Comparing West and East (2000) 26
Journal of Ethnic and Migration Studies 183
Lepenies, W, Die Drei Kulturen: Soziologie zwischen Literatur und Wissenschaft
(Mnchen, Hanser, 1985)
Mannheim, K, Ideology and Utopia (London, Routledge and Kegan Paul, 1979).
Marshall, TH, Class, Citizenship and Social Development (Garden City, New York,
Doubleday and Co, 1964)
Mead, G, Mind, Self and Society: From the Standpoint of a Social Behaviorist
(Chicago, University of Chicago Press, 1962)
Merton, RK, The Sociology of Science: Theoretical and Empirical Investigations
(Chicago, University of Chicago Press, 1973)
Morin, F and Saladin DAnglure, B, Ethnicity as a Political Tool for Indigeneous
Peoples in C Govers and H Vermeulen (eds), The Politics of Ethnics Consciousness
(London, Macmillian, 1997)
Musil, R, Der Mann ohne eigenschaften (Reinbek bei Hamburg, Rowolt Verlag
GmbH, 1988)
Polanyi, K, The Great Transformation: the Political and Economic Origins of our
Time (Boston, Beacon Press, 1944)
Quillian, L, Prejudice as a Response to Perceived Group Threat: Population
Composition and Anti-Immigrant and Racial Prejudice in Europe (1995) 60
American Sociological Review 586
Romein, J, De Europese geschiedenis als afwijking van het Algemeen Menselijk
Patroon in Historische lijnen en patronen (Amsterdam, Queridos Uitgeverij BV,
1976)
Said, E, Orientalism: Western Conceptions of the Orient (London, Penguin, 1995).
Sen, A, Identity and Violence: the Illusion of Destiny (New York, WW Norton,
2006)
Sumner, W, The Universal Syndrome of Ethnocentrism in Folkways (Boston, MA
Ginn & Co, 1906)
Taylor, C, The Malaise of Modernity (Ontario, Stoddart, 1991)

Turner, B, Citizenship and Capitalism: the Debate over Reformism (London, Allen
and Unwin, 1986)
Wallerstein, I et al, Open the Social Sciences: Report of the Gulbenkian Commission
on the Restructuring of the Social Sciences (Stanford, Stanford University Press,
1996)
Weber, M, Die logische Struktur der idealtypischen Begriffsbildung in P Siebeck
(ed), Gesammelte Aufstze zur Wissenschaftslehre (Tbingen, JCB Morhr, 1982)
Wittgenstein, L, Philosophical Investigations (Oxford, Blackwell, 2001)
Zijderveld, A, The Institutional Imperative: the Interface of Institutions and
Networks (Amsterdam, Amsterdam University Press, 2000)
3
Human Rights and the
Anthropological Perspectives on the
Dynamics of Cultural Differences
M CALLARI GALLI
SOME GENERAL ORIENTATIONS OF THE DISCIPLINE
n the first half of the twentieth century, anthropologists regarded

transnational processes with suspicion (migratory movements, ethnic
diasporas, tourism) because of certain factors inherent in the epistemological principles of the discipline, schematised as follows:
a strong emphasis on local research;
a methodology extremely attentive to particular contexts from which
broader comparisons might be extrapolated;
great attention to and interest in the theoretical propositions of the
concept of culture;
intense political commitment to protecting the groups studied from
any kind of cultural or political imperialism.
Emphasising these positions has led many anthropologists to take
strongly critical stances in the past with regard to universal values and
transnational processes such as human rights. Evidence of this can be found
in the 1947 presentation to the United Nations of Melville Herskovits (a
famous anthropologist and president of the American Anthropological
Association) of a proposal requesting that, in the new world order that
was being projected in the Universal Declaration of Human Rights, not
only should the dignity of the individual be respected, but also that of each
individual culture. This radically relativist position raised culture to the
level of a supreme ethical value, identifying it as the source of every moral
rule and right.
Herskovits position was rejected by the UN Commission and was
strongly criticised by anthropologists and others: it was felt that his optimistic vision that identified moral good with cultural processes of any kind,
72 M Callari Galli
and separated them from economic and political forms, found no support
in the history, past and present, of the relations between different cultures.
Today we are becoming ever more painfully aware of just how many crimes
have been and continue to be committed in the name of the superiority of
this or that culture, and of the extent to which cultural differences may
engender deep hatreds and divisions.
For some decades following Herskovits proposal, anthropology expressed
concern for human rights more at the level of individual researchers than as
an overall discipline. From the 1980s, anthropology began to organically
combine its commitment to defending the interests of the people whom it
studied with ideas taken from the burgeoning human rights movements.
During that decade a social critique of rights and legal processes was developed within the discipline, influenced by Clifford Geertz. His reflections
on law and rights1 argue that law is a distinct form of imagining the real,
and that law reduces social narratives to a skeleton, since whatever the law
seeks, it is not the whole story.
In 1988, TE Downing and G Kushner edited a volume entitled Human
Rights and Anthropology in which many authors suggested that anthropology should contribute to the understanding of human rights and cultural
diversity by showing how conceptions of rights function in different cultures
and how cultures incorporate external ideas. According to CR Barnett, the
recognition of cultural difference should not rule out intervention in other
cultures but, rather, it imposes the obligation to respect the context within
which that intervention is to be carried out. Again, PL Doughty pointed
out that in Latin America, the concept of citizenship had traditionally
been defined so as to exclude indigenous peoples, with the result that
these peoples had become victims of gross human rights violations and
that anthropologists had ignored state policies towards cultural difference,
thereby committing a scientific and moral error. Lastly, J Schirmer emphasised the cultural character of human rights and argued that the question
for anthropologists was not that of the relation between universalism and
relativism, but rather of the relation between human rights culture and
other cultures.2
E Messer, some years later, argued that anthropology should no longer
study cultures as local, isolated entities but as part of an interactive and
interdependent global system of cultures. According to her, the debate
between universalism and relativism can be transcended by recognising that
cultures change and that human rights must be implemented in a world of
cultural diversity, so that anthropologists can help the human rights cause
1 C Geertz, Fact and Law in Comparative Perspective in Local Knowledge: Further Essays
in Interpretative Anthropology (New York, Basic Books, 1983).
2 TE Downing and G Kushner (eds), Human Rights and Anthropology (Cambridge, MA,
Cultural Survive, 1988).
Human Rights and the Anthropological Perspectives 73

by clarifying the relations between international human rights law and
particular cultures.3
The last anthropologist I wish to quote is R Wilson for whom the task of
anthropology is to put the human back into human rights. He complains
that the discourse of legal positivism and sociopolitical realism favoured
by governments and NGOs misrepresents the subjective experiences of the
victims of human rights violations; consequently, from a moral point of
view, these are questionable features of a highly moralistic discourse. The
abstract universalism of human rights discourse often ignores local contexts
and thereby misunderstands the social and cultural dimensions of conflicts
over rights. Human rights law speaks in a clear and certain voice whereas
the human rights experience is complex and uncertain. In order to move
beyond subjectivity to objectivity, human rights discourse, paradoxically,
dehumanises its subjects.4
LIGHT AND SHADOW IN THE APPLICATION OF
HUMAN RIGHTS IN CONTEMPORARINESS
Careful examination of the initial situation in which human rights were

applied will immediately highlight a host of difficulties and contradictions:
the thorniest problem to be solved concerned which role to assign to cultural differences that may produce beliefs and viewpoints in opposition to
the fundamental values and practices of daily life.
I think it would be useful to map the ambiguities, the continual omissions
and reservations that make up the silent pattern of the rhetoric of human
rightslet us say, their hidden discourse: useful so that it may be referred
to in the critical discussion undertaken in this chapter, starting from the
anthropology of contemporariness and based on its epistemological and
methodological principles.
Potential conflicts exist in the shadows among civic, political and social
rights. Moreover, while, from the 1960s, the processes of decolonisation
were inspired by the Universal Declaration of Human Rights, the historical
reality of colonisation remained in the shadow. In the same shadow, the
reality of womens livesunequal and differentremained and womens
movements would fight for decades to secure rights for females, and to
have such rights considered as human rights, overcoming the opposition between public and private, individual and collective, difference and
3 E Messer, Anthropology and human rights (1993) 22 Annual Review of Anthropology

221; E Messer, Pluralist Approaches to Human Rights (1997) 53 Journal of Anthropological
Research 293.
4 R Wilson (ed), Human Rights, Culture and Context: Anthropological Perspectives
(London, Pluto Press, 1997); R Wilson and JP Mitchell (eds), Human Rights in Global
Perspective (London, Routledge, 2003).
74 M Callari Galli
equality. It is not by chance that these two primary omissions are today
the most important objections to the rights grammar expressed by both
feminist and post-colonial movements.
The subsequent history of human rights is also full of light and shadow:
in the shadow lies the use of human rights to bring the enemy into disrepute during the time of the Cold War, as well as in relations between the
United States and Central and South America: above all the transformation
of the inclusive and universalistic capability of human rights into Western
imperialism must be remembered. This accusation is repeated by those
people, governments and cultures that oppose Westernisation; and today
this point is becoming more and more relevant since the rhetoric of human
rights is under the armed control of the most powerful nation of the world,
which claims to impose respect for such rights on the rest of the globalised
world.
Are we thus facing a clash of universalism and relativism?
UNIVERSALISM AND RELATIVISM
If, in analysing the relationship between the two, we assume a standpoint

of mestizo processes, of hybridisation, it is possible to identify the limits of
the relativism that, very naively in the first decades of the twentieth century,
many anthropologists sought to exalt in defence of minority values and
lifestyles that were threatened by principles and ideologies so different as to
be oppressive and inimical, even while they claimed to be the only human
onesjust, universal principles that would provide for future paradises.
Relativism (the same relativism that had led Melville Herskovits to propose that the 1948 Declaration of Human Rights should contain an article
regarding the respect for cultures), risked, in its generous but unrealistic
defence, confining each culture to its own boundaries: above all, it denied
the possibility that anthropology and the social sciences might identify
theoretical and methodological tools with which to study the great changes
that were already looming in the mid-twentieth century and which would
invest the cultures of the entire world with the most energetic dynamics.
Yet within the theoretical scheme that studies cultural contacts in terms of
mestizo processes, certain relativistic orientations must be preserved and
their paths followed. Such relativism is so new with respect to previous
definitions of the term that it should perhaps be replaced with a different
term more relevant to its new contents: a term that would show how the
complexity of our society necessitates an alternance of universalism and
relativismuniversal horizons at the level of objectives, and contextual
(and therefore relativistic) articulations at the level of practices. This preeminence of contexts obliges every human being to feel insecure, to doubt
the validity of cultural expressions loaded with certainty and universally

valid principles; it is the pre-eminence of contexts that leads us to live and
to choose our route through life in a piecemeal fashion, following specific
orientations of contemporariness.
It is easy to speak of universal values in the abstract: no one would question the importance of liberty, equality, fraternity. The problems arise when
we move from affirmations of general principles to examining the practices
and policies inspired by them. How can fraternity be developed among
groups supporting opposed principles and lifestyles? How can equality be
guaranteed in a world where resources are owned by a restricted minority determined not to cede them and to defend them with every means
possible?
It is difficult nowadays to design concrete political measures starting out
from abstract principles and entities. Perhaps it would be easier to abandon
faith in universal, eternal principles and concentrate on commitments and
policies to be implemented in communities, of different dimensions, with
fluid, ill-defined boundaries, sometimes scattered over wide territories and
lacking continuity, but momentarily sharing common ideals.
To abandon faith in universal, eternal principles does not entail committing oneself to nihilism or pursuing ones own individual interests moment
by moment. On the contrary, it involves identifying new paradigms that
remind the collectivity that contemporariness requires the establishment
of new social relations, new interactions, new bonds that will replace the
struggle between groups that hate each other because of their belief in
religious tenets or cultural models or lifestyles they hold to be superior and
seek to affirm universally. The relativism of contemporariness demands that
we implement new forms of mediation between different cultures, that we
achieve negotiation between systems that support opposed interests, that
we combat all forms of fundamentalism, that we foster dialogue between
the differences, that we strive for comparison and agreement in place of
conflict and tension. As the entire history of humanity reminds us, an individual armed with absolute truths is always a potential assassin.
Let me give a brief example to clarify my meaning. Human rights may be
understood as general orientations, as forms of communication necessary
for reflection on their continual violation, in order to highlight them. But
they are in fact specific contexts that must guide us in establishing the possible steps so that human rights may somehow, to some extent, become part
of daily experience. Absolute universalism is defended by the supporters of
the view which aims to unconditionally legitimate the rhetoric of human
rights and the values of some democracies which defend that rhetoric. In
this case, too, the reality is much more complex.
First, since such rhetoric is subtended by brute military force it loses all its
purity of purpose: the wars of the last decadesGulf, Kosovo, Afghanistan,
Iraqcan be seen as an ongoing perversion, or degeneration, of the noble
idea of peace maintained by rights into a statement of rights through war.
76 M Callari Galli
And this perversion cannot be considered a methodological detail that
leaves the notion of the export of rights and democracy untouched: instead,
it perverts the very nature of the 1948 Universal Declarationthe significance of democracy, the value of human rights and the balance among
international relations are completely upset, demanding that political action
and rights should change by seeking new relations and new alliances.
The Explosion of Terrorism in Contemporariness

The path to this new way of considering democracy and human rights
is neither simple nor straightforward: after the promise of 1948 that the
world would renounce violence and war, in that same Western world the
horror has returned in the shape of war, torture and the violation of human
rights. The same ambivalence makes it difficult to balance the defence of
human rights with a world torn apart and scarred by terrorism: many violations of civic and political rights seem to be necessary in order to protect
our lives and our peaceful lifestyle, threatened by continuous faceless terrorist outrages. Again, how can human rights be respected when faced with
the need to obtain the information required to unmask criminal designs to
overturn the hard-won co-existence within our societies and between different societies?
It is hard to find clear-cut responses to these dramatic questions, but one
prospect (perhaps utopian but at least indicative of possible new directions)
does appear in the report submitted by the then UN Secretary-General,
Kofi Annan in March 2005 to the General Assembly, entitled In Larger
Freedom: Towards Development, Security and Human Rights for All. The
Executive Summary of the report notes:
the world must advance the causes of security, development and human rights
together, otherwise none will succeed. Humanity will not enjoy security without
development, it will not enjoy development without security, and will not enjoy
either without respect for human rights Hence, the cause of larger freedom
can only be advanced by broad, deep and sustained global collaboration among
states.
The response to terrorism ought to be based on a holistic and interrelated

understanding of human security, rights and development. It should always
be within the framework of human rights and the rule of law. The domestic and international legal framework being put in place as a response to
terrorism is desirable. But what is not acceptable is individual states resorting to unilateral actions that are not justified within the international law
framework, or committing acts that violate the Geneva Conventions or the
Convention Against Torture.
Use of force should not be the sole response in the war on terror.
Individual states, while passing counter-terrorism legislation, ought to take

into consideration human rights implications and the potential for abuse by
law enforcement authorities. The fact that young people in different parts
of the world are ready to die for a cause (however illegitimate it may be)
shows that there is something fundamentally wrong.
In these circumstances, there is a more urgent need for the international
community to help in building societies based on principles of democracy,
good governance, human rights and development so that they do not serve
as recruiting grounds for terrorists. But this need for democracy, good
government, and the spread of human rights and development requires
precise and circumstantiated knowledge of the various political, economic
and cultural situations of the societies in which intervention is to be made.
And this knowledge must underpin the programmes and proposals for the
interventions to be developed at the different levels. The diffusion of culture
and technology, peculiar to Western societies, demonstrates that they do not
anticipate people failing to take account of the contamination they undergo
in transference and in grafting. To invoke the spread of democracy means to
be aware of the application of the parliamentary system, in countries that
feature social divisions rooted in a structure of society that privileges age
or wealth hierarchies, ignores values like self-determination and individual
freedom and favours the representativeness of the family group. Such system rarely provides for mediation among the different interests represented
but reinforces the domination of groups already wielding power over all
the others. In many African and Asian countries, the diffusion of education along the Western model has led, on the one hand, to a strengthening
of the traditional elites that have, often totally, identified themselves with
Western models, and, on the other, to a coagulation of anti-Western integralist movements among students who have been excluded by the elites
from participating in the economic, technological and political processes
that determine a countrys choices.
Intervention in the educational, economic and political field would have
to be based on precise, scientifically correct analyses of the social and cultural contexts upon which to graft models. The competences of the social
sciences should be availed of much more than they are at present, especially
those of the anthropological disciplinestheir data collected not merely
by anthropologists in bush jacket and sun helmet as was the case in the
past but also (and especially) by native anthropologists; the latter, present
today in schools and universities throughout the world, should accompany
and support all the programmes aimed at establishing relations and understanding between countries of different levels of development. The partnership between developing and developed countries should be based on a
sense of common humanity so that threats of all kinds are jointly addressed.
Countries forming such partnerships should consider the notion of larger
freedom: it is important to recognise that the fight against terrorism should
not be given any undue priority, which would lead to the neglect of other
78 M Callari Galli
equally important issues relating to development and governance. The
counter-terrorism laws and practices that are being developed should be
based on greater respect for human rights and should be within the framework of the rule of law. A states domestic commitment to its constitution
and laws should be protected in the fight against terrorism so that civil
liberties are not undermined. Larger freedom is about ensuring that people
have a variety of choice in their life. These choices are possible only if their
security, development and human rights are assured. Values of non-violence
and fraternity are essential to the progress of societies and for the common
good of humanity. The present state of anti-terrorism efforts worldwide has
given little assurance to people who live without any hope of development
and whose human rights are continually violated.
CULTURAL DYNAMICS OF CONTEMPORARINESS
Today, our planet bears witness to incessant transverse movements

migrations, diasporas, shifting of capital, wars, various forms of tourism,
electronic communicationsthat produce new articulations of cultural differences between peoples; and their representation can no longer follow the
map established by a centuries-old tradition of study. Groups and individuals must increasingly face and experience processes in which the economic
globalisation of markets and cultural homogenisation accompany new
social and cultural divisions and the revitalisation of traditional localisms.
While the possession of a village or a hill may still involve a fight to the
death, it is also true that the combination of one territory/one group/one
culture that for decades guided the policies of governments and the studies
of social sciences now seems to fragment under the impact of the processes
of deterritorialisation. This combination has also been eroded by the theoretical and practical stances taken in the name of human rights which, as a
result of their universalism, have cast doubt on the real and symbolic boundaries of the nation-state, a process aided by television and Internet broadcasts, the creation of supranational military forces and the organisation of
transnational labour. To many, the world looks at once wider and smaller,
certainly not able to be reduced to a set of human groups encapsulated in
small, isolated and homogeneous cultures, to use a formula laid down by
the anthropological method of the previous century. And the anthropology
of contemporariness increasingly focuses on an attempt to understand the
potential destiny of local identities, of local cultures, and the structure that
will be assumed by the infinite localisms that continually interface with the
dizzying processes of globalisation. On the one hand, a possible outcome
may be glimpsed in the destruction of cultural specificities, overwhelmed by
the globalisation of the markets and by consumerism, and by the emergence
at the world level of a genuine cultural homogenisation that will lead to the

Westernisation of the entire planet; but it also seems possible that globalism
is not identified with a full adherence to Western culture but that, rather, by
giving rise to a series of processes of indigenisation of its cultural motifs,
it is actually causing an increase in cultural differentiations, at new rates,
and is bringing about new elaborations of local identities, reterritorialising
the processes of deterritorialisation.5
The process of globalisation has completely changed the relation between
time and space, and the history of our time has a rhythm that we could not
previously have foreseen: the difficulties of making any prediction renders it
difficult, in turn, to delineate stable norms and juridical principles.
The extraordinary transformations in communications among cultures
and people require us to rethink the very logic of universalism. The question is whether to include what up until now has been excluded: in the
global scenario times and spaces overlap, frontiers and identities break up
and multiply, the functions of nations overshadow functions of supranational sovereignty in such a way that the logic of universalism elaborated
in the past no longer works. The tension between the principle of equality
and the principle of difference becomes so sharp that it demands a different
logic: a universalism of difference is most likely needed to sit in opposition
to the principle of identity.
In the looming state of risk in which democracy now finds itself, no time
can afford to be lost: we must plan within the entropic effects generated by
what has been called rights inflation, that is the extension of the concept of
human rights to an ill-defined number of issues. This has led to an increase
in requests and in the subjects who can advance such requests; it has
encouraged automatic translation of expectations into rights that are very
often difficult to uphold in the absence of adequate tools of governance.
Because of the primary omissions, because of the changing time in which
we live, and because of the new fluid relations established between different
groups of people across the continents, the grammar of human rights has
to be planned with new modalities that must be experienced by all of the
different nations, cultures and people.
MARGINALITY AND RESPECT OF HUMAN RIGHTS
The socioeconomic rights defined in the 1948 Universal Declaration of

Human Rights set out minimum standards of entitlements to be enjoyed by all
individuals and households globally. Yet, by the end of the twentieth century,
the realisation of the standards embodied in those clauses remained more of
an aspiration than a reality, even in some of the worlds richest countries. As
5 A Appadurai, Modernity at Large (Minneapolis, University of Minnesota Press, 1997); JX
Inda and R Rosaldo (eds), The Anthropology of Globalization (Malden, Blackwell, 2002).
80 M Callari Galli
John Gledhill writes, by 1995, when the UN Copenhagen Summit reiterated
that poverty and social development were central to the global agenda, it had
become all too clear that there was a fundamental problem in basing any new
war on global poverty on the terrain of the politics of rights.6
In fact, there are many cases of poverty and underdevelopment, and such
cases, as pointed out above, are generally inhomogeneous from one area
to another, even among groups belonging to the same area. Indeed, the
very concept of underdevelopment and its geographic concentrationand
hence the definition and localisation of povertynow appears far more
complex than it did in the past, and requires indicators other than strictly
economic ones, eg quality of life and individual wellbeing; possibility of
access to education, healthcare and per capita resources; lack of respect
for human rights; lack of political rights and of democratic pursuit of
civic life.
The concept of the southern half of the world has, in some ways, lost its
monolithic character and no longer seems entirely relevant, insofar as some
countries which previously belonged to the southern world and the underdeveloped area of the globe, have now achieved a good GDP and good
growth rates and are dealing reasonably well with problems such as famine,
in such a way as to overturn the traditional league tables of industrialisation. I refer here to China, India, the oil-producing countries, the so-called
four dragons of South Korea, Singapore, Hong Kong and Taiwan.
In contrast, however, success has not touched a great many southern
world countries. Those countries situation has worsened alarmingly, as
recorded in the 2002 Report on Human Development: the Quality of
Democracy: the richest 20 per cent of the world currently benefits from
82.7 per cent of the wealth produced, while the poorest 20 per cent receives
a scant 1.4 per cent of that wealth.
With such a wealth of factors, profoundly diverse but each having an
effect on previous certainties concerning widespread and shared economic
growth, any analysis of social development or poverty must abandon the
strictly economic factors and focus instead on factors of social inequality,
giving pride of place to human persons, their material and non-material
needs, and the environments in which they live and move. In the view of
Amartya Sen, to be poor means not only having no money but also (if
not indeed primarily) not being able to achieve the essential functions of
human life: nourishment, clothing, shelter, healthy living, but also including
having high expectations from life, such as the expectation of education,
secure work, participation in social and political life, and respect for human
rights.
6 J Gledhill, Rights and the Poor in R Wilson and JP Mitchell (eds), Human Rights in
Global Perspective (London, Routledge, 2003).

Emigration and Human Rights
A great number of studies performed over the past few decades have shown
how migration flows converging on various European countries have been
concentrated mainly in metropolitan areas: in the United Kingdom at the
end of the twentieth century, 43 per cent of all immigrants were to be found
in Greater London, accounting for 14 per cent of the capitals population. Similar phenomena can be observed in Germany (Berlin, Frankfurt,
Hamburg) and France, where immigrants accounted for 14 per cent
of the population of Greater Paris, 13 per cent of Lyon and 9 per cent
of Marseille. This high concentration of immigration in urban areas creates tension as regards the settlement of the alien in the reception areas
and also produces negative outcomes in the economic, social and cultural
development of the settlement areas that in mass-media language are systematically defined as marginal urban sectors. Marginality, as currently
used, means marginalisation, decay, poverty. It is extremely important
to urgently clarify the causes of this decay, to explore the map of the activities of the immigrants, their levels of settlement, the violations for which
they are responsible: for we need circumstantiated knowledge of the relations they have with the host states institutions, and such institutions with
them, if the respect of rights, of all rightsthose embodied in International
Conventions and those laid down in constitutions, in the laws and in the
tradition of the juridical and social culture of the various countries to which
they come to liveare to be guaranteed for all.
The existence of such a mixture of ethnicities, minorities and nationalities diverse and differentiated but co-existing within one and the same
territory, leads to the acting-out of specificities and characteristics and
engenders conflict. Any study of such differences and marginalities leads
irrevocably to focusing on the birth and existence of conflicts, dispensing
with the vision of multiculturalness as harmonious community. In addition,
within the metropolitan and urban panorama, the conception of community itself breaks down in the face of peoples mobility, ideas, goods, and
the fluidity of their interactionsas though there were no communities, but
rather, sets of networks, sometimes overlapping, sometimes melding, but
more often appearing devoid of consistent linkages: networks of families,
of friends, religious networks, political ones and economic ones.
The very idea of citizenship within this conceptual and methodological
perspective needs to be revised and rethought: citizenship can no longer
be conceived as a generic formal membership that takes no account of the
subjectivity of the individuals to whom it is applied or to whom it is denied.
When civil, political and social rights are not guaranteed because they are
not considered to be inherent to the subject, but are granted according to
laws made prior to certain situations being created, human rights lose their
significance and become inapplicable. Which human rights are guaranteed
82 M Callari Galli
to the refugees crowded into camps, which to the immigrants of the
European metropolises and cities lacking any economic means, moonlight
workers, dwelling in the city outskirts and the downgraded districts? In
such cases, citizenship should be differently articulated and made more
adaptable to situations peculiar to different groupsperhaps granted in a
limited and partial way but at least acknowledged as the primary right to
social visibility.
The scenario of contemporariness, with its mixtures of transversality and
deterritorialisation, of sociocultural dislocations and extreme localisms,
demands extensive changes in the study and the policies of intercultural
relations: if we are to make any active contribution in a transnational
world, populated by cultures that are less and less dependent on unitary
and cohesive models of culture and education, we need to conceive of
new tools with which to address the newly articulated, complex collective
experiences, and these are, in many respects, more similar to one another
than we are ready to believe. Every time we undertake to examine or to
carry out an encounter with a different culture, we should reject the idea
that we face a locally elaborated culture made up of a consistent system
of repetitive, self-reproducing practices that have remained untouched by
outside influences and attractions. In that way, human rights might provide
a language upon which to build lines of communication for possible common orientations. We should recall more often that, in spite of the many
voices that accuse human rights of being agents of cultural imperialism,
the doctrine of human rights has been adopted by many groups and minorities as a weapon against the arrogance of their governments and of Western
economic policies.
CONTRIBUTION OF ETHNOGRAPHY TO A PLURALISTIC APPROACH
TO HUMAN RIGHTS IN A MULTICULTURAL WORLD
From the date of the Universal Declaration of Human Rights in 1948, the
world has witnessed an ongoing multiplication of emerging states, many of
them in conflict with one another, as well as dealing with internal regional
conflict. Groups make continual and increasing requests to oversee their
own development; the world teems with movementsof goods, individuals, groups, images, informationwith a strongly transnational character;
the number of NGOs trying to bridge the gap between the declarations of
principle of human rights and the practical implementation of such rights
has grown.
In such a new world order, it has become imperative to identify and
analyse the different cultural and religious perspectives on human rights.
Ethnography can make a contribution towards dealing with these problems, both through its epistemological positions and its methodologies and
techniques.

The changes in the articulation of the differences that have come about
in contemporariness have altered the theoretical approaches and the methodological perspectives that were employed in ethnography during the first
decades of the twentieth century. Those approaches and perspectives were
based on empathetic processes that linked the observer with the observed,
but at the same time, both in practice and in the construction of the final
text, ethnography was entirely aimed at collecting data that were considered to be objective manifestations, in relation to which the subjectivity of
the researcher was supposed to be nullified. Today, however, ethnographic
description takes on a much more problematic dimension, inserting the
hypothesis of a direct correspondence between representation and experience: in the encounters in the field as well as in the elaboration of the text,
the aspects of dialogue and interpretation of the ethnographic experience
are in the foreground.
Ethnography, then, is no longer a mere representation of the data collected by the researcher, but rather a construction performed by the
researcher together with the cultural witnesses chosen, giving utterance to
all the subjectivities encountered in the process.
This new dimension of ethnography, with its aptness to collect cultural
narratives, renders it ideal, with regard to human rights, for the task of
ensuring the satisfaction of a new right among the groups and individuals,
the right to narrate, as identified and described by Homi Bhabha.
In a contribution to the Oxford Amnesty Lecture of 2003, Bhabha
interpreted that right as the right of individuals and social groups to tell
stories that create their own web of history, challenging and providing
alternatives to those customs and conventions that currently dominate
social discourse: Bhabhas articulation of this right is occasioned by a
broader discussion of the implications of multiculturalism and its linked
claims of cultural respect and recognition. Rejecting the dominant assumption that only the culture of whole societies is worthy of respect, Bhabha
defends the ethical importance, in a globalised context, and the increasing
practical significance of what Charles Taylor has described as the partial
milieuxpartial or minority cultures. The right to narrate both recognises
and protects the vital role that minority cultures play in modern societies as
moving signs of civic life.7
An Intercultural Approach Starting from Local Cultures
With the close attention that it pays to the rhythms of daily life, ethnography is able to anchor human rights in the social and moral spaces shared by
7 H Bhabha, On Writing Rights in MJ Gibney (ed), Globalizing Rights (New York,

Oxford University Press, 2003).
84 M Callari Galli
the collectivity, and to provide materials to create a human ontology that
does not rely on principles elaborated by the Western world, but emerges
from ethnographic observations that reveal moral attitudes towards human
dignity as shared at intercultural level.
Ethnography does not focus on describing the passivity of the victims of
human rights violations; but gives a central place to the daily acts of resistance against abuses and offences. It thus becomes possible to identify the
general dynamics of the changes in values that occur in the social practices
of those who rebel against the violation of their rights, independently of
the variables linked to the different contexts from which data and accounts
emerge.
The need and the desire to abandon research focused on small, isolated,
homogeneous cultures have led to numerous attempts to construct new
forms of ethnographic research and new kinds of anthropological reflection. In this regard, there has been, in recent years, an increase in ethnographic studies devoted to global institutions, the processes of globalisation,
diaspora populations and transnational flows.
Many such studies have addressed the relations between human rights
and transnational processes and institutions; they provide interesting levels
of comparison between the ways in which human rights, in different areas,
link with transnational religious traditions such as Buddhism or Islam.8
Intercultural studies also highlight the importance of connecting human
rights violations and the reaction to them with the characteristics of the
contexts in which they occur. Thus, the claim to rights of liberty of religion
put forward by Islamics in Macedonia, Indonesia and South Africa can be
compared with one another, since they occur in states that have structures,
disciplinary powers and positions within the global economy analogous
with or similar to one another; whereas it would seem less productive to
compare requests for respect of rights made by the native populations of
Canada with those of the native populations of Bangladesh.
Comparative studies of the different legal approaches to human rights
are still very rare; however, a series of studies has investigated the ways in
which local standards and practices support or conflict with international
norms.
Anthropologists who have worked in South America have tried to
underline the apparent contradiction between legal principles and practices
peculiar to communities, on the one hand, and the universal safeguards of
individual rights on the other. One particular category of rights concerning
community control over land, resources and the right of each community
8 JR Bowen, Sharia, State, and Social Norms in France and Indonesia, Paper no 3 (Leiden,
Institute for the Study of Islam in the Modern World, 2002); MA Mills, This Turbulent Priest:
Contesting Religious Rights and the State in the Tibetan Shugden Controversy in R Wilson
and JP Mitchell (eds), Human Rights in Global Perspectives (London, Routledge, 2003).

to directly manage its own development may be in diametric contrast and
conflict with state or inter-state notions of sovereignty and individual property rights, thereby creating ambiguous behaviour which may even lead to
open conflict.
Scholars of African situations have investigated the cultural contexts
of local customs, such as the mutilation of female genital organs and the
unequal access for women to land, food or medical treatment, and this has
provided a cue for analysing the numerous cases where cultural orientations
and human rights clash.
Such research into how local communities perceive notions and practices connected with human rights supplies the evidence necessary to
identify where, when and how local cultural practices and ideas support
the aims of international law, by embedding those aims in the culture.
Where local practices and principles appear to deviate from international standards, anthropologists look for the cultural reasons underlying these divergences and often seek to identify practices and policies
that may help to establish a certain congruence between the local law
and international law.
Some Suggestions for an Ethnographic Study of Human Rights
The interpretations of human rights are rooted in individual biographies, in
community histories, in the power relations that characterise the different
groupings that make up a community. All of these elements are part of the
protocol of any anthropological research, and every anthropologist knows
that their relation with the formal version, with the official level, must never
be taken for granted but must, instead, be investigated and laid bare.
Again, while African and Asian operators may make use of human rights
language in putting forward their claims, it cannot be assumed that they
consider those human rights in the same sense as the meaning ascribed to
them at juridical level. It should always be borne in mind that the doctrine
of human rights is reworked and transformed by the different contexts in
which it is applied, regardless of whether such contexts are Western or not.
In using the ethnographic method to understand the effectiveness of human
rights it must always be remembered that the key to a comparative analysis
can be found, not in a particular group of rights, but rather in the social
categories that are included in, or excluded from, the protection afforded
by those particular rights.
Even if it is accepted that ethnography, in forgoing any claim to completeness, partially encompasses transnational relations, the problem of how to
conceptualise the relation that exists between global and local remains. This
relation may be conceived of as a network of networks, a mosaic branching out in all directions, a model of connections that intermesh and overlap
in a pluralistic and changeable way.
86 M Callari Galli
The task of the anthropologist in following this perspective might be not
only to supply methodological and technical tools for research, but also to
study the interaction of the legal processes that operate at the different levels: this could include a study of how human rights law gives shape and pattern to local normative systems, and how the latter, in turn, contend with
transnational law or, alternatively, appropriate such law into those systems.
Anthropologists might also study how social actors develop different ways
of using transnational law in their national tribunals in order to construct a
case as a case of violation of human rights; and how the local tribunal, in
turn, tries to oppose the usurpation of its power by the international courts.
In this way, the study of human rights becomes an ethnographic exploration of how normative discourses based on law are produced, translated
and rendered material in a variety of contexts.
By penetrating to a more exemplificative level of possible ethnographic
practices, anthropologists can contribute to clarifying the notions of human
rights in specific cultural contexts, analysing the contexts within which
the concepts of person and individual, so important for the articulation of
human rights, leave certain categories of individuals unprotected. At the
same time, ethnographic data may be of value in devising educational material to link emotional aspects and feelings with the rational level of human
rights. Anthropological research into the rights and duties present in the
different societies can be of great help in modelling the rhetoric of human
rights and the tools for advocating them.
By identifying the cultural and familial notions regarding practices in
infant nutrition, in hygiene and healthcare techniques, or in preparing
people for work, anthropologists can highlight the places and groups where
childrens rights need to be safeguarded and expanded; or, through detailed
investigation, anthropological studies can provide indications for launching
a series of negotiations and mediations to reduce the brutality with which
weak strata of the population are exploited, where there is no possibility
of eliminating such exploitation altogether. And groups working on human
rights in different contexts worldwide should be enabled to move in safety
among the multiple diversities that characterise institutions, customs and
practices.
SELECT BIBLIOGRAPHY
Albinati, E, Il ritorno: Diario di una missione in Afghanistan (Milano, Mondadori,
2002)
Appadurai, A, Modernity at Large (Minneapolis, University of Minnesota Press,
1997)
Arendt, H, Origins of Totalitarianism (London, Allen & Unwin, 1967)
Bhabha, H, On Writing Rights in MJ Gibney (ed), Globalizing Rights (New York,
Oxford University Press, 2003)

Bowen, JR, Sharia, State, and Social Norms in France and Indonesia, Paper no 3
(Leiden, Institute for the Study of Islam in the Modern World, 2002)
Callari Galli, M, In Cambogia (Roma, Meltemi, 1966)
, Antropologia per insegnare (Milano, Mondadori, 2000)
, La fusione degli orizzonti (2000) IV 1 Pluriverso 74/81
, Antropologia senza confini. Percorsi nella contemporaneit (Palermo, Sellerio,
2005)
Callari Galli, M and Guerzoni, G, I diritti dimenticati (1999) IV 3 Pluriverso
51/91
Callari Galli, M, Cambi, F and Ceruti, M, Formare alla complessit (Milano,
Carocci, 2003)
Downing, TE and Kushner, G (eds), Human Rights and Anthropology (Cambridge,
MA, Cultural Survive, 1988)
Geertz, C, Fact and Law in Comparative Perspective in Local Knowledge: Further
Essays in Interpretative Anthropology (New York, Basic Books, 1983)
Gledhill, J, Rights and the Poor in R Wilson and JP Mitchell (eds), Human Rights
in Global Perspective (London, Routledge, 2003)
Harrison, G, I fondamenti antropologi dei diritti umani (Roma, Meltemi, 2002)
Herskovits, M, Statement on Human Rights (1947) 49 American Anthropologist
53943
Ignatieff, M, The Warriors Honour: Ethnic War and the Modern Conscience
(London, Vintage, 1999)
Inda, JX and Rosaldo, R (eds), The Anthropology of Globalization (Malden,
Blackwell, 2002)
Messer, E, Anthropology and Human Rights (1993) 22 Annual Review of
Anthropology 221
, Pluralist Approaches to Human Rights (1997) 53 Journal of Anthropological
Research 293
Mills, MA, This Turbulent Priest: Contesting Religious Rights and the State in the
Tibetan Shugden Controversy in R Wilson and JP Mitchell (eds), Human Rights
in Global Perspectives (London, Routledge, 2003)
Papisca, A, Diritti umani per lo statuto internazionale del migrante (1990) Pace,
diritti delluomo, diritti dei popoli 93
Preis, B, Human Rights as Cultural Practise: an Anthropological Critique (1996)
18 Human Rights Quarterly 286315
Sassen, S, Globalization and its Discontents (New York, New Press, 1995)
Sen, A, Population, Delusion and Reality (1994) New York Review of Books 62
Staerckle, C, Clemente, A and Doise, W, Representation of Human Rights across
Different National Contexts: the Role of Democratic and non-Democratic
Populations and Governments (1998) 28 European Journal of Social Psychology
20726
Taylor, C, The Politics of Recognition in A Gutmann (ed), Multiculturalism: Examining
the Politics of Recognition (Princeton, Princeton University Press, 1994)
Wilson, R (ed), Human Rights, Culture and Context: Anthropological Perspectives
(London, Pluto Press, 1997)
Wilson, R and JP Mitchell (eds), Human Rights in Global Perspective (London,
Routledge, 2003)
Zolla, E, Lo stupore infantile (Milano, Adelphi, 1994)
4
The Development of Minority
Rights in Europe
LISANNE WILKEN
ince the end of the Cold War there has been a significant increase in
minority rights provisions, not least in Europe. In 1992 the Council
of Europe1 adopted its European Charter for Regional or Minority
Languages2 and in 1995 it adopted the Framework Convention for the
Protection of National Minorities in Europe.3 In 1992 the Organisation
for Security and Cooperation in Europe decided to establish a post on
High Commissioner for National Minorities, and in 2004 the European
Union included respect for minority rights in its Draft Constitution for
the European Union.4
The growth in minority rights provisions at the international level have
been matched by an equal growth in minority rights provisions at national
levels. At the turn of the century many European states adopted new minority provisions or extended those they had.5
The growth in minority rights provisions since the end of the Cold War
is remarkable. Since the end of the Second World War, both international
organisations and Western European states have generally been reluctant
to adopt minority rights. This reluctance is usually linked to memories of
the interwar period, when Hitler used the presence of German minorities
outside of the Third Reich as an excuse for interfering in the internal affairs
1 The United Nations also adopted a minority declaration in 1992: Declaration on the
Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities.
2 The Language Charter entered into force in 1998, when it had been ratified by the
required five countries.
3 The Framework Convention entered into force in 1998 after it had been ratified by the
required five countries. The Convention is the first legally binding multilateral instrument
devoted to the protection of minorities and is regarded as the most comprehensive international standard in the field of minority rights so far.
4 The Draft Constitution was later and for other reasons rejected by the Netherlands and
France in 2005.
5 L Wilken, Enhed I Mangfoldighed? Eurovisioner og Minoriteter [Unity in Diversity?
Eurovisions and Minorities] (rhus University Press, 2001).
90 Lisanne Wilken
of other states and in some instances invading them.6 It is also linked to
the fact that some minorities are known to have collaborated with invading Nazis during the war in order to gain independence from the states to
which they belonged. After the war it was not considered a good idea to
grant minority groups too much independence and recognition.7
When explaining the reintroduction of minority rights following the Cold
War, focus is often directed at security politics. The instability in Eastern
Europe after the Cold War, the civil wars and ethnic cleansings in the Balkans
throughout the 1990s and the prospect of integrating Eastern European
countries into the European Union have been identified as the primary factors which made legal protection of minorities imperative once more.8
The focus on security politics and legislation, however, reveals only part
of the story of the re-emergence of minority rights in Europe. Another part
of the story can be explored by focusing on the role played by minority
NGOs. Since the end of the Second World War a number of different minority NGOs have lobbied international organisations in an attempt to regain
recognition and rights in national and international politics. These minority NGOs and their relationship with international organisations adds an
interesting dimension to the reintroduction of the issue of minority rights
in Europe. It suggests that the reintroduction of minority rights may be
more complex than can be acknowledged by simply looking at the changed
security situation following the Cold War. Minority rights were not simply
reintroduced. They were reintroduced in a specific form and directed at a
specific kind of minorities; minority rights in Europe is at present primarily
concerned with linguistic minorities with a territorial and/or historical
belonging in Europe. Indeed, in some instances they are actually concerned
only with minority languages.9 If we want to understand not only why
minority rights were reintroduced, but also why they were reintroduced in
this specific form, we need to supplement normative and legal approaches
to minority rights with historical and sociological approaches. As pointed
out by De Feyter in this volume, whereas different disciplines offer different
perspectives on human and minority rights, none of them are capable
of grasping the entire topic in all of its complexity. In the case of minority
rights in Europe, the legal and normative perspectives are obviously important, but they fail to incorporate the contextual and active role of minority
agents in the reintroduction of minority rights during the 1990s.
6 D Riagin, Many Tongues but One Voice: a Personal Overview of the Role of the
European Bureau for Lesser Used Languages in Promoting Europes Regional and Minority
Languages in CC OReilley (ed), Language, Ethnicity and the State, vol 1, Minority Languages
in the European Union (Basingstoke and New York, Palgrave, 2001).
7 Ibid.
8 JJ Preece, Minority Rights in Europe: from Westphalia to Helsinki (1997) 23 Review of
International Studies 75.
9 Wilken, n 5 above.
The Development of Minority Rights in Europe 91

This chapter attempts to reconstruct part of the story of the development
of minority rights in Europe by focussing on minority NGOs in the
post-war era. The different strategies that minority NGOs have applied
in their attempt to influence international policies are explored and the
reasons why some have been more successful than others are considered.
In this way I hope to contribute to an understanding of the historical
process of developing minority rights in Europe, which does not simply see minorities as passive objects for rights conferred upon them
by institutions and governments, but which also sees minoritiesor at
least their representativesas strategic agents who have attempted to
influence the game of policy making in post-war Europe. I also hope
to contribute to a multidisciplinary approach to the topic as discussed
by De Feyter.
This chapter begins with a brief recollection of the history of minority rights in Europe. This will first and foremost serve as a context for
understanding both the absence of minority rights during the Cold War
and the re-emergence of rights during the 1990s. The strategies of two
NGOs in post-war Europe in relation to international organisations are
then discussed and their representation of minorities compared.10 The
analysis presented is inspired by the work of the late French sociologist,
Pierre Bourdieu, in particular, by his concepts of field, doxa, strategies and
games. A very rough introduction to the concepts used in the chapter is
provided below.
MINORITY RIGHTS: DEFINING THE FIELD
A precondition for the work presented in this chapter is that policy-making

can be understood with reference to Pierre Bourdieus concept of a field. A
field, according to Bourdieu, is a social arena within which strategic agents
engage in a struggle over something that they find worth struggling for.11
The struggle can be described by the metaphor of a game.12 This means that
agents engage in the struggle to win something: influence, power, recognition
or control over land, for instance. But it also means that they have different
possibilities of winning. Winning a game has only a little to do with luck
and a lot to do with strategies,12a abilities to read the game and the other
10 The chapter is based on a previous study carried out by the author on minority nationalistic movements and NGOs in the European Union during the 1980s and 1990s: Wilken, n
5 above, based on material from international institutions and on published work by other
scholars and representatives of minority NGOs.
11 P Bourdieu, Sociology in Question (London, Sage Publications, 1993), p 72.
12 P Bourdieu, In Other Words: Essays Towards a Reflexive Sociology (Cambridge, Polity
Press, 1990).
12a I am aware that my use of the concept of strategies sounds more calculated than Bourdieu
defined it. This will be dealt with elsewhere.
92 Lisanne Wilken
players, assets relevant for the game and with what Bourdieu calls a feel
for the game.13 Bourdieu calls the assets that agents have capitals.14 The
capital relevant for the field in which minority rights are at stake might
best be defined as symbolic capital related to political and symbolic power.
Political power is related to the power of states. Symbolic power is related
to the right to define the political landscape and thus the right to define
who can have self-determination or political representation.15
The struggle over minority rights is inscribed in the struggle over territorial control and political power in Europe. Minorities may be seen
both as objects and agents in that struggle. Insofar as many minorities live
on territories that are disputed and often claimed by more than one state,
minorities are objects in the way that they may get rights as part of a strategic attempt to secure peace between two states or to prevent invasion or
irredentist claims. Minorities are also agents insofar as they may attempt to
claim rights for themselvesself-determination or the right to education in
their own language, for instance.
In order for minorities to get rights or to claim rights they need to exist
in a recognisable and legitimate form. According to Bourdieu, social collectives are not simply objective entities which exist in and by themselves;
rather, they are arbitrary and need to be classified and represented in order
to be recognised. The classification and representation may change according to time and social context.16 Minorities in the seventeenth century, for
instance, were classified differently than minorities in the interwar period.
Being represented in the relevant way is one criterion for entering the
struggle for minority rights. Another criterion is to have representatives
who have a feel for the game and who can maximise the limited amount of
capital that minorities (by definition) have in the political game. According
to Bourdieu, a field is defined by doxa, which refer to the underlying
premises that make the struggle in the field possible. Only agents who
accept the doxa of the field can participate in the struggle of that field.17
Thus, minorities cannot claim rights by ignoring existing power relations.
Even if their struggle has the ultimate purpose of changing the relations in
the field, they have to play with the rules rather than against them.
The struggles in all fields are the products of history, of previous struggles
and of the more or less inspired moves by previous agents. Therefore, a
historical context is helpful in attempts to make sense of current struggles.
13
P Bourdieu, Practical Reasons: On a Theory of Action (Stanford University Press, 1998),
p 76.
14 P Bourdieu, The Forms of Capital in JG Henderson (ed), Handbook of Theory and
Research for the Sociology of Education (New York, Greenwood Press, 1986).
15 P Bourdieu, Language and Symbolic Power (Cambridge, Polity Press, 1991).
16 P Bourdieu, Distinction: a Social Critique of the Judgement of Taste (Cambridge, MA,
Harvard University Press, 1984), p 169.
17 P Bourdieu, Sociology in Question (London, Sage Publications, 1993), p 73.

The next section gives a very brief historical context for the development of
minority rights in Europe.
MINORITY RIGHTS IN AN HISTORICAL PERSPECTIVE
There is a long history of minority rights in Europe. In the following

section I shall attempt to outline this history by highlighting three significant moments: the Congress of Westphalia in 1648 which was one of the
first attempts to settle the question of minority rights by an international
assembly in Europe; the Congress of Vienna in 1815 which was the first
international event that referred to national minorities; and the interwar
period, when a minority rights regime was developed within the League of
Nations. The purpose of this section is to give the reader an idea about how
minority rights have been important historically and why minority rights
became problematic after the Second World War. This is the context which
frames minority rights struggles today.
The Congress of Westphalia concluded the Thirty Year War in Europe.18
It is mostly interesting in this context because it conferred rights on minorities. The peace-negotiating parties at Westphalia agreed to secure rights for
those primarily Protestant minorities whose territories were redistributed
among the sovereigns of Europe and who ended up as subjects under new
sovereigns.19 While the Congress of Westphalia did not promote tolerance
for religious freedom, it did attempt to re-establish peace by securing rights
for those minority groups who could pose a threat to it.20 In the seventeenth
century, religion was the most important factor for group identification
and, therefore, both a stake in the struggle over power and the significant
defining criterion for minorities.21
One hundred and seventy-five years later at the Congress of Vienna,
national identity had gained momentum, which meant that national rather
than religious minorities were promised rights.22 The change from a primarily
religious to a primarily national foundation for power struggles is linked
to the American and French revolutions and to the influence of philosophers
like Johan Gottfried Herder and Wilhelm von Humboldt.23 The American
and French revolutions firmly tied the concept of sovereignty to the concept
of nation, and Herder and von Humboldt (among others) popularised the
18
See eg Preece, n 8 above.

Ibid; A Alcock, A History of the Protection of Regional Cultural Minorities in Europe
(Basingstoke, Macmillan, 2000).
20 Preece, n 8 above.
21 Ibid.
22 Ibid.
23 Alcock, n 19 above; IBF Kormoss, Mapping Minorities: a Challenge for Research
(1993) 30 GeoJournal 202.
19
94 Lisanne Wilken
nation as organic entities with hearts and souls.24 The revolutions and the
philosophical influence from Romantic philosophy changed the perceptions
of the political landscape in Europe and altered the stakes in the struggle
over power. One of the more important stakes became a claim to nationhood in the Romantic sense of having a language, a culture and a history.
This, on the one hand, led to struggles over the right to define languages25
and, on the other hand, reframed the premises for defining minorities. At
the Congress of Berlin in 1878, protection of minorities had become one
of the conditions for recognising new states by the international system.26
These changes created a new framework for the struggle for minority rights.
If states needed to secure their minorities in order to get recognition, then
other minorities might claim self-determination or autonomy within the
existing state system.
At the peace conference in Paris after the First World War, minority rights
were linked to international security politics. As the American President
Wilson who presided over the peace conference together with the British
Prime Minister Lloyd George formulated it: Nothing is more susceptible to
trouble the peace of the world than the treatment of minorities.27
Wilson was also one of the co-architects of the League of Nations, which
became the framework for an elaborate minority rights regime28 which
conferred rights primarily on minorities in Eastern and Central Europe.29
The League of Nations is interesting for two different reasons. One is that
the League became what could be termed an opportunity structure for
minority representatives who lobbied the institutions and representatives
of the League in order to draw attention to their claims and conditions. In
this way the international organisation of the League of Nations made it
possible for minorities political representatives to claim a more powerful
position in the political struggle for recognition and rights.
Another reason is that the minority rights and protection system created
by the League of Nations is often seen as the most important reason why
international and European organisations after the Second World War
did not reinstate minority rights. It is generally believed that the Leagues
minority protection system paved the way for the Third Reichs exploitation of German minorities in Europe outside of Germany.30 It is also argued
24 B Anderson, Imagined Communities: Reflections on the Origin and Spread of
Nationalism (Verso, 1983), p 133.
25 M Billig, Banal Nationalism (Sage Publications, 1995).
26 Preece, n 8 above, p 77.
27 Wilson, 1919, quoted by Alcock, n 19 above.
28 Although the League of Nations Covenant did not contain any provisions protecting
minorities, the Leagues system incorporated treaties that protected designated minorities.
29 M Mazover, Minorities and the League of Nations in Interwar Europe (1997) 126
Daedalus; P De Azcrade and E E Brooke, League of Nations and National Minorities: an
Experiment (Carnegie Endowment for International Peace, 1945).
30 Mazover, n 29 above.

that those minority movements that collaborated with invading Nazis in
order to secure rights for themselves excluded themselves from further
participation in the political struggle over power and recognition in Europe
after the war. Bourdieu31 has pointed out that all fields distinguish between
legitimate and illegitimate ways of participating in the struggles of a field
and that only agents who struggle by legitimate means are recognised as
participants in a field. Using Nazi occupation as an opportunity to gain
independence or self-determination was not considered legitimate by the
victorious parties after the Second World War. This may explain some of
the reluctance to create separate rights for minorities.
At any rate, the international institutions that were established
after the war in order to help secure peace in Europe and the world
primarily adopted general and individual human rights rather than
specific and group-related minority rights. In 1948 the newly created
United Nations adopted the Universal Declaration of Human Rights.
This declaration did not include specific minority provisions. Instead
it set up a system which promoted individual human rights and antidiscrimination. Contrary to minority rights which secure for minorities
the right to practice their culture, religion or language, for example, antidiscrimination means that people should enjoy equal treatment despite
such differences.
The same was the case with the Council of Europe which was set up
in 1949. In 1950 the Council of Europe adopted its Convention for the
Protection of Human Rights and Fundamental Freedoms, which also focused
on individual human rights and anti-discrimination. Over the years, both the
United Nations and the Council of Europe have adopted some provisions
which aim specifically at minorities; however, until the end of the Cold War
these were few and far between.
Over the years there have been numerous attempts to influence both
national and international bodies in order to get them to adopt minority
rights. Different minority NGOs have lobbied national governments and
international organisations in order to gain official and legal recognition.
And even if it might appear as if they have not been very successful, given
the fact that very few minority rights have been adopted until recently, it
is interesting to look at the different ways in which they have attempted
to promote minority rights. Studying the strategies of minority NGOs in
relation to national and international bodies, looking at their different
representations of minorities and comparing these to the minority rights
that have recently been adopted may tell us a lot about what is and what is
not possible at given times; and also give us an insight into what is generally
taken for granted concerning the cultural and political landscape of Europe.
In the following section I shall consider two European minority NGOs and
31
Bourdieu, n 12 above.
96 Lisanne Wilken
discuss their representations and strategies. They have been selected among
several different European minority NGOs32 by the following criteria: they
have originated in different times, they represent minorities in different
ways and they have managed to influence the international order to different
degrees. I start with a brief discussion of the challenge of NGOs and
then I introduce the two NGOs.
INTRODUCING NGOs
The term NGO (non-governmental organisation) came into currency in

1945 in relation to the construction of the United Nations. The groups that
were labelled NGOs in the UN system were not in themselves new. In the
League of Nations, for instance, there were references to private organisations or international agencies which were consulted as expert advisors.
It was groups like these which were recognised as NGOs with certain consultative status in the UN system. Similar groups were recognised in other
international contexts, for instance in the Council of Europe, however
here the term advisory group or expert group is much more commonly
used.33
The term NGO spread from the specific international political arena in
the 1970s and became a label for very different types of bodies. Today there
is no generally accepted definition of NGOs, however according to Peter
Willets, there are a number of things that NGOs cannot be: NGOs cannot
be directly controlled by governments; NGOs cannot be political parties;
NGOs cannot be profit-making; and NGOs must not be associated with
criminal acts, in particular with violence.34
In order to act as expert advisors for international organisations, NGOs
need legitimacy from above and below. International organisations need
to recognise a given NGO as a legitimate representative for the interests it
promotes, and the NGO should not be challenged too much by the people it
claims to represent. What characterises the NGOs introduced below is that
they attempt to represent very different groups of people from very different economic, political and social backgrounds, each of which is likely to
contain economic, social and political differences. One of the challenges for
the NGOs is to define what the different groups have in common. Another
challenge is to define a common goal for them.
32 See eg Council of Europe (ed), Committee of Experts on Issues relating to the Protection
of National Minorities: Presentations made by NGOs Having Expertise in the field of
Protection of Minorities, DH-MIN (98) 4. Addendum 4 (Strasburg, Council of Europe
Publishing, 1999).
33 P Willets, What is a Non-Governmental Organization? (2002) UNESCO Encyclopedia
of Life Support Systems, art 1.44.3.7.
34 Ibid.

In the following section I shall introduce two different minority NGOs
that have done this in different ways. I am particularly interested in the way
that they represent minorities and in the strategies they use to influence the
policies of international organisations.
FEDERAL UNION OF EUROPEAN NATIONALITIES (FUEN)
FUEN35 was founded in Paris in 1949 as an organisation promoting the

interests of minorities and regions in Europe. It came into being at around
the same time as the Council of Europe and appears to have been well
connected with some of the representatives in the Council of Europe who
worked to get minority rights included in the European Convention for
the Protection of Human Rights and Fundamental Freedoms.36 However,
FUEN faced an uphill battle. In the aftermath of the Second World War,
Europe did not offer a friendly environment for minorities or their political aspirations.37 Even if there was in fact an interest for minorities among
some politicians working to establish international organisations, it was
difficult to represent this interest in the Declarations and Conventions outlining the premises for international cooperation.
The initial aim of FUEN was to become an organisation representing
minorities and regions in Europe in order to secure them some degree of
self-determination. In this way, FUEN continued the line from the interwar
period, where self-determination had been a goal for many minorities in
Europe.38 It was, however, difficult to find support for this approach, both
among minority populations and among states. First, it proved difficult to
find common grounds for the very many different groups that could be
defined as minorities. The difficulties related both to the actual differences
between the groups and what they strived for at the national level and to
the question of the legitimacy of the organisation itself. Not all minority
movements in Europe saw FUEN as a legitimate representative for minority
interests. This affected the claims that FUEN could make, but it also
affected its resources. FUENs finances are based on membership fees,
which means that it is directly dependent on recognition from the groups
it claims to represent.
Secondly, in the aftermath of the Second World War it was difficult
to convince international organisations to include self-determination for
minorities as a general principle in international treaties. In the period after
the war, it was generally believed that the minority provisions adopted by
35
For an extensive analysis of FUEN, see Khl 2000.

J Khl, The Federal Union of European Nationalities. An Outline History 19491999.
(Aabenraa, Institut for Grnseregionsforskning, 2000).
37 Riagin, n 6 above, p 20.
38 Khl 2000, n 36 above
36
98 Lisanne Wilken
the League of Nations were one of the contributing reasons for the outbreak
of the Second World War. Individual human rights based on principles of
non-discrimination appeared to be a much safer option.
Thirdly, FUEN was sometimes accused of being a cover for a German
take-over of Europe.39 German minorities were not initially accepted as
members of FUEN.40 However, as FUEN lost ground in Western Europe
and turned to Eastern Europe, it became oversubscribed by German
minorities.41
FUEN did manage to make an impact as an important minority NGO in
the 1990s; however, for a long time it was seen as the minority NGO that
was not successful. For instance, in A Dictionary of European History and
Politics, Derek Urwin wrote:
Federal Union of European Nationalities (FUEN) failed to develop a strong body,
primarily perhaps because there was no single target to which it could address
its demands.42
However, FUENs failure was more likely a failure to adapt to the post-war
climate. Even if self-determination for minorities was compatible with the
federal ambitions of many post-war European politicians, it did invoke the
image of the interwar period and of the League of Nations system, which
was considered a failed experiment.
FUENs failure to make an impact after the war did not mean that
minority rights were an impossible battle. This can be seen by exploring
another minority NGO which applied an altogether different strategy. In
the following section it is argued that the reintroduction of minority rights
in Europe in the specific form owe a lot to a group of minority representatives in and around the European Parliament. Before that, a few important
changes that happened in Europe during the 1960s and 1970s will be
outlined.
THE ETHNIC REVIVAL
FUEN was the first international framework for minority cooperation in

post-war Europe. But as peace was established and the division of Europe
had become a fact, several other fora for minority cooperation came into
being, especially during the 1960s and 1970s, a period which is usually
known as one of ethnic revival.43 While many minority movements in the
39
Ibid.
R Arquint, The Work of the Federal Union of European Nationalities (FUEN) in
Council of Europe, n 32 above, p 3.
41 Khl 2000, n 36 above
42 DW Urwin, A Dictionary of European History and Politics 19451995 (Pearson UK,
1996), p 176.
43 J Rex, Ethnic Minorities in the Modern Nation State (London, Macmillan, 1996).
40

1960s were inward-looking and most interested in their own political and
cultural destiny, during the 1970s a number of both formal and informal networks were created among movements representing minorities in
Western Europe. Looking at the attempts to establish cooperation among
representatives for minority movements in Europe during the 1970s
revealed the kind of challenges the foundation of international minority
NGOs faced. First, there was a general lack of knowledge about which
minority groups existed in Europe. This results from the fact that, since
the end of the war, there had been very little official interest in minorities in Europe, and from the fact that there were several different ways
of defining minorities. Minorities could thus be national minorities like
the German minority in Denmark and the Slovene minority in Italy; they
could be micro-nations like the Welsh, the Scots and the Catalans; and
they could be linguistic groups like the Catalan-speakers of Sardinia or the
Mirandese of Portugal, who did not want self-determination but did want
some kind of recognition.44
Secondly, there was a dispute about the legitimacy of certain groups and
their representatives. This may be illustrated by the following quotation
from an article entitled My Europe by Welsh nationalist Phil Williams.
Williams is describing how the Welsh nationalist party, Plaid Cymru,
changed from one primarily interested in the Celtic fringe of Britain and
Northern France to one engaged in European cooperation, and noting the
difficulties the party faced:
Even more deplorable [than the Welsh nationalist partys refusal to support Spanish
minorities in the 1970s] was the attitude of SNP45 At one Plaid Cymru conference we had our usual delegates from the SNP and a delegation from the PNV.46
The leading SNP delegates refused to sit on the same platform as the Basques on the
curious grounds that the SNP was a major party and it would weaken the image
of the party to be seen associating with such unimportant riff-raff!
At the same conference we also had a delegation from Vlaanderen (Flanders),
led by Willy Kuijper.47 Until then we had been very diffident about links with
Volksunie.48 People had said that it was a very right-wing party. It was a very
salutary lesson when Willy Kuijper told me that Volksunie had been very diffident
about making contact with Plaid Cymru. People had said that Plaid Cymru was
a very right-wing party.49
44
Wilken, n 5 above.
Scottish Nationalist Party.
46 Basque nationalist party.
47 The Conference to which Williams is referring took place in the late 1970s. The Flemish
Willy Kuijper later played an important role for minorities in the European Parliament and,
when he resigned, the Welsh nationalist Sin Edwards called him MEP for Walesand all
other small, submerged or voiceless nations in Europe (S Edwards, Changing Colours of the
Rainbow (1989) 23 Radical Wales).
48 Flemish nationalist party.
49 P Williams, My Europe (1989) 19 Radical Wales 1011.
45
100 Lisanne Wilken

In spite of the confusion about which groups should be counted as minorities and which representatives should be considered legitimate, a few political coalitions among minority movements developed in Western Europe.
Their main concern was the EC and the effects of European integration on
minority populations.50 When free elections were introduced to the European
Parliament in 1979, several minority nationalist parties had representatives
elected, and by lobbying from without and pressing from within, Western
European minorities managed to put themselves on the European Unions
agenda. The following section discusses how this presence in the European
Parliament gave way to a new strategy among minority representatives.
EUROPEAN BUREAU FOR LESSER-USED LANGUAGES (EBLUL)
In 1979 two different motions for minority resolutions were tabled in the
European Parliament, the Arf motion on a Charter for Ethnic Minorities
and the Hume motion calling for a Bill of Rights of the Regional Languages
and Cultures in the Community.51 As Riagin has pointed out, there
was an important difference between these two motions. While the Arf
motion demanded autonomy for ethnic and linguistic minorities and thus
followed the traditional path of claiming rights in Europe, the Hume
motion claimed that minorities contributed to a diversity that was one of
the main sources of the vitality, richness and originality of European civilisation.52 According to John Hume, MEP, who tabled the second motion,
an approach based on demands for autonomy would not stand a chance as
a foundation for a European minority policy, whereas one based on support
for minority languages just might.53 Humes assessment appears to have
been correct. In 1981 the European Parliament passed its first resolution
in support of minority languages and in 1982 it decided to allocate a small
amount of money to support minority languages.54 What is interesting
in this context is the fact that minority languages (rather than minority
groups, for instance) became the target for support.55
50
Wilken, n 5 above.
Riagin, n 6 above, p 22.
52 Ibid.
53 Ibid p 23.
54 As Adam Biscoe (The European Union and Minority Nations in Cumper and Wheatley
(eds), Minority Rights in the New Europe (Kluwer Law International, 1999)) has stated, this
money was originally meant for Amnesty International which refused to take money directly
from the European Parliament. So the money was instead allocated to support for minorities
in the EC. From 1982 till 1998, the European Parliament has allocated money to support for
lesser used languages. This was stopped in 1998 when the European Court of Justice found
that the Parliaments support for EBLUL and other NGOs were not in accordance with the
Parliaments jurisdiction (A Favell, The Europeanisation of Immigration Politics (1998) available at www.sscnet.ucla.edu/soc/faculty/favell/EIOP-C&C.htm).
55 Kormoss, n 23 above, p 205.
51

In 1983, the European Bureau for Lesser Used Languages (EBLUL) was
founded.56 This primarily EU-funded Bureau functions as an NGO representing minority languages and their speakers in the European Union. This
way of presenting minority interests has proven to be much more digestible
than FUENs more explicit reference to minority groups. This may be
because it not only points out the interest of minorities in preserving their
languages and cultures, but also appeals to majorities who may be interested in a common European heritage of cultural and linguistic diversity.57
Even if FUEN has recently returned to the game as a recognised NGO
with the Council of Europe, EBLUL has been much more influential than
FUEN. EBLUL addresses the United Nations, the European Union, the
Council of Europe and OSCE. Representatives from EBLUL were involved
in drafting the Council of Europe Framework Convention on the Protection
of National Minorities and the European Charter for Regional or Minority
Languages; and it was consulted on the United Nations Declaration on the
Rights of Persons Belonging to National or Ethnic, Religious and Linguistic
Minorities.58 An interesting implication of the influence of EBLUL is that
minority interest in Europe is today primarily defined as an interest in language preservation. This does not mean that minorities only get linguistic
rightsclearly minorities in Western Europe have much more self-determination today than they did 20 or 30 years ago. However, it does mean that
minority rights and recognition include languages, even in the cases where
language has not traditionally been part of the minoritys claims.59
MINORITY RIGHTS IN EUROPE: DIFFERENCES AND SAMENESS
In this chapter I have argued a number of different points. First I have

argued that the conceptualisation of minorities in Europe has changed over
the past hundreds of years: from religious to national to linguistic minorities. This may seem like a trivial point, but it has important implications.
Secondly, I have argued that the memories of the interwar period created
a specific and very difficult context for minorities in Europe after the war.
As the section on FUEN highlights, it was next to impossible for international minority NGOs to get claims for self-determination or autonomy
acknowledged in the period after the war.
Most scholars therefore move directly from the establishment of a human
rights regime after the war to the security situation after the end of the Cold
War in order to explain the re-emergence of minority rights in Europe.
56
Riagin, n 6 above, p 27.

B Brezigar, The Work of the European Bureau for Lesser Used Languages (EBLUL) in
58 Ibid p 7; Riagin, n 6 above, pp 346.
59 See Wilken, n 5 above.
57
102 Lisanne Wilken

However, a third point I make in this chapter is that in order to understand
the linguistic turn that minority rights took in the 1990s, it is necessary to
acknowledge the strategic reformulation of minorities interests by minority
representatives in and around the European Parliament in the 1980s. It is
with the realisation that self-determination will not stand a chance as the
foundation for the formulation of a European minority policy but that a
focus on language might (not least because language plays such a prominent
role in a European understanding of culture) that the linguistic minority
rights of the 1990s were shaped.
The chapter thus argues that important changes have happened during
the ongoing struggle over minority rights in Europe. However, it is important to realise that under all the changes one condition appears to be
unchallenged. The political struggle over minority rights which is inscribed
in the struggle over the right to define the political and cultural landscape
in Europe is only concerned with autochthonous European populations.
The minority rights of the interwar period and the minority rights of the
1990s are only concerned with population groups who are historically and
(for the most part) territorially rooted in Europe. None of the newer immigrant minorities have been included so far. In this way, the changes in the
field of minority rights cover a permanent unchanging condition which is
rarely questioned and therefore may be defined as a doxa of the field: that
a claim to rights is ultimately dependent on a claim to territory or at least
to history.
SELECT BIBLIOGRAPHY
Alcock, A, A History of the Protection of Regional Cultural Minorities in Europe
(Basingstoke, Macmillan, 2000)
Anderson, B, Imagined Communities: Reflections on the Origin and Spread of
Nationalism (London, Verso, 1983)
Arquint, R, The Work of the Federal Union of European Nationalities (FUEN) in
Council of Europe (ed), Committee of Experts on Issues relating to the Protection
of National Minorities: Presentations made by NGOs Having Expertise in the
field of Protection of Minorities, DH-MIN (98) 4. Addendum 4 (Strasburg,
Council of Europe Publishing, 1999)
Billig, M, Banal Nationalism (London, Sage Publications, 1995)
Biscoe, A, The European Union and Minority Nations in P Cumper and
S Wheatley (eds), Minority Rights in the New Europe (The Hague, Kluwer Law
International, 1999)
Bourdieu, P, Distinction: a Social Critique of the Judgement of Taste (Cambridge,
MA, Harvard University Press, 1984)
, The Forms of Capital in JG Henderson (ed), Handbook of Theory and
Research for the Sociology of Education (New York, Greenwood Press, 1986)
, In Other Words: Essays Towards a Reflexive Sociology (Cambridge, Polity
Press, 1990)

, Language and Symbolic Power (Cambridge, Polity Press, 1991)
, Sociology in Question (London, Sage Publications, 1993)
, Practical Reasons: On a Theory of Action (Stanford University Press, 1998)
Brezigar, B, The Work of the European Bureau for Lesser Used Languages
(EBLUL) in Council of Europe (ed), Committee of Experts on Issues relating
to the Protection of National Minorities: Presentations made by NGOs Having
Expertise in the field of Protection of Minorities, DH-MIN (98) 4. Addendum 4
(Strasburg, Council of Europe Publishing, 1999)
Council of Europe (ed), Committee of Experts on Issues relating to the Protection of
National Minorities: Presentations made by NGOs Having Expertise in the field
of Protection of Minorities, DH-MIN (98) 4. Addendum 4 (Strasburg, Council of
Europe Publishing, 1999)
De Azcrade, P and Brooke, EE, League of Nations and National Minorities: an
Experiment (Washington, Carnegie Endowment for International Peace, 1945)
Edwards, S, Changing Colours of the Rainbow (1989) 23 Radical Wales
Favell, A, The Europeanisation of Immigration Politics (1998) available at www.
sscnet.ucla.edu/soc/faculty/favell/EIOP-C&C.htm
Kormoss, IBF, Mapping Minorities: a Challenge for Research (1993) 30 GeoJournal
202
Mazover, M, Minorities and the League of Nations in Interwar Europe (1997)
126 Daedalus
Riagin, D, Many Tongues but One Voice: a Personal Overview of the Role of
the European Bureau for Lesser Used Languages in Promoting Europes Regional
and Minority Languages in CC OReilley (ed), Language, Ethnicity and the State,
vol 1, Minority Languages in the European Union (Basingstoke and New York,
Palgrave, 2001)
Preece, JJ, Minority Rights in Europe: from Westphalia to Helsinki (1997) 23
Review of International Studies 75
Rex, J, Ethnic Minorities in the Modern Nation State (London, Macmillan, 1996)
Urwin, DW, A Dictionary of European History and Politics 19451995 (New York:
Longman, 1996)
Wilken, L, Enhed I Mangfoldighed? Eurovisioner og Minoriteter [Unity in
Diversity? Eurovisions and Minorities] (rhus University Press, 2001)
Willets, P, What is a Non-Governmental Organization? (2002) UNESCO
Encyclopedia of Life Support Systems art 1.44.3.7
Williams, P, My Europe (1989) 19 Radical Wales 10
Part III
Are Rights Universal?
5
Gender Equality and Group Rights:
Negotiating Just Multicultural
Arrangements
SIOBHN MULLALLY
ithin multicultural states the conflicting claims that arise

between the pursuit of gender equality and the protection of
group rights raise particularly intractable questions.1 Multicultural
disputes frequently touch on the roles and status ascribed to women and
children. Feminism has struggled with the politics of multiculturalism, concerned, on the one hand, to recognise the significance of religious, cultural
and other differences, and, on the other hand, reluctant to yield to claims
that seek to privatise the pursuit of gender equality. The rifts of intercultural
difference are most keenly felt along the boundaries demarcating the public
from the private sphere.2 These boundaries, of course, are deeply gendered.
In recent years, liberal feminism has tended to dismiss multicultural politics
as bad for women3 or as an, excuse for bad behaviour. Dismissing multiculturalism as an oppositional force, however, denies the possibility of
arriving at just multicultural arrangementsarrangements that both define
the limits of reasonable pluralism and recognise the significance of religious
and cultural differences. This chapter examines attempts within feminism
to negotiate religious-cultural differences, highlighting potential strategies
1 For a recent discussion of these conflicting claims, see S Mullally, Gender, Culture and
Human Rights: Reclaiming Universalism (Oxford, Hart Publishing, 2006); L Volp, Feminism
Versus Multiculturalism (2001) 101 Colum L Rev 1181.
2 S Benhabib, Situating the Self: Gender, Community and Postmodernism in Contemporary
Ethics (Cambridge, Polity Press, 1992), p 83.
3 SM Okin, Is Multiculturalism Bad for Women? in J Cohen, J Howard and M
Nussbaum (eds), Is Multiculturalism Bad for Women? Susan Moller Okin with Respondents
(Princeton, Princeton University Press, 1999). For further discussions on the tensions that
arise between feminism and the politics of multiculturalism, see A Phillips, Which Equalities
Matter? (London, Polity Press, 1999); M Nussbaum, Sex and Social Justice (Oxford, Oxford
University Press, 1999); U Narayan, Dislocating Cultures: Identities, Traditions and Third
World Feminism (London, Routledge, 1997). A Phillips, Multiculturalism without Culture
(Princeton, Princeton University Press, 2007).
108 Siobhn Mullally

to move beyond the feminism/multiculturalism dichotomy. Such potential
can be seen, at an institutional level, in the strategies adopted by UN bodies such as the CEDAW Committee. At a normative level, the insights of
discourse ethics theorists offer the potential to devise strategies that respond
both to the concerns of difference feminisms and group rights advocates,
without compromising on the pursuit of gender equality.
CEDAW AND THE RESERVATIONS DIALOGUE
Within international human rights law, claims to religious and cultural difference have thwarted progress towards gender equality. These claims have
manifested themselves in extensive reservations to the UN Convention on
the Elimination of All Forms of Discrimination Against Women (CEDAW).
Given commitments to safeguard minority rights, to respect rights to religious freedom and to distinct cultural identities, UN human rights bodies encounter both normative and practical difficulties in responding to
conflicting claims. These difficulties are particularly evident in attempts
to respond to the reservations entered by states to CEDAW.
Progress towards the effective implementation of CEDAW has been
greatly hindered by the sweeping reservations entered by states. More then
90 per cent of the worlds states have ratified the Convention. This near
universal participation has been achieved, however, at a considerable cost.
More than half of the states parties to the Convention have entered reservations or declarations, limiting the scope of the Convention and also limiting
the mandate of the CEDAW committee.4 Many states have entered sweeping reservations to article 2, the core obligation of the Convention, making
it difficult to ascertain what obligations, if any, are being undertaken by
those states. Underpinning these reservations is a desire to limit the scope
of international law and to reclaim the specificity of gendered identities.
The shift towards a cosmopolitan order is disrupted and womens human
rights are proclaimed, yet again, as private, cultural, domestic affairs. It
is not just the number or scope of the reservations that poses a problem,
however. It is the justification given by states for opting out. States have
appealed to religious beliefs and practices, to the requirements of Islam,5
4 See generally, Statement on Reservations to the Convention on the Elimination of All

Forms of Discrimination Against Women, adopted by the Committee on the Elimination
of Discrimination Against Women, Report of the Committee on the Elimination of
Discrimination Against Women (18th and 19th Sessions), GAOR Supplement No 38 (UN Doc
A/53/38/Rev1), ch 1.
5 Reservations specifically invoking the Shariah include Bangladesh, Egypt, Iraq, Kuwait,
Libya, Malaysia, Maldives, Mauritania, Morocco, Saudia Arabia, Syrian Arab Republic,
United Arab Emirates. Many other states have entered reservations that do not specifically
invoke the Shariah but can be understood as appealing to the requirements of the Shariah
Gender Equality and Group Rights 109

to distinct constitutional traditions protecting the private sphere6 (as in the
United States) and to the need to respect the practices and beliefs of distinct
religious communities.7 Over the last decade, the rise of identity politics,
coupled with the discourse of post-coloniality and anti-imperialism, has
given added strength to the claims of reserving states. Assertions of religious-cultural difference appear as acts of resistance against the imperialising impulse of universalistic claims. From this perspective, the disruption
and fragmentation resulting from reservations to human rights treaties is
inevitable.8 As Iris Marion Young says, The totalizing movement always
leaves a remainder.9
The reservations dialogue poses a challenge to feminists, many of whom
have moved away from universalistic claims and urged scepticism about
the tools and methods of international human rights law. Rather than
expanding the scope of international human rights law, much of contemporary feminist theory urges a return to the local, arguing that universalistic
discourses deny the significance of religious, cultural and other differences
between women. At the same time, womens rights activists in many parts
of the world continue to appeal to the tools and principles of international
human rights law to support their claims. This gap between feminist theory
and practice signals a problem within feminism. Feminist theory has always
been closely allied to the practical struggle to achieve justice and equality
for women. The growing gap between feminist theory and the daily struggles of the womens movement is troubling. In the context of the reservations dialogue, engaging in a process of normative reconstruction requires
us to challenge the boundaries set by states and their right to opt out of
human rights treaties in the name of religious beliefs or cultural traditions.
More than legal regulation is needed, however, if such challenges are to be
successful. The orthodox solutions to treaty reservations, the blunt application of an object and purpose test and severability clauses, will do little to
to justify opting out. See eg, the reservations entered by Pakistan, Tunisia, Niger. The initial
reservations entered by Turkey to articles of the Convention concerning family relations (specifically Arts 15 and 16), were subsequently withdrawn in September 1999. The full text of
these reservations is available at www.un.org/womenwatch/daw/cedaw/reservations-country.
htm#N19
6 See Statements by Senator Jesse Helms, Senate Foreign Relations Committee. The United
States, under the Carter administration, signed CEDAW on 17 July 1980, but has not yet
ratified the Convention. The Senate Foreign Relations committee held hearings in 1994 and
2002 and voted favourably each time to send the treaty to the Senate floor. Since that time,
for various political reasons, the Senate has not voted on this treaty.
7 See eg the reservations entered by Singapore and India, available at www.un.org/womenwatch/daw/cedaw/reservations-country.htm#N19
8 J Flax, Thinking Fragments: Psychoanalysis, Feminism, and Postmodernism in the
Contemporary West (Berkeley, University of California Press, 1990), p 32.
9 IM Young, Impartiality and the Civic Public: Some Implications of Feminist Critiques of
Moral and Political Theory in S Benhabib and D Cornell (eds), Feminism as Critique: On the
Politics of Gender (Minneapolis, University of Minnesota Press, 1986), p 57.
110 Siobhn Mullally

contribute to a feminist process of reconstructing human rights law. Formal
legal tests to determine the permissibility of a reservation or the legal consequences of a finding of impermissibility leave the fundamental questions
unanswered, ie, what are the limits of reasonable pluralism and is it reasonable to opt out of human rights standards in the name of religion, culture
or tradition or domestic laws and customs?
On the fiftieth anniversary of the Universal Declaration of Human
Rights, CEDAW issued a statement highlighting the adverse impact of
reservations on international human rights law.10 The Committees statement highlights the threat that reservations pose to the entire human rights
regime, the limits such reservations place on the efficacy of international
human rights standards and the mandate of treaty monitoring bodies.
The CEDAW Committee has, in recent years, adopted a strong universalistic stance towards womens human rights, rejecting appeals to religiouscultural beliefs that seek to justify inequalities in domestic law and practice.
The UN Special Rapporteur on religious intolerance has also supported
this universalistic stance, holding that religious norms relating to the status
of women are dynamic and should not be put forward as a justification
for reservations to CEDAW or other treaties.11 This universalist stance is
mirrored in legal instruments such as the 1993 Vienna Declaration and
Programme of Action, the 1993 Declaration on the Elimination of Violence
Against Women12 and the Beijing Declaration and Platform for Action.13
The Vienna Declaration and Programme of Action states that the universal
10 See n 4 above. At its sixth meeting, CEDAW adopted General Recommendation No 4,

which expresses concern at the significant number of reservations that appeared to be incompatible with the object and purpose of the Convention. General Recommendation No 4,
Report of the Committee on the Elimination of Discrimination Against Women (Sixth Session)
42 GAOR Supp No 38, para 579 (UN Doc A/42/38 (1987)). CEDAW also requested the
United Nations to promote or undertake studies on the status of women under Islamic laws
and customs and in particular on the status and equality of women in the family taking into
consideration the principle of El Ijtihad in Islam. The request provoked considerable controversy at ECOSOCs next meeting and lead to further accusations of cultural imperialism and
religious intolerance. Bangladeshs delegate to ECOSOC urged the greatest caution in using
the Convention as a pretext for doctrinaire attacks on Islam. (These comments were made
following CEDAWs criticisms of Bangladeshs initial report under the Convention.) As a result
of this controversy, ECOSOC recommended in its Resolution 1987/3 to the General Assembly
that no further action be taken on CEDAWs request. See also General Recommendation
No 20 (11th session, 1992), Reservations to the Convention, GAOR Supp No 38 (UN Doc
A/47/38); General Recommendation No 21 (13th session, 1994), Equality in marriage and
family relations, GAOR 49th Session Supp No 38 (UN Doc A/49/38), paras 414.
11 See generally, UN Special Rapporteur on Religious Intolerance, Civil and Political
Rights, including Religious Intolerance (Report submitted by Abdelfattah Amor, Special
Rapporteur, in accordance with Commission on Human Rights Resolution 2000/33) (UN
Doc E/CN.4/2001/63, 13 February 2001), paras 1867 and 4736. See also UN Doc
E/CN.4/2002/73, paras 538.
12 Adopted 20 December 1993, GA Res 48/104 (UN Doc A/48/29).
13 Adopted 25 June 1993 (UN Doc A/CONF.157/23).

nature of these rights and freedoms is beyond question. The Declaration
continues:
While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of
States, regardless of their political, economic and cultural systems, to promote and
protect all human rights and fundamental freedoms.14
This commitment to the universality of human rights is reiterated in the

Beijing Platform for Action.15 The Political Declaration adopted as part of
the Beijing plus five review process, affirms the commitment to achieving
universal ratification of CEDAW. The Secretary-Generals Beijing plus ten
review calls for urgent efforts to achieve universal ratification of CEDAW
and withdrawal of reservations.16 The Political Declaration adopted at the
forty-ninth session of the UN Commission on the Status of Women, 2005,
marking the Beijing plus ten review process, does not restate any commitment to universal ratification of CEDAW, but notes simply that the Beijing
Declaration and Platform and the standards set by CEDAW are mutually reinforcing.17 Ensuring that the commitments made at Beijing were
safeguarded was a significant step in itself, reflecting the ongoing fragility
of international standards on womens human rights. Against this background, the problem of reservations to CEDAW persists.
CEDAW prohibits discrimination against women in all fields and
imposes a duty on states parties to eliminate discrimination by any person,
organisation or enterprise.18 Article 5 takes the prohibition on discrimination even further. States have a duty not only to repeal discriminatory
laws, but also to challenge patterns of behaviour that perpetuate gendered
stereotypes. Article 16 provides that women and men are to be treated as
equals in all matters concerning the legal regulation of marriage and family relations. There are and continue to be many omissions from the text
of the Convention, some of which have been overcome through the constructive interpretations applied by the CEDAW Committee. Taken together,
the text of the Convention and the jurisprudence of the Committee give
us an international instrument that is potentially very far-reaching indeed.
As gender equality is increasingly mainstreamed into the work of other
14 UN World Conference on Human Rights, Vienna Declaration and Programme of Action,

adopted 25 June 1993, Part 1, para 5.
15 Fourth World Conference on Women, Declaration and Platform for Action, 15 September
1995 (UN Doc A/CONF177/20, 1995), para 9.
16 Women 2000: Gender Equality, Development and Peace for the 21st Century, Report
of the Secretary-General on the review of the implementation of the Beijing Platform for
Action and the outcome documents of the special session of the General Assembly (UN Doc
E/CN.6/2005/2), para 403.
17 Commission on the Status of Women, 49th Session, 28 February11 March 2005 (UN
Doc E/CN.6/2005/L.1).
18 CEDAW, Art 2(e).
112 Siobhn Mullally

human rights treaty bodies, notably the Human Rights Committee,19 the
scope of international human rights law has greatly expanded, holding out
greater possibility for the transformation of domestic laws. Reservations,
however, seek to limit this transformative potential and the scope of international human rights standards. This transformative potential is limited,
in particular, by general reservations that seek to make a treaty obligation
subject to conformity with something outside of the treaty, such as religious
doctrine or domestic laws and customs. In such cases, states parties and the
monitoring bodies are essentially being asked to sign a blank cheque.20
There is likely to be ongoing disagreement as to the content of the proposed
alternative canon of interpretation, as where different adherents of the same
religious group disagree on the meaning or scope of a particular doctrine.
Where a general reservation appeals to domestic laws and customs, further
uncertainties are created as such laws and customs may vary over time.21
Reservations to Article 2 of CEDAW (the core norm of obligation) pose a
particularly acute problem for CEDAW.22 A number of states have specifically reserved on Article 2.23 Others states have entered reservations that
do not invoke any specific provision of CEDAW but are broad enough to
encompass Article 2.24 Saudi Arabia states that in case of contradiction
19 See ICCPR General Comment No 28, Equality of rights between men and women
(Art 3), 29 March 2000 (CCPR/C/21/Rev.1/Add.10).
20 See F Hampson, Reservations to Human Rights Treaties: Final Working Paper (SubCommission on the Promotion and Protection of Human Rights, 56th Session, E/CN.4/
Sub.2/2004/42, 19 July 2004), para 56.
21 Ibid.
22 See generally Statement on Reservations to the Convention on the Elimination of All
Forms of Discrimination Against Women, adopted by the Committee on the Elimination of
Discrimination Against Women, Report of the Committee on the Elimination of Discrimination
Against Women (Eighteenth and Nineteenth sessions) G.A.O.R. Supplement No.38 (A/53/38/
Rev.1) ch1, para 10.
23 See reservations entered by Algeria, Bangladesh, Bahamas, Democratic Peoples Republic
of Korea, Egypt, Iraq, Lesotho, Libya, Malaysia (subsequently withdrew reservation to Art
2(f)), Morocco (Interpretive Declaration), New Zealand (Cook Islands), Niger, Singapore,
Syrian Arab Republic, United Arab Emirates. The full text of reservations to CEDAW is
available at www.un.org/womenwatch/daw/cedaw/reservations-country.htm On ratification, Bangladesh entered a reservation stating: The Government of the Peoples Republic of
Bangladesh does not consider as binding upon itself the provisions of articles 2, 13(a) and
16(1)(c) and (f) as they conflict with Sharia law based on Holy Quran and Sunna. Objections
to these reservations were entered by Germany, Mexico, the Netherlands and Sweden. On 23
July 1997, the Government of Bangladesh notified the Secretary-General that it had decided
to withdraw the reservations made upon accession to Arts 13(a) and 16(f). The reservations
are in stark contrast to the closing statements made by the Prime Minister of Bangladesh, Ms
Khaled Zia, at the Fourth World Conference on Women in Beijing, 1995, where she reiterated her countrys commitment to the goals and objectives of the Nairobi Forward-looking
Strategies and affirmed that the teachings and tenets of Islam could contribute positively to the
realisation of equality, development and peace. Nowhere did she suggest that the teachings of
Islam were in tension with the Beijing Declaration and Platform for Action or CEDAW itself.
24 See reservations entered by Algeria, Bangladesh, Egypt, Iraq, Libya, Malaysia, Maldives,
Morocco, Pakistan, Saudia Arabia, Tunisia, Turkey.

between any term of the Convention and the norms of Islamic law, the
Kingdom is not under an obligation to observe the contradictory terms of
the Convention.25 Pakistans ratification of the Convention was accompanied by a declaration stating that accession was subject to the provisions
of its Constitution. General reservations such as these envisage an enduring inconsistency between state law and practice and the requirements of
the Convention. State sovereignty and the defence of domestic jurisdiction
reappears, this time in the guise of an unyielding assertion of difference.
The divisions between the public and the private that the Convention seeks
to overcome are reasserted. Reserving states adopt a Rawlsian strategy,
distinguishing between the public and domestic spheres. The distinctions
made are highly gendered, revealing a reluctance to apply the tests of justice
to those spheres most closely associated with womens daily strugglesthe
family and intimate relations within the domestic sphere.
The reassertion of a division between the public and the private can also
be seen in the reservations entered to Article 16 of CEDAW and the specificity that is claimed for family life. Article 16 of the Convention guarantees
the right to equality in all matters relating to marriage and family relations.
When finally adopted, Article 16 represented a significant breakthrough
in international human rights law. It brought family relations within the
scope of international law, making visible the human rights violations that
occur within the domestic sphere and naming them as such. The reservations entered by states parties to the Convention, however, have relegated
the domestic sphere, yet again, to the penumbra of human rights law. The
CEDAW Committee has noted with alarm the number of states that have
entered reservations to the whole or part of Article 16.26 Many have invoked
the requirements of religious law as a justification for opting out of the
requirements of equal treatment in marriage and family relations. Kuwait
has declared itself not bound by Article 16(f), in as much as it conflicts with
the provisions of the Shariah, Islam being the official religion of the state.27
25 A number of states have objected to Saudia Arabias general reservation, including

Denmark, Ireland, Norway, Sweden, Portugal, France, Germany, the Netherlands, Spain and
the United Kingdom. Saudia Arabia has entered a similar reservation to the Convention on
the Rights of the Child, with respect to all articles as are in conflict with the provisions of
Islamic law.
26 The following states have entered specific reservations to Art 16: Algeria, Bahamas,
Bangladesh, Egypt, France, India, Iraq, Ireland, Israel, Jordan, Kuwait, Lebanon, Libya,
Luxembourg, Malaysia (reservations to Art 16(b), (d), (e) and (h) withdrawn on 6 February
1998), Mauritius, Maldives, Malta, Morocco, Niger, Korea, Iraq, Syrian Arab Republic,
Switzerland, Thailand, Tunisia, Turkey, United Arab Emirates, United Kingdom. A number of
other states have entered general reservations that do not specifically refer to Art 16 but are broad
enough to include that article. See eg the reservations entered by Mauritania and Pakistan.
27 Kuwait has also entered the following reservations to the Convention: Article 7(a): The
Government of Kuwait enters a reservation regarding article 7(a), inasmuch as the provision
contained in that paragraph conflicts with the Kuwaiti Electoral Act, under which the right
114 Siobhn Mullally

Israel has reserved on the application of Article 16, to the extent that the
laws on personal status which are binding on the various religious communities in Israel do not conform with the provisions of that article.28 On ratifying CEDAW, India entered an interpretive declaration stating that it would
apply Articles 5 and 16 only to the extent that they conformed with its
policy of non-interference in the personal affairs of any Community without its initiative and consent.29 Along with Article 16, Article 9, concerning
womens equal rights to acquire, change or retain their nationality, is one of
the most heavily reserved provisions of CEDAW.30 Again, these reservations
reflect the extent to which gender identities have become intertwined with
states concerns to define and to delimit national identities.31
to be eligible for election and to vote is restricted to males. Article 9, paragraph 2: The
Government of Kuwait reserves its right not to implement the provision contained in article 9,
paragraph 2, of the Convention, inasmuch as it runs counter to the Kuwaiti Nationality Act,
which stipulates that a childs nationality shall be determined by that of his father. Kuwait
Interpretative Declaration regarding Art 2, para 2, and Art 3: Although the Government of
Kuwait endorses the worthy principles embodied in article 2, paragraph 2, and article 3 as
consistent with the provisions of the Kuwait Constitution in general and of its article 29 in
particular, it declares that the rights to which the articles refer must be exercised within the
limits set by Kuwaiti law.
On ratifying the Convention on the Rights of the Child, Kuwait entered the following general reservation: [Kuwait expresses] reservations on all provisions of the Convention that are
incompatible with the laws of Islamic Sharia and the local statutes in effect.
28 Israel has also entered a reservation to Art 7(b) of the Convention: concerning the
appointment of women to serve as judges of religious courts where this is prohibited by
the laws of any of the religious communities in Israel. Otherwise, the said article is fully
implemented in Israel, in view of the fact that women take a prominent part in all aspects of
public life.
29 The full text of the Declaration reads: (i) With regard to articles 5(a) and 16(1) of
the Convention on the Elimination of All Forms of Discrimination Against Women, the
Government of the Republic of India declares that it shall abide by and ensure these provisions
in conformity with its policy of non-interference in the personal affairs of any Community
without its initiative and consent. (ii) With regard to article 16(2) of the Convention on the
Elimination of All Forms of Discrimination Against Women, the Government of the Republic
of India declares that though in principle it fully supports the principle of compulsory registration of marriages, it is not practical in a vast country like India with its variety of customs,
religions and level of literacy.
See also Concluding Observations of the Committee on the Elimination of Discrimination
Against Women: India (01/02/2000, UN Doc A/55/38), paras 3090, at para 40. Unlike
other states parties to the UN Convention on the Rights of the Child, India has not entered
a reservation or declaration invoking religious-cultural claims. The declaration submitted on
ratification refers only to the question of child labour and the need for progressive reform in
this area.
30 See the reservations and declarations entered by Algeria, Bahamas, Democratic Peoples
Republic of Korea, Egypt, Iraq, Jordan, Kuwait, Lebanon, Malaysia, Morocco, Republic of
Korea, Saudia Arabia, Syrian Arab Republic, Tunisia, Turkey, United Arab Emirates, United
Kingdom.
31 For a broader discussion on the relevance of gender to nationality laws, see K Knop,
Relational Nationality: On Gender and Nationality in International Law in TA Aleinikoff
and D Klusmeyer (eds), Citizenship Today: Global Perspectives and Practices (Washington,
DC, Carnegie Endowment, 2001), p 89.

States have also entered reservations to provisions touching on the
domestic sphere in other human rights treaties, though not with any degree
of consistency.32 Algeria, for example, has entered an interpretive declaration to the provisions of Article 23, paragraph 4 of the International
Covenant on Civil and Political Rights (ICCPR), regarding the rights and
responsibilities of spouses as to marriage, during marriage and at its dissolution, stating that these provisions should in no way impair the essential
foundations of the Algerian legal system.33 Kuwait has entered an interpretative declaration regarding Articles 2(1) and 3 of the ICCPR, endorsing
the worthy principles embodied in both articles, but noting that the rights
contained therein must be exercised within the limits set by Kuwaiti law.
With regard to Article 23, Kuwait declares that in case of any conflict with
Kuwaiti law, national law will be applied. Other states entering reservations
to Article 23 include Kuwait; Mauritania and the United Kingdom. States
parties failure to comply with the requirements of Article 23 has been highlighted in recent years by the Human Rights Committee, reflecting a greater
integration of gender equality into the mainstream human rights treaties.34
The extensive reservations entered to the Convention on the Rights of the
Child (CRC) mirror those entered to CEDAW and reflect the reluctance of
states to apply human rights standards to the family or to acknowledge the
obligations arising from economic and social rights claims. 35
32 See the chart of reservations to human rights treaties produced at the 53rd Session of
the Sub Commission on the Promotion and Protection of Human Rights (UN Doc E/CN.4/
Sub.2/2002/34).
33 See Concluding Observations of the Human Rights Committee: Algeria (18/08/98,
CCPR/C/79/Add.95), para 13. Reservations to Art 23 have been entered by Algeria, Kuwait,
Mauritania and the United Kingdom. See also Kuwaits reservation to Art 25(b) of the ICCPR,
which seeks to restrict the Covenants right of citizens to vote and to be elected, making it
subject to provisions in Kuwaiti law that bar women from voting and standing for office and
severely limit the rights of naturalised citizens. The reservation asserts: The Government of
Kuwait wishes to formulate a reservation with regard to article 25(b). The provisions of this
paragraph conflict with the Kuwaiti electoral law, which restricts the right to stand and vote
in elections to males. It further declares that the provisions of the article shall not apply to
members of the armed forces or the police. The text of Art 25(b) explicitly prohibits restriction of the right to vote and to be elected on the basis of discrimination prohibited in Art 2
of the Covenant: Every citizen shall have the right and the opportunity, without any of the
distinctions mentioned in article 2 and without unreasonable restrictions: .... (b) To vote and
to be elected at genuine periodic elections which shall be by universal and equal suffrage and
shall be held by secret ballot, guaranteeing the free expression of the will of the electors.
34 See eg Concluding Observations of the Human Rights Committee: Mali (16/04/2003,
CCPR/CO/77/MLI), para 10; Concluding Observations of the Human Rights Committee:
Togo (1/11/2002, CCPR/CO/76/TGO28), para 21; Concluding Observations of the Human
Rights Committee: Guatemala (27/08/2001, CCPR/CO/72/GTM), para 24; Concluding
Observations of the Human Rights Committee: Syrian Arab Republic (24/04/2001, CCPR/
CO/71/SYR), para 20. See also ICCPR General Comment No 19, Protection of the family,
the right to marriage and equality of the spouses (Art 23), 27 July 1990.
35 As with CEDAW, the issue of reproductive rights and the right to have access to safe abortions remains disputed. The ninth preambular paragraph of the CRC refers to the childs right
to legal protection before as well as after birth, reiterating the third preambular paragraph to
116 Siobhn Mullally

In these reservations and declarations, we see a decision by states to
accord priority to the laws and practices of religious communities, regardless of their compatibility with international human rights standards on
gender equality. Individuals are defined first and foremost as group members, with duties and obligations qua members of a group or community. As
in Rawlss Law of Peoples,36 there is a reluctance to challenge the claims of
communities or to limit their demands in the name of safeguarding equality. We also see an essentialising of difference in these claims. The personal
laws of religious communities are presumed to form a coherent, static,
unified body of rules. Any scrutiny in the name of safeguarding individual
rights and guarding against the imposition of internal restrictions (to borrow Kymlickas term)37 is denied. So also is the possibility of difference or
dissent within communities. There is no room for the recognition of more
egalitarian interpretations of religious norms and no requirement of a right
of exit for those with dissenting views. The limits of ones rights are defined
by ones religious-cultural membership.
Reserving states deny difference in other ways. In the reservations
entered by Egypt, Algeria and Morrocco to CEDAW, we see an attempt to
retain a strict binary division between male and female and a reluctance
to blur these categories. In a declaration entered to Article 2 of CEDAW,
Morocco expresses its readiness to comply with the provisions of this article, provided that they do not conflict with the Morrocan Personal Code,
which, it states, derives primarily from the Shariah and accords women
human rights that differ from men, so as to strike a balance between the
spouses, and, to preserve the coherence of family life.38 At the time of
drafting the Convention, Morrocco expressed similar concerns, arguing
that to guarantee equal rights for women and men in marriage and family relations would affect the psychic and moral balance of children.39
Egypts reservation to Article 16 of CEDAW states that the Islamic Shariah
accords women rights that are, equivalent to those of their spouses so as to
the Declaration on the Rights of the Child. The Working Group on the Convention included
an interpretive statement in the travaux preparatoires, to the effect that the ninth preambular
paragraph did not have any bearing on the definition of the child as a human being in Art 1 of
the Convention. It also rejected a draft savings clause providing that nothing in the Convention
should affect any provisions more conducive to the rights of the child before as well as after
birth. The definition of a child continues to remain controversial. See eg Reservations and
Declarations entered by Argentina, Ecuador, Guatemala, the Holy See, available at www.
unhchr.ch/html/menu3/b/treaty15_asp.htm
36
J Rawls, The Law of Peoples (Cambridge, MA, Harvard University Press, 1999).
See W Kymlicka, Multicultural Citizenship: a Liberal Theory of Minority Rights (Oxford,
Clarendon Press, 1995), esp ch 4.
38 For the full text of the reservation see UN Treaty Collection and n 5 above.
39 See generally, N Burrows, The 1979 Convention on the Elimination of All Forms of
Discrimination Against Women (1985) 419 Netherlands International Law Review 450. See
also L Rehof, Guide to the Travaux Preparatoires of the United Nations Convention on the
Elimination of All Forms of Discrimination Against Women (London, Martinus Nijhoff, 1993).
37

ensure a just balance between them.40 Underpinning these reservations is
an appeal to the ideology of separate spheres,41 and an attempt to essentialise the binary divisions between male and female. Similar appeals have
been made by the Holy See. In its reservation to the Beijing Declaration
and Platform for Action, the Holy See invokes Pope John Paul IIs Letter
to Women, which emphasises the complementarity of gender roles and the
specificity of being male and female.42 Preserving this specificity is necessary, the Holy See argues, to ensure the wellbeing and the true advancement of women.43 A concern to maintain strict binary divisions between
male and female is also evident in the definition of gender included in the
Rome Statute of the International Criminal Court at the behest of the Holy
See and other states.44 The current Pope, Benedicte XVI, previously served
as prefect of the Congregation for the Doctrine of the Faith and is widely
credited with reinforcing conservative views on gender and sexuality
throughout the teachings of the Roman Catholic Church and the politics
of the Holy See within the United Nations.
In carrying out its monitoring role, the CEDAW Committee has adopted
an increasingly universalistic stance, challenging religious-cultural claims
made by states. It has highlighted the political nature of appeals to Islam
made by reserving states and the possibility of more egalitarian interpretations of Islam, giving support to subaltern voices within reserving states.
This universalistic stance can also be seen in the Committees General
Recommendation No 21, adopted in response to the number of reservations to Article 16. The Recommendation affirms the status of Article 16 as
40 See n 2 above. See also the reservation entered by Iraq to Art 2, which provides: Approval
of and accession to this Convention shall not mean that the Republic of Iraq is bound by the
provisions of article 2, paragraphs (f) and (g), of article 9, paragraphs 1 and 2, nor of article 16
of the Convention. The reservation to this last-mentioned article shall be without prejudice to
the provisions of the Islamic Shariah according women rights equivalent to the rights of their
spouses so as to ensure a just balance between them. Iraq also enters a reservation to article
29, paragraph 1, of this Convention with regard to the principle of international arbitration in
connection with the interpretation or application of this Convention. See objections entered
by Germany, Israel, Mexico, the Netherlands, Sweden.
41 One of the most well-known expressions of the separate spheres ideology is to be found
in Justice Bradleys concurring opinion in the US Supreme Court decision, Bradwell v Illinois,
83 US 130, 141 (1873): Civil law as well as nature herself, has always recognised a wide difference in the respective spheres and destinies of man and woman, and again, the paramount
destiny and mission of woman are to fulfil the noble and benign offices of wife and mother.
42 In its written statement on the Declaration and Platform for Action, the Holy See also
refers to the wellbeing of women and the true advancement of women. Beijing Declaration
and Platform for Action, adopted on 15 September 1995 (UN Doc A/CONF.177/20 (1995)
and UN Doc A/CONF.177/20/Add 1 (1995)), p 157, Reservations and statements of interpretation, para 11.
43 Ibid.
44 See Rome Statute for an International Criminal Court, Art 7(3): For the purpose of this
Statute, it is understood that the term gender refers to the two sexes, male and female, within the
context of society. The term gender does not indicate any meaning different from the above.
118 Siobhn Mullally

a core principle of CEDAW and calls on states to resolutely discourage any
notions of gender inequality that are rooted in private law or custom, and
to gradually progress to a stage where reservations will be withdrawn.45
Rejecting fundamentalist or other extremist views that encourage a return
to old values and traditions, the Committee concluded that reservations
to Article 16, whether lodged for traditional, religious or cultural reasons,
were incompatible with the Convention and therefore impermissible.46
NEGOTIATING COMPLEX DIALOGUES
The negotiation of complex cultural dialogues in a global civilisation is

now our lot.47 So concludes Seyla Benhabib. Reservations to CEDAW raise
all the difficulties of such a complex dialogue. For feminism, they raise the
question of how to negotiate cultural claims, claims to group differentiated
citizenship or to differences that seek to deny the universal legitimacy of
human rights norms. Yielding to the reservations entered by states returns
us to a state-centred conception of international law, leading to conflicts
with the universalistic claims of human rights norms. It also leaves women
within reserving states vulnerable to the claims of particular communities.
While states claim a right to opt out, women within reserving states may
not have any such right of exit.
International human rights law has expanded to reach domains previously labelled as private, and solely within the domestic jurisdiction of the
state. This expansion, however, has met with assertions of state sovereignty
and has come into conflict with claims to self-determination and the sovereign equality of all states. The reservations dialogue surrounding CEDAW
highlights the willingness of states to hide behind the rhetoric of a politics
of recognition and to invoke religious-cultural differences so as to limit and
constrain the pursuit of gender equality. As consciousness of international
human rights standards develops worldwide, particularistic identities rooted
in religion, ethnicity or nationhood are asserted with increasing ferocity.
Gender identities become intertwined with national identities, leading to a
kind of trafficking in women. We see this in the reservations dialogue surrounding CEDAW. States sign up to and ratify the Convention, but assert
their distinct claims to difference by privatising womens human rights
claims that threaten to redefine the boundaries of public and private, and/or
of nationhood. Reserving states frequently invoke a singular ethnos to
45
See n 10 above.
See CEDAW General Recommendation 21 above n 10, para 17.
47 S Benhabib, The Claims of Culture: Equality and Diversity in the Global Era (Princeton,
Princeton University Press, 2002). The application of Benhabibs dual-track approach to
conflicting rights claims is discussed in greater detail in Mullally, n 1 above.
46

support their claims to a distinct national identity. The rise of identity politics and the discourse of post-coloniality gives support to such claims, particularly when entered by newly independent states. However, identity politics
also leads to fragmentation within collectivities. Every nationalist movement
has within itself a marginalised other. Appeals to a singular ethnos become
more difficult to sustain once we recognise the conflicting claims that arise
within communities.
Legal regulation, in itself, does not capture the need for an enlarged
mentalitywhat Benhabib refers to as the broadening of our horizons,
through political and moral struggle. While legal regulation may provide us
with a modus vivendi between states, it is unlikely to lead to an acceptance
and effective enforcement of human rights norms at national level. A dualtrack approach to cultural conflicts draws on deliberative models of democracy and takes us beyond the limits of legal regulation, introducing the idea
of an expanded moral-political dialogue taking place at international,
national and local levels. The limits of law are highlighted in Koen De
Feyters essay in this volume, which highlights the need for an integrated,
holistic approach to cultural conflicts, recognising the importance of process and ongoing dialogic structures.48 We see the beginnings of such a dialogue in the CEDAW Committees constructive engagement with reserving
states. In commenting on Egypts reports submitted under CEDAW, the
Committee calls on Egypt to withdraw its reservations to Articles 2, 9(2)
and 16, and specifically acknowledges the efforts of the Egyptian National
Council for Women in also seeking a withdrawal.49 The appeal to the
local, though rooted in international standards, gives added support to
this call and recognises the importance of a cultural mediation of human
rights norms. It also seeks to begin a process of dialogue at national level,
drawing on the expanded scope of international human rights standards
to support this process. We see a similar attempt at constructive engagement with Libya. In its comments on Libyas initial report, the Committee
called on Libya to withdraw its general reservation to the Convention, to
take a leading role in its interpretation of the Shariah and to review its
interpretation of the Quran in the light of the Conventions prohibition of
discrimination.50 In the Committees view, the evolution of the Shariah in
Libya had come to a standstill. The Committee called on Libya to proceed
to an interpretation of the Shariah that was permissible and that did not
block the advancement of women.51 The possibility of more egalitarian
48
See K De Feyter, Chapter 1.

Concluding Observations of the Committee on the Elimination of Discrimination Against
Women: Egypt (02/02/2001, UN Doc A/56/38), paras 31258, para 326.
50 Concluding Observations of the Committee on the Elimination of Discrimination Against
Women: Libyan Arab Jamahiriya (12/4/94, UN Doc A/49/38), paras 12685.
51 Ibid para 132.
49
120 Siobhn Mullally

interpretations of Islam is recognised and the attempt by the state to block
the transformation of domestic law is denied. Again we see the Committee
attempting to open up a process of dialogue around domestic laws and,
in particular, around the requirements of the Shariah. The possibility of
transformation, of course, requires an openness to change on the part of
the state and an equality of participation in the processes of change and
reform. This is where the limits laid down by human rights principles
come into play.
Cosmopolitanism and the dual-track approach have implications for
how we create just multicultural arrangements within states. Feminism
has struggled with the politics of multiculturalism, concerned, on the one
hand, to recognise the significance of religious, cultural and other differences, and, on the other hand, reluctant to yield to claims that seek to
privatise the pursuit of gender equality. As we saw with Rawlsian political
liberalism, the accommodation of religious differences risks subordinating gender equality to communal claims. Discourse ethics attempts to
create what Habermas has described as difference-sensitive models of
inclusionmodels of inclusion that draw on a commitment to universal
norms, while at the same time recognising the importance of religious, cultural and other differences. In The Claims of Culture,52 Benhabib explores
the feminismmulticulturalism debate, focusing, in particular, on multicultural disputes that touch on the roles and status ascribed to women and
children. These disputes reveal the gendered divisions between the public
and the private that continue to surface in the assertion of cultural claims.
Cultural differences are accommodated by reinforcing traditional liberal
divisions between the public and the private. As Benhabib points out, the
rifts of intercultural difference are most deeply felt along the boundaries
demarcating the public from the private sphere.53 In place of this defensive liberalism,54 the dual-track approach is intended to do justice both
to womens aspirations for equality and freedom and to the legitimate
plurality of human cultures. The core moral principles of equal moral
respect and egalitarian reciprocity define the limits of reasonable pluralism
and provide the parameters within which just multicultural arrangements
can develop. Building on these core moral principles, Benhabib sets out
three key tests that any multicultural arrangement must satisfy. These are:
(a) egalitarian reciprocity; (b) voluntary self-ascription; (c) freedom of exit
and association.55 The first, egalitarian reciprocity, requires that members of minority communities should not be granted lesser civil, political,
economic and cultural rights simply because of their membership status.
52
53
54
55
Benhabib, n 47 above.
Benhabib, n 2 above, p 83.
See Benhabib, n 47 above, p 101.
Ibid p 130.

Any other arrangement serves only to shield inequalities within groups,
yielding to patriarchal claims and the demands of cultural conservatives.
The second requirement, voluntary self-ascription, recognises the importance of individual autonomy. An individuals group membership must
permit the most extensive form of self-ascription and self-identification
to ensure the priority of individual autonomy. Self-ascription may often
be contested, leading potentially to a denial of ones right to membership
(as in the Sandra Lovelace case in Canada),56 or conversely to a denial of
ones right to opt out (as in the application of Muslim Personal Law to
Muslim women in India, who had sought the enforcement of the general
provisions of the Criminal Procedure Code, regardless of their religious
affiliation). This leads to Benhabibs third and final requirement, that
of freedom of exit and association. Again, the protection of individual
autonomy requires recognition of the right to exit and to disassociate from
the group. Of course, exit may bring with it a loss of certain privileges.
Such loss, however, may be subject to legal regulation and, in particular,
to the requirement of non-discrimination. Without such regulation, we
end up with the kind of discrimination evident in cases such as Santa
Clara Pueblo v Martinez,57 where a Santa Clara court upheld an ordinance granting member status to the children of men marrying outside
of the Pueblo, while excluding the children of women who did so.58 The
extent to which the politics of multiculturalism may lead to a trafficking
in women was evident in the Sandra Lovelace case before the UN Human
Rights Committee.
On marrying a non-Indian, Sandra Lovelace ceased to be a member of
the Tobique Band, and by the application of the Indian Act 1970, she also
lost her status as a Maliseet Indian.59 This loss of status led to a denial of
56 An example of such a denial can be seen in Lovelace v Canada, Communication No

24/1977, GAOR 36th Session, Supp No 40 (UN Doc A/36/40 (1981)), p 166 (merits). For
analyses of the UN Human Rights Committees decision, see K Knop, Diversity and SelfDetermination in International Law (Cambridge, Cambridge University Press, 2002), p 358.
57 98 US 1670 (1978). This ruling upheld a Santa Clara ordinance granting member status
to the children of men who married outside of the tribe while excluding the children of women
who did so. The children of Julia Martinez, a Pueblo woman who married a Navajo man, were
prevented from gaining title to her Pueblo-administered public housing.
58 The enactment of the Muslim Women (Protection on Divorce) Act in India, in response to
the Shah Bano judgment which allowed Muslim women to seek the protection of general laws
(rather than those applicable only to the Muslim community), can be seen as another example.
59 Indian Act, RSC 1970 c I6, s 12(1)(b). Section 12(1)(b) reads as follows: 12(1) The
following persons are not entitled to be registered [as Indians], namely ... (b) a woman who
has married a person who is not an Indian. In Canada AG v Lavell [1974] SCR 1349, the
Canadian Supreme Court found that s 12(1)(b) did not violate the equality guarantee set out
in the Canadian Bill of Rights. In a dissenting judgment, Justice Laskin described the impact of
the Act as statutory banishment (ibid para 1386). The Attorney Generals position was supported by the majority of indigenous organisations. The Lavell judgment led to the formation
of the Native Womens Association of Canada. See K Knop, n 56 above, p 365.
122 Siobhn Mullally

her right to live on a reserve and to access federal assistance programmes
that were restricted to those with Indian status. No such consequences followed on the marriage of an Indian man to a non-Indian woman. Lovelace
petitioned the UN Human Rights Committee, challenging Canadas compliance with the ICCPR, arguing that the Indian Act denied both her right
to equality before the law (Article 26) and her right to partake of her
culture in community with others (Article 27). However, because she had
lost her Indian status before the ICCPR and First Optional Protocol came
into effect in Canada on 19 August 1976, the Human Rights Committee
declined to consider whether the Covenants guarantees of non-discrimination on grounds of sex had been violated.60 The Committees reasoning turned, instead, on the scope of Article 27 of the Covenant and the
continuing denial of Lovelaces right to enjoy her culture in community
with others. In her submissions to the Committee, Lovelace challenged the
Canadian governments claim to have followed patrilineal Indian traditions
in legislating for Indian status.61 Although the Canadian governments
position was supported by the majority of indigenous organisations in
Canada, Lovelace argued that Maliseet society was, in fact, matrilineal.
The matrilineal nature of Maliseet society, however, had been distorted
and forgotten through the experience of colonialism. As Knop argues, the
Indian Act legislated not indigenous custom, but European patriarchy.62
Lovelaces arguments combined an insider methodology, appealing to the
possibilities of resistance within Maliseet traditions, with an appeal to the
international norm of non-discrimination protected by the ICCPR. The
Committee concluded that Lovelaces rights under Article 27 were violated
by the Indian Act. In arriving at this conclusion they emphasised Lovelaces
cultural attachment to the Maliseet band. Ultimately, the Committee held
that the rights of persons belonging to minorities, as protected under
Article 27 of the ICCPR, must be interpreted in the light of other provisions, including the right to equality between women and men as protected
60 See See Lovelace v Canada above n 56 para 18. In her communication, Lovelace claimed
to be a victim of a violation of the rights guaranteed in Arts 2(1), 3, 23(1) and (4), 26 and 27
of the ICCPR. On the alleged violation of Art 23, the Committee held that the rights aimed at
protecting family life and children were only indirectly at stake and, therefore, there was no
need to consider the arguments concerning Art 23. In her analysis of the Lovelace case, Anne
Bayefsky argues that this finding was mistaken. The Committee, she says, should have focused
on the continuing effect of the discriminatory legislation and avoided the temporal difficulties.
See A Bayefsky, The Human Rights Committee and the Case of Sandra Lovelace (1982) 20
Canadian Yearbook of International Law 244.
61 Lovelace v Canada, Communication No 24/1977, GAOR 36th Session, Supp No 40
(UN Doc A/36/40 (1981)), p 166 (merits), p 167. For a discussion of the Lovelace case in the
context of self-determination, see Knop, n 56 above, pp 35872.
62 Ibid p 364. See also Knop, n 31 above, discussing a similar argument made with regard
to the Shuswap Nation in British Columbia in the case of RL v Canada, Communication No
359/1989, GAOR 47th Session, Supp No 40 (UN Doc A/47/40 (1994)), pp 3589.

by Articles 2, 3 and 26 of the ICCPR.63 The denial of Lovelaces status was
not reasonably or objectively justifiable and was not, in the Committees
view, necessary to protect the continued viability and welfare of the minority community as a whole. If it were necessary, it is not clear from the
Committees findings whether the discriminatory element of the Act would
still have been fatal. Given the absolute nature of the restriction imposed it
is unlikely to have survived the reasonableness test.64 The Human Rights
Committees discussion of minority rights highlights an important gender
dimension that is often ignored by advocates of multiculturalism, that is,
that Lovelaces right to cultural membership and to enjoy her culture in
community with others was denied by the application of discriminatory
laws. Lovelaces self-determination, her definition of her minority self, to
borrow Knops term, was denied by the codification of a patrilineal tradition in federal legislation.
The case of Leyla Sahin65 also raises questions concerning the intersection of gender equality, religious freedom and cultural identity. In 1998,
Leyla Sahin, a medical student, was dismissed from a state university in
Istanbul, because she was wearing a hijab (Islamic headscarf) on campus,
in contravention of University regulations. The European Court of Human
Rights, in its final Grand Chamber Judgment of 10 November 2005,
denied Leyla Sahins claim that her right to religious freedom had been
63 Lovelace v Canada, Communication No 24/1977, GAOR 36th Session, Supp No 40 (UN

Doc A/36/40 (1981)), p 166 (merits), paras 1617. For information on Canadas response
to the views of the Human Rights Committee, see Lovelace v Canada, Communication No
24/1977, 6 June 1983 (UN Doc Supp No 40, A/38/40 (1983)), p 249 (information from
Canada on measures taken). Following on from the decision of the Human Rights Committee,
Bill C-31 was enacted in 1985, amending the Indian Act, so as to bring it into conformity
both with the ICCPR and the Canadian Charter of Fundamental Rights and Freedoms. See
Department of Indian Affairs, The Elimination of Sex Discrimination from the Indian Act
(Ottawa, Department of Indian Affairs 1982), pp v, 21. For a discussion of the issues related
to Bill C-31 from the perspective of reinstated women, see The Tobique Womens Group and
J Silman (eds), Enough is Enough: Aboriginal Women Speak Out (Toronto, Womens Press,
1988). Canadas response to the views of the Human Rights Committee reflects a concern
both to maintain a sense of belonging amongst aboriginal peoples of Canada and to eliminate
sex discrimination. Bill C-31 not only brought the Indian Act into conformity with the guarantees of sex equality in the Canadian Charter of Fundamental Rights and Freedoms, it also
introduced measures to increase the autonomy of Indian bands. Part IV of the Constitution
Act, 1982, entitled Constitutional Conference, requires Canada to convene a constitutional
conference on matters affecting native peoples, thus ensuring the participation of affected
groups in the process of reform. See generally, Department of Indian Affairs and Northern
Development, The Impacts of the 1985 Amendments to the Indian Act (Bill C-31) (Canada,
Ottowa, 1990); www.abo-peoples.org/programs/c-31.html
64 In Kitok v Sweden, Communication No 197/1985, GAOR 43rd Session, Supp No 40
(UN Doc A/43/40 (1988)), p 221, the Human Rights Committee upheld a restriction on the
right to reindeer-herding for the Sami population of Sweden. The restriction was found necessary to protect scarce resources and did not lead to a denial of Sami status.
65 Leyla Sahin v Turkey, Application no 44774/98, Judgment, 10 November 2005.
124 Siobhn Mullally

violated by the Turkish authorities refusal to allow her to wear the hijab
while attending a state university. The Courts rationale concedes that prohibiting the wearing of the hijab constitutes interference with the human
right to freedom of religion, in this case interference with Leyla Sahins
right to manifest her religion in public by observing what she perceived
as an Islamic dress standard. But interference is not always and not necessarily a violation. The European Convention of Human Rights (ECHR)
permits states to impose restrictions on the manifestation of religion if the
following requirements are met: the restriction is prescribed by law; the
restriction is imposed by the state in pursuit of one or more public interest
grounds, ie public safety, protection of public order, health or morals, or
protection of the rights and freedoms of others; and the restriction is necessary in a democratic society, ie it constitutes a proportionate response
to a pressing social need.
In the case of Leyla Sahin v Turkey, a majority of 16 out of 17 Grand
Chamber judges, found that a governmental ban in Turkey against wearing the headscarf was a necessary and proportionate response to a pressing
social need. In arriving at its conclusion, the Court appealed to the doctrine
of a margin of appreciation and found that the states interference was
justified in principle and proportionate to the aim pursued (para 122).
The single dissenting judge, Franoise Tukens, rejected the appeal to the
margin of appreciation doctrine, noting that no other member state of the
Council of Europe had prohibited the wearing of the headscarf by Muslim
students at University level. The majoritys reasoning, in her view, abdicated
responsibility for the protection of human rights (dissenting opinion, para
3). In her view, the majority judgment applied the principles of secularism
and equality so as to restrict freedom. In contrast, she argued that the principles of secularism, equality and freedom ought to be harmonised and not
applied in conflict. This possibility remained despite threats from extremist movements, which she concluded could not be a reason to restrict the
wearing of the headscarf: Merely wearing the headscarf cannot be associated with fundamentalism and it is vital to distinguish between those who
wear the headscarf and extremists who seek to impose the headscarf as
they do other religious symbols (dissenting opinion, para 10).
The failure to harmonise the principles of secularism, equality and
freedom, in this case, reflects a reluctance to engage with religious difference, and a denial of Leyla Sahins claim to a distinct cultural identity. The
case raises challenging questions for feminist movements, presenting an
apparent conflict between equality and autonomy. The denial of individual
autonomy by the state and ultimately by the European Court represents
an appeal to perfectionism, an appeal that, applying Benhabibs test for a
just multicultural arrangement, goes beyond the limits of permissible regulation. The state in this case,as in the Lovelace case, denies the applicant the
possibility of individual self-determination.

CONCLUDING REMARKS
Benhabibs key principles, of course, cannot accommodate communitarian claims that deny the priority of individual autonomy. Her dual-track
model is, therefore, open to the kinds of criticisms that are targeted at Will
Kymlickas model of multicultural citizenship, that is, it fails to cast off the
traditions of liberal democratic societies.66 However, denying the priority
of individual autonomy leaves women vulnerable to the unending claims
of family, community, nation. As Benhabib and Cornell have pointed out,
situated females often find it impossible to recognise their true selves amidst
the constitutive roles that attach to their person.67 The principles outlined
by Benhabib are designed to avoid the so-called paradox of multicultural
vulnerability, where women become the bearers of culture, the repository
of traditions.68 All too often, multicultural arrangements lead to a kind of
traffic in women, where the men of majority and minority communities
signal their respect for difference by shielding the patriarchal claims of the
other. The requirements imposed by the dual-track model deny the legitimacy of such trafficking. Legal regulation or the assertion of universal
norms is unlikely, however, to overcome the tensions between feminism
and multicultural politics. Susan Okin has famously concluded that multiculturalism is bad for women. Drawing on her roots in Rawlsian liberalism, she rejects appeals to the significance of cultural differences, arguing
that many of the worlds traditions or cultures are quite distinctively
patriarchal.69 She refuses to yield to assertions of cultural difference or to
sacrifice her commitment to liberal political principles. Okins dismissal of
multicultural politics has attracted heated responses. The problem is not in
her refusal to yield, per se, but rather in her failure to engage with cultural
claims. She seems to presume that non-Western (non-liberal) cultures exist
in a time warp, with no local traditions of protest, no indigenous feminist
66 See generally, M Malik, Communal Goods as Human Rights in C Gearty and A Tomkins
(eds), Understanding Human Rights (London, Mansell, 1996), p 138; C Joppke and S Lukes,
Multicultural Questions (Oxford, Oxford University Press, 1999). As a liberal, Kymlicka is
committed to the overriding priority of individual autonomy within any multicultural arrangement. He seeks to contain the politics of difference within the constraints of liberal justice.
See W Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship
(Oxford, Oxford University Press, 2001), p 44. For him, the aim of group-specific rights is to
promote equality as between groups. Group members must be free, however, to question and
reject ascribed identities. It is this commitment to individual autonomy, to a freedom to opt in
or out of cultural membership, that leads to disagreement.
67 S Benhabib and D Cornell (eds), Feminism as Critique: On the Politics of Gender
(Minneapolis, University of Minnesota Press, 1986), p 12.
68 A Shachar, The Puzzle of Interlocking Power Hierarchies: Sharing the Pieces of
Jurisdictional Authority (2000) 35 Harvard Civil RightsCivil Liberties Law Review 387.
See also A Shachar, Multicultural Jurisdictions: Cultural Differences and Womens Rights
(Cambridge, Cambridge University Press, 2001).
69 Okin, n 3 above, p 14.
126 Siobhn Mullally

movements, no sources of political or cultural contestation. As Homi K
Bhabha points out, her monolithic distinction between the West (liberal)
and the Rest, seems to consign the South to a kind of premodern customary
society devoid of the complex problems of late modernity.70 Okin fails to
engage with the exotic other female.71 Her gaze is cast from a point that
is resolutely from above and elsewhere. Okins views have been dismissed
as reflecting those of western patriarchal feminism, a feminism that is
burdened with immigrant problems and the human rights conflicts which
they engender.72 Her feminism fails to recognise the need for dialogue,
contestation and ongoing negotiation. This dismissal of cultural claims does
little to support feminist movements that cannot claim the support of a
liberal-democratic state. In Okins writings, Third World and minority
women appear only as passive victims of violence and persecution. In her
dismissal of multiculturalism, there is, yet again, an essentialising of difference. Diane Otto points out that this essentialising of difference recurs
throughout the theory and practice of human rights, with familiar gender
tropes (of women as mother, wife and victim) underpinning the construction of the subject of human rights law.73 She argues that we need to understand gender identities as the hybrid result of choices and desires. She also
recognises, however, that appeals to hybridity risk erasing the very core of
female subjectivity that makes agency possible and that defines the limits
within which reinvention takes place.
The dual-track approach proposed by Benhabibs discourse ethics attempts to overcome the essentialising tendencies of Okins liberalism, while
at the same town providing for the possibility of a hybridity of gender identities. It does so by insisting on the importance of public contestation, negotiation and an ongoing moral conversation. The emphasis on dialogue and
negotiation allows feminist movements to combine insider methodologies
that renegotiate religious-cultural traditions from within, with a universalist
normative framework that legitimises the pursuit of gender equality. This
approach avoids the balkanisation effect of multicultural politics and goes
beyond creating a modus vivendi between diverse communities. As such,
it takes us beyond liberal models of multicultural accommodation such
as that proposed by Will Kymlicka. For Kymlicka, the role of a multicultural arrangement is to accommodate a societal culture within a liberal
70 HK Bhabha, Liberalisms Sacred Cow in J Cohen, J Howard, and M Nussbaum (eds),
Is Multiculturalism Bad for Women: Susan Moller Okin with Respondents (Princeton, NJ,
Princeton University Press, 1999), pp 7984.
71 K Engle, Female Subjects of Public International Law: Human Rights and the Exotic
Other Female (1992) 26 New England Law Review 1509.
72 A Al-Hibri, Is Western Patriarchal Feminism Good for Third World/Minority Women?
in Cohen, Howard and Nussbaum, n 3 above, p 41.
73 D Otto, Disconcerting Masculinities: Reinventing the Subject of International Human
Rights in D Buss and A Manji (eds), International Law: Modern Feminist Perspectives
(Oxford, Hart Publishing, 2005).

democratic state, and to define the limits of reasonable pluralism with reference to prevailing liberal norms. This may include recognising group rights
to autonomy or self-government and allowing for group differentiated
citizenship. However, while Kymlickas proposals allow for the creation of
a modus vivendi between diverse cultural groups, they do little to create a
sense of belonging for minority groups, or to promote greater intercultural
understanding between groups. Ultimately, such a modus vivendi leads to
the creation of multicultural enclaves. This so-called balkanisation effect
of group rights contributes to the isolation of women within minority
groups, reinforcing gendered divisions between the public and the private
and doing little to reconcile the conflicting claims of feminism and multiculturalism. Kymlicka also takes culture as a given, failing to recognise the
significance of subaltern voices or strands of resistance within groups. His
concept of a societal culture suggests a coherent unified set of norms and
practices that define a way of life, across the full range of human activities. But, as Benhabib points out, there are no such societal cultures. There
is no single organising principle that encompasses both public and private
spheres for distinct cultural groups. Any human society, at any given point
in time, is composed of multiple material and symbolic practices, each
reflecting different histories of struggle. Kymlickas discussion of societal
cultures commits the logical error of pars pro toto (substituting the part for
the whole), thereby contributing to a politics of recognition that takes cultures as organic unified entities. Kymlicka values societal cultures, because
they give people access to a range of meaningful options. However, some
cultures do not provide their members with a range of options, and do not
permit their members to revise their conceptions of the good. In such cases,
it is unclear what we are supposed to make of the relationship between
cultural membership and the realisation of individual freedom, or what
the precise value of societal cultures is. In contrast, the dual-track model
proposed by Benhabib clearly values requirements of justice and equality
ahead of culture as such.
The dual-track approach proposed by Benhabib offers us a way of creating space for differences, within the limits of a just multicultural state and a
cosmopolitan world order. Rather than appealing to the exclusiveness of a
single ethnos, discourse ethics appeals instead to communities of planetary
interdependence and to the moral ideals of humanity and international solidarity.74 This appeal to humanity is not an appeal to a common essence or to
some intrinsic nature. Rather, it is an appeal to a regulative ideal that defines
a vision of human solidarity and community. It is this vision that underpins
the dual-track approach and Benhabibs discussion of cultural claims.
74 S Benhabib, Cultural Complexity, Moral Interdependence, and the Global Dialogical
Community in M Nussbaum and J Glover (eds), Women, Culture and Development (Oxford,
Clarendon Press, 1995), pp 23555.
128 Siobhn Mullally

As we see in Susan Okins writings, feminism and the politics of multiculturalism have become increasingly polarised. This polarisation does
little to assist women struggling for greater equality within diverse cultural
communities. Rather than the kind of oppositional stance that we see in
Okins work, a dual-track approach points to the need to engage in an
ongoing moral conversation, informed by the universal norms of equal
moral respect and egalitarian reciprocity. Such dialogues can be risky and
unpredictable. They may lead to further polarisation or to greater intercultural understanding. Ultimately, the goal is to arrive at just multicultural
arrangements, to create a sense of belonging for diverse communities and
to demand the inclusion of the other.75
Many of the essays in this book explore the tensions that can arise when
addressing the claims of collectivities, specifically when presented as claims
to group rights or group differentiated citizenship. The claims of collectivities may conflict with the rights of the individual, as the discussion of
reservations to human rights treaties shows. The question then is how to
resolve such conflicts without denying the normative significance of cultural, religious or group differences. I have argued that ultimately the safeguarding of individual autonomy must take priority, when conflicts with
group rights claims arise. However, rather than contributing to a further
polarisation of debates between feminism and proponents of multiculturalism, I have argued that a dual-track approach is required. The dual-track
approach, I think, fits well with the holistic perspective presented in this
collection. From the perspective of method, it highlights the limits of legal
method and the necessity of moving beyond and thinking outside of the
realm of the legal.
SELECT BIBLIOGRAPHY
Al-Hibri, A, Is Western Patriarchal Feminism Good for Third World/Minority
Women? in J Cohen, J Howard and M Nussbaum (eds), Is Multiculturalism
Bad for Women? Susan Moller Okin with Respondents (Princeton, Princeton
Bhabha, H K ,Liberalisms Sacred Cow in J Cohen, J Howard, and M Nussbaum
(eds), Is Multiculturalism Bad for Women: Susan Moller Okin with Respondents
(Princeton, NJ, Princeton University Press, 1999), pp 7984
Benhabib, S, Situating the Self: Gender, Community and Postmodernism in
Contemporary Ethics (Cambridge, Polity Press, 1992)
, Cultural Complexity, Moral Interdependence, and the Global Dialogical
Community in M Nussbaum and J Glover (eds), Women, Culture and
Development (Oxford, Clarendon Press, 1995), p 235
, The Claims of Culture: Equality and Diversity in the Global Era (Princeton,
Princeton University Press, 2002)
75
J Habermas, Postnational Constellation: Political Essays (Cambridge, Polity Press, 2001).

Benhabib, S and Cornell, D (eds), Feminism as Critique: On the Politics of Gender
(Minneapolis, University of Minnesota Press, 1986)
Burrows, N, The 1979 Convention on the Elimination of All Forms of Discrimination
Against Women (1985) 419 Netherlands International Law Review 450
Department of Indian Affairs, The Elimination of Sex Discrimination from the
Indian Act (Ottawa, Department of Indian Affairs, 1982)
Engle, K, Female Subjects of Public International Law: Human Rights and the
Exotic Other Female (1992) 26 New England Law Review 1509
Flax, J, Thinking Fragments: Psychoanalysis, Feminism, and Postmodernism in the
Contemporary West (Berkeley, University of California Press, 1990)
Habermas, J, Postnational Constellation: Political Essays (Cambridge, Polity Press,
2001)
Joppke, C and Lukes, S, Multicultural Questions (Oxford, Oxford University Press,
1999)
Knop, K, Relational Nationality: On Gender and Nationality in International Law
in TA Aleinikoff and D Klusmeyer (eds), Citizenship Today: Global Perspectives
and Practices (Washington, DC, Carnegie Endowment, 2001), p 89
, Diversity and Self-Determination in International Law (Cambridge, Cambridge
Kymlicka, W, Multicultural Citizenship: a Liberal Theory of Minority Rights
(Oxford, Clarendon Press, 1995)
, Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship
Malik, M, Communal Goods as Human Rights in C Gearty and A Tomkins (eds),
Understanding Human Rights (London, Mansell, 1996), p 138
Mullally, S, Gender, Culture and Human Rights: Reclaiming Universalism (Oxford,
Hart Publishing, 2006)
Narayan, U, Dislocating Cultures: Identities, Traditions and Third World Feminism
(London, Routledge, 1997)
Nussbaum, M, Sex and Social Justice (Oxford, Oxford University Press, 1999)
Okin, SM, Is Multiculturalism Bad for Women? in J Cohen, J Howard and M
Nussbaum (eds), Is Multiculturalism Bad for Women? Susan Moller Okin with
Respondents (Princeton, Princeton University Press, 1999)
Otto, D, Disconcerting Masculinities: Reinventing the Subject of International
Human Rights in D Buss and A Manji (eds), International Law: Modern Feminist
Perspectives (Oxford, Hart Publishing, 2005)
Phillips, A, Which Equalities Matter? (London, Polity Press, 1999)
Phillips, A, Multiculturalism without Culture (Princeton, Princeton University Press,
2007)
Rawls, J, The Law of Peoples (Cambridge, MA, Harvard University Press, 1999)
Rehof, L, Guide to the Travaux Preparatoires of the United Nations Convention
on the Elimination of All Forms of Discrimination Against Women (London,
Martinus Nijhoff, 1993)
Shachar, A, The Puzzle of Interlocking Power Hierarchies: Sharing the Pieces of
Jurisdictional Authority (2000) 35 Harvard Civil RightsCivil Liberties Law
Review 387
, Multicultural Jurisdictions: Cultural Differences and Womens Rights
(Cambridge, Cambridge University Press, 2001)
130 Siobhn Mullally

Tobique Womens Group and Silman, J (eds), Enough is Enough: Aboriginal
Women Speak Out (Toronto, Womens Press, 1988)
Volp, L, Feminism Versus Multiculturalism (2001) 101 Colum L Rev 1181
Young, IM, Impartiality and the Civic Public: Some Implications of Feminist
Critiques of Moral and Political Theory in S Benhabib and D Cornell (eds),
Feminism as Critique: On the Politics of Gender (Minneapolis, University of
Minnesota Press, 1986)
6
Lets Talk: Dealing with Difference
in Human Rights Law
RORY OCONNELL
uman rights law proclaims an arrant nonsense: that all persons

are the same, and have the same rights. From the late eighteenth
century French and American documents, to the words of the
Universal Declaration on Human Rights, the universalist claim is made that
all individuals are entitled to the same rights without arbitrary distinctions
based on status. Yet this revolutionary claim, which has overturned political
regimes and confounded conventions, has itself been criticised.
The criticisms have often come from a non-legal disciplinary background
anthropology, philosophy, sociology or others. Sceptics, post-modernists,
feminists, cultural relativists and multiculturalists argue that this universalist view is too simple, or even invidious and oppressive and should be
rejected. This chapter explores the universalist pretensions of human rights;
the criticisms of this universalism; the legal modification of the simple
universalist claim; and, finally, discusses a proposal to resolve some of the
tensions between these views.
UNIVERSALIST CLAIMS
The late eighteenth century revolutionary documents were explicit in their

universalism. The 1776 American Declaration of Independence holds these
truths to be self-evident, that all men are created equal, while the 1789
Declaration of the Rights of Man and of the Citizen affirms that all men
are born and live free and equal in rights.1 Whilst for the next 150 years
human rights remained predominantly within the exclusive competence of
the state, the Second World War changed that. After the Holocaust, the representatives of 58 state-members of the United Nations debated a text that
1 But see SM Singham, Betwixt Cattle and Men: Jews, Blacks, and Women, and the
Declaration of Rights and Man. in D Van Kley (ed), The French Idea of Freedom: the Old
Regime and the Declaration of Rights of 1789 (Stanford, Stanford University Press, 1996).
132 Rory OConnell

would not be binding in international law, but would have profound moral
force: the 1948 Universal Declaration on Human Rights (UDHR). The
initial work on the drafting of that document was done by a multinational
team comprising American, Canadian, French, Lebanese and Chinese representatives. The final text was adopted unanimously with eight abstentions
(from South Africa, Saudi Arabia and six socialist states). The Declaration
echoes the universalism of the earlier texts:
Article 1: All human beings are born free and equal in dignity and rights. They
are endowed with reason and conscience and should act towards one another in
a spirit of brotherhood.
Article 2: Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or
other status.
In the aftermath of the Holocaust, which asserted radical differences

between humans, and condemned the lesser race to extirpation, this proclamation carries moral force. Just as the French Revolution had torn down
the Estates which divided men, so the UDHR rejected divisions between
humans and asserted their equal rights.
The drafters of the Declaration were aware that there were important
differences between persons. From the experience of the interwar minorities
treaties, they were aware that these differences could give rise to problems,
but they pursued the universalism of the Declaration as a solution, rather
than emphasising differences and perhaps fomenting unrest, even schism.
The idea was that if everyone was granted the same rights, on an equal
basis, this should respect everyone and reduce the possibility of discord.
These rights to free expression, freedom of religion, etc protected the right
to be different on a non-discriminatory basis and, by virtue of the right to
association, the right to be different in a group. The UN General Assembly,
by the same resolution which adopted the Declaration, decided that the
question of minority rights was too complicated and delicate, and referred
the matter of minority rights to the Commission on Human Rights for a
more thorough study.2 The General Assembly also called for work to be
done on drafting a binding legal documenta treaty or conventionwhich
would give effect to the rights in the Declaration.
That recommendation was not implemented until 1966. Regional human
rights instruments emerged in the meantime, which again embraced the universalism of the Declaration. The 1948 American Declaration of the Rights
and Duties of Man (which preceded the Universal Declaration) is universalistic: even the cultural right in Article 13 is expressed as the right to take part
in the cultural life of the communityno reference to minority cultures. The
2
GA res 217(III) (1948).
Dealing with Difference in Human Rights Law 133

1950 European Convention on Human Rights is a good example: it does
not refer to minority rights,3 and states that Everyone has the rights therein
specified and this universalism is copper-fastened with a non-discrimination
clause in Article 14.
In 1966, two UN Covenants were adopted to create legally binding
obligations to protect rights. The Universal Declaration was the subject
of a Cold War schism between civil and political rights, on the one hand,
and economic, social and cultural rights, on the other hand, leading to two
Covenants; the International Covenant on Economic, Social and Cultural
Rights (ICESCR) and the International Covenant on Civil and Political
Rights (ICCPR). As we will see, although those Covenants generally echo
the universalist language of the original Declaration,4 they do make some
concessions.
CRITICISMS OF UNIVERSALISM
The UDHR announces that everyone has the same rights to be enjoyed
without distinctions. This universalism was no sooner pronounced than
it was criticised. From different perspectives (sceptics, cultural relativists,
post-modernists and multiculturalists) the argument is made that we cannot
simply assert that difference is irrelevant. Indeed, the attempt to impose the
same norm is castigated as domination rather than being emancipatory.
The challenge comes in different guises. Strikingly, the Declaration
largely ignores the question of national identity in announcing rights. The
Declaration is silent about the right to self-determination which played such
a part in the aftermath of the First World War. This was especially noteworthy as two of the permanent five members of the Security Council controlled large Empires, while another of the permanent five states (Russia)
quickly acquired control over two of the other socialist states which had
abstained in the vote on the adoption of the UDHR. Yet the UDHR is seemingly silent on colonialism and the right to self-determination.
For much of the second half of the twentieth century, various cultural
relativist camps, often drawing on anthropological work, criticised the
assumption that such norms are universally valid: particular contexts may
change everything. This argument can even be made in respect of the most
seemingly basic rights. Take the prohibition of torture, inhuman and degrading treatment (or in the language of the US Constitution, the prohibition of
3 Except for a brief reference in Art 14 to non-discrimination on grounds of association
with a national minority.
4 Both Covenants limited their universalist claims as regards non-nationals. ICESCR Art
2, allowed developing countries to determine to what extent non-nationals should benefit
from economic rights, whilst ICCPR, Art 25s right to take part in public affairs is limited to
citizens.
134 Rory OConnell

cruel and unusual punishment), for example: Steiner and Alston cite the
aboriginal practice of spearing which would unquestionably be termed
cruel and unusual or inhuman and degrading in North America or
Western Europe, yet it is arguably regarded by Australian aboriginal peoples
as more humane than imprisonment.5 Similar arguments may be made
about mutilation as practised in some countries supposedly under Islamic
law; or about practices of female genital mutilation in some African countries; or about cosmetic surgery in Western countries.
These disagreements are not merely at the UN level. Despite the Council
of Europe being for a long time a club dominated by states in Western
Europe, who might be assumed to share a similar cultural background,
cultural relativism has dogged decisions of the Strasbourg institutions. One
famous example is Tyrer v United Kingdom, where the practice of corporal punishment, inflicted after a judicial decision on a minor in the Isle of
Man, was found to constitute degrading treatment and so was absolutely
banned under Article 3 of the ECHR.6 The UK judge on the European
Court dissented, noting that corporal punishment had been a regular part
of the school culture when he was growing up.
Multiculturalism
Though the cultural relativism arguments tend to focus on claims by states
that it is unjustifiable moral imperialism, this is not the only, or even the
most interesting, problem posed for human rights by reason of differences.
As philosophers, anthropologists, sociologists and others teach us,7 identities frequently do not correspond perfectly to national boundaries: religions, cultures, ethnicities, linguistic groups (etc) exist both within national
boundaries and across them in this multicultural globalised world.8
One cannot ignore the many controversies and disputes which have
centred around questions of identity and group difference in recent years:
controversies over blasphemous cartoons in Denmark; wearing of religious
garments in Turkey, France and the United Kingdom; universal civil laws
in India; language rights in Belgium (and Canada, United States, France,
Ghana Northern Ireland, etc) and rights of nomadic communities across
Europe. This is not to mention the conflicts which seem to be rooted at
least partly in differences of identity and which have afflicted Northern
5 The impact of imprisonment on aboriginal individuals was highlighted in a recent decision of the Human Rights Committee: Brough v Australia, Communication No 1184/2003,
27 April 2006.
6 Tyrer v United Kingdom (1978) 2 EHRR 1.
7 See eg IM Young, Justice and the Politics of Difference (New Jersey, Princeton University
Press, 1990).
8 See generally the chapters in Part V of this volume.

Ireland, Cyprus, the former Yugoslavia, Rwanda and today threaten the
stability of Iraq.
A further consideration needs to be born in mind. The war on terrorism
since 11 September 2001 has often involved compromises in relation to
human rights. Whilst some limits on rights may be justifiable in the interests
of public security, one of the most worrying aspects of these security measures is their discriminatory appearance, often seeming to target suspect
communities, specifically foreigners, those of Arabic origin or those of the
Islamic faith. The discriminatory aspect of the war on terrorism has led
to very strong pronouncements by human rights bodies9 and to domestic
scrutiny of community relations.10
As these examples demonstrate, issues of identity, difference and minorities, emerge in many different guises in multicultural states. Some demands
made by minorities are simple negative claims against the state: the freedom
to be allowed to use ones own language, to practice ones own religion.
Other times the claim is for one of non-discriminatory treatment: driving
while Black (or Arab) should not be a reason for suspicion. Yet often the
claim is more controversial: the negative liberty can only be practised (or
non-discrimination respected) if a minoritys members are allowed an exemption from general laws which are pursuing valid public interests.11 This may
entail exemption from general laws (eg) requiring the wearing of motorcycle
helmets, prohibiting the display of daggers in public, requiring shops to close
on a certain day of the week, requiring employees to work on a certain day
of the week, prohibiting certain forms of slaughter of animals, exemption
from general rules on land use and planning, rules requiring the wearing of a
school uniform. A further stage is reached when the demand evolves from a
negative one to a positive claim for state assistance, for instance, requests for
state assistance in providing minority schools, or producing state documents
in minority languages, or providing accommodation facilities to pursue a
nomadic lifestyle. Beyond this there may be demands for certain forms of territorial or political autonomy. Some of these claims may also involve limiting
some persons rights, either members of the group or persons who are not
members of the group (eg requiring the use of the French language exclusively
on public signs in Quebec limits the rights of Anglophone citizens; banning
non-members of certain groups from a territory interferes with their liberty
of movement). At the most extreme, there is the possibility of secession.
9 ECRI General Policy Recommendation No 8 (2004) on combating racism while fighting terrorism; UN High Commissioner for Human Rights, Joint Statement of 17 Special
Rapporteurs on Human Rights and Terrorism (E/CN.4/2004/4, 2004), annex 1.
10 See the UK Parliaments Home Affairs Select Committee, Terrorism and Community
Relations (London, House of Commons, 2005).
11 The political philosopher Brian Barry has recently poured scorn on such exemption
policies: Culture and Equality: an Egalitarian Critique of Multiculturalism (Harvard
University Press, 2001).
136 Rory OConnell

The UN member states in 1948 were undoubtedly correct to recognise
that the issue of minorities (one aspect of these connected problems) was
too difficult and delicate to handle in a universalistic document. It is a
legitimate question to pose whether human rights law has the intellectual
resources to respond to these questions. The texts of human rights law
have moved on from the simple universalism of the 1948 UDHR, without
renouncing that claim.12
QUALIFICATIONS OF THE UNIVERSALITY OF THE UNIVERSAL
DECLARATION
Group Rights? Peoples Rights and the Rights of Indigenous Peoples

If the UDHR was silent on the question of national identity, the treaties
implementing the UDHR were not. In breaking this silence, the Covenants
introduce a right of one particular group, a people. This introduces one
understanding of the idea of a group right, that it is a right which belongs
to a group or collectivity as such.
Despite their tendentious nature,13 peoples rights have been recognised
in different texts, most notably common Article 1 ICESCR/ICCPR on the
right of a people to self-determination. Other peoples rights (eg development, health and peace) have been recognised in UN Declarations but also
in the African Charter of Human and Peoples Rights.
Yet, what is meant by even the best established of these peoples rights
the right to self-determinationis not certain. The definition of a people
is notoriously unclear. Whilst in the time of decolonisation the concept
of the peoples right to self-determination entailed the independence of
colonised territories, this is not such a relevant problem today. But perhaps
the requirements of self-determination themselves are changing, and it can
include processes short of independence which may be relevant to peoples
in multinational or even multicultural states.
A people is different in international human rights law from the idea of
an indigenous people or indigenous population, yet here too there have
been developments where group rights in the sense of a right belonging
to a group or collectivity have been recognised. The International Labour
Organisation has a treaty on the rights of indigenous and tribal peoples,
while in 2006 the UN Human Rights Council recommended that the
General Assembly adopt a Declaration on the rights of indigenous peoples,
12 Though some think that human rights law has conceded too much to the relativists:
M Ignatieff, Human Rights as Politics and Idolatry (Princeton, Princeton University Press,
2001).
13 C Tomuschat, Human Rights: Between Idealism and Realism, Collected Courses of the
Academy of European Law (Oxford, Oxford University Press, 2003), p 48.

which would include the rights of an indigenous people as a collectivity,
including the right to self-determination
Responding to Cultural Relativism
A second manner in which the simple universalism of the UDHR has been
modified is by the compromise made between the UDHR and cultural
relativism. Whilst cultural relativism arguments were frequently made in
the second half of the twentieth century, the result of the exchange often
tended (unsurprisingly) to weaken both extreme universalism and extreme
relativism.14 In this debate, the views of non-legal disciplines such as
anthropology did not merely highlight the problems with universalism, but
also stressed the dangers of a simplistic cultural relativism which would
reify, and indeed petrify, a culture.
An attempt to reconcile these different concerns was made in 1993.
After the end of the Cold War, 171 states sent representatives to a World
Conference on Human Rights in Vienna, attended by human rights experts
and activists. This resulted in the Vienna Declaration of 1993 which sought
to reaffirm the faith of the world community in human rights, and to
incorporate some of the different strands in human rights thought that had
emerged in the previous 45 years. In particular, it addressed the cultural
relativism debate and proclaimed:
5. All human rights are universal, indivisible and interdependent and interrelated While the significance of national and regional particularities and various
historical, cultural and religious backgrounds must be borne in mind, it is the duty
of States, regardless of their political, economic and cultural systems, to promote
and protect all human rights and fundamental freedoms. (Emphasis added).
This clause expressed a general consensus that there was a middle path to
be steered between any sort of simple universalism and any rejection of universal norms. It would express the idea that universal human rights norms
are valid (universally) but have to be interpreted or implemented with an
eye to the particularities of any given national context, or, in the words of
the Vienna Declaration, historical, cultural and religious backgrounds.
To declare the desirability of achieving a compromise between universal
norms and particular contexts is easily done. What is not so easy is to
explain how this might be operationalised.15
One possible approach is that developed by the European Court of Human
Rights when interpreting and applying the 1950 European Convention on
14 For a philosophical and jurisprudential analysis, see G Pavlakos, Chapter 7; for an
anthropological view, see M Callari Galli, Chapter 3.
15 One excellent example of how it might be operationalised is the Inter-American Court of
Human Rights decision in Mayagna (Sumo) Awas Tingni Community v Nicaragua, 21 August
2001, discussed by K De Feyter, Chapter 1.
138 Rory OConnell

Human Rights. The European Court has developed a doctrine to cope with
cultural differences between the 46 members states of the Council of Europe.
This is a doctrine know as the margin of appreciation. This doctrine serves
many purposes, allowing the European Court to accord a degree of discretion or deference to an individual state. This margin doctrine is invoked in
many different types of cases, such as when national security is at stake, or
sensitive decisions about the political system are involved, or when there
are issues which are difficult for the judges based in Strasbourg to assess
(eg planning), or there is complex balancing of interests to be done. One
key feature in deciding whether to accord a generous margin of appreciation to a state is whether there is a common European standard across the
states of the Council of Europe. These differences may be down to cultural,
ethical or religious differences. This argument has been made successfully
in several cases. In instances where a public authority has sought to restrict
free expression on grounds of protecting public morality, or where material
is deemed to be blasphemous, then the European Court has indicated that
it recognises that the divergence between states on these matters justifies a
generous margin of appreciation.16
In a case from France, it was held, by four votes to three, that France
could deny a gay man a right to adopt a child, as this was within its margin
of appreciation. The Courts majority expressly based this on the lack of
a common ground among member states.17 A further case demonstrates
the margin of appreciation doctrine in operation. Ireland bans paid religious advertising on radio and television. The Court pointed to the lack
of European standards on this question and accepted the relevance of the
particular contexts of Ireland, including the dominance of one specific faith,
and the divisive nature of religion in Northern Ireland. The states ban
appeared as a proportionate restriction in these contexts.18 Finally, the much
discussed case of Leyla Sahin saw the Turkish ban on religious headscarfs at
Istanbul University upheld. The European Court reiterated its support for
the principles of pluralism and tolerance, noting that these often required a
balancing of rights based on dialogue and a spirit of compromise and so
rights sometimes had to be restricted to protect the rights of others. This
consideration was especially important in the area of church-state relations,
where again the Court noted that there was no uniform conception of
church-state relations in Europe: Rules in this sphere will consequently vary
from one country to another according to national traditions.19
This margin of appreciation doctrine can therefore be seen as one way
of operationalising the Vienna Declarations reference to universal norms
16
17
18
19
Muller v Switzerland (1991) 13 EHRR 212.

Frette v France (2004) 38 EHRR 439 (27 February 2002).
Murphy v Ireland (2004) 38 EHRR 212 .
Leyla Sahin v Turkey, Application No 44774/98, 15 November 2005.

taking into account particular contexts. However, we must note that this
doctrine is disputed. Strong advocates of human rights will be critical of this
get-out clause for the state, and we need look no further than the dissenters in Frette who felt that the European Court of Human Rights should be
at the forefront of promoting equality. Further, the margin doctrine is a very
imprecise instrument. As the dissenters in Frette again noted, it is difficult to
reconcile a string of important decisions upholding the right of gay men and
lesbians to equality with the decision allowing a gay man to be denied the
right to adopt.
Perhaps the most telling criticism of the margin of appreciation doctrine is that it only captures the problems with one type of difference,
differences which coincide with the boundaries of a state. Applying the
margin of appreciation concept in this context would often result in the
upholding of general national laws at the expense of minority practices,
eg would result in the upholding of laws banning certain forms of ritual
slaughter of animals20 or planning laws which impinge on the interests
of nomadic groups.21 If this was all that human rights law could do,
then the accusation that national states were being protected rather than
human rights being upheld would be difficult to refute, as the margin of
appreciation doctrine says little about the common situation where there
are differences within the state. How do we achieve a balance between
universal rights and particular contexts when the differences are within
a state?
Group Rights? Non-discrimination and Vulnerable Groups
Since the 1948 Universal Declaration, equality and non-discrimination have
been central to international human rights law. Whilst those values are considered important in that document, later texts emphasise them even more.
Rather than being satisfied with saying rights should be non-discriminatory,
international human rights law recognises that we need to address difference more explicitly and has developed a series of conventions aimed at
non-discrimination. There was considerable impetus for this during the
1960s as the process of decolonisation was under way, and the newly independent states identified racism and apartheid as serious evils. The first of
the treaties to address non-discrimination was the 1965 Convention on the
Elimination of Racial Discrimination (CERD), a text which preceded the
binding treaties of the ICCPR and ICESCR.
20 Chaare Shalom Ve Tsedek v France, Application No 27417/95, 27 June 2000. The situation might well be different where a specific religion is targeted by such measures allegedly
based on animal welfare considerations, as addressed in the US Supreme Court case of Church
of Lukumi Bibalu Aye v City of Hileah, 508 US 502 (1993).
21 Chapman v United Kingdom (2001) 33 EHRR 399, at para 91.
140 Rory OConnell

Whilst CERD is expressed in the language of non-discrimination, later
UN treaties recognised that equality was not just a question of nondiscrimination, but of protecting certain groups who were vulnerable to
having their rights violated: see the 1979 Convention on the Elimination
of Discrimination Against Women, the 1989 Convention on the Rights of
the Child, the 1990 Convention on the Rights of Migrant Workers, and the
2007 Convention on the Rights of Persons with Disabilities. This trend is
continuing today with the United Nations working on a text on the rights
of indigenous peoples (but proposals for a treaty to prevent discrimination
on grounds of sexual orientation have run into difficulties in the United
Nations).
These treaties proclaim equality not in the sense of formally identical
treatment, but a more substantive equality to participate equally in the
enjoyment of rights and freedoms. Sometimes this will require recognising differences, and indeed the treaties often specifically authorise special
measures to promote equality even though this involves recognising the
differences (affirmative action or positive discrimination: eg Article 2.2
CERD, Article 4 CEDAW). In recognising that members of certain groups
are especially liable to have their rights violated, and may require temporary special measures to ensure equality, or may even require special rights,
human rights law is recognising that the rights of an individual cannot be
protected without considering the group to which the individual belongs (eg
women, migrant workers or children). This is a different sense of group
right from that in the example of peoples rights.
These treaties are also the site of disagreement about how to deal with
difference: CEDAW in particular has been the subject of many reservations
which may be seen as reflecting cultural relativism arguments,22 while many
of the comments about proposals on sexual orientation betray divergent
ethical and cultural attitudes to sexuality.
The development of non-discrimination principles may be one effective
solution to problems posed by group rights claims in multicultural societies. If, for instance, the state funds the private religious schools of one faith,
then non-discrimination would require funding for other private religious
schools of other faiths.23 If the law grants local authorities the right to eject
persons from halting sites for gypsies without any judicial oversight, but
22 Algeria has a reservation to protect its family code; Bahrain, Bangladesh, Brunei, Egypt,
Iraq, Mauritania, Morocco, Oman, Saudi Arabia and the UAE, among others, have reservations to protect Islamic law. Many other countries have more specific reservations and declarations (the United Kingdom has a lengthy list) while some countries have not even signed the
Convention, most notably the United States.
23 Thus the UN Human Rights Committee ruled that provision in Ontario for the funding
of Catholic schools but no other religious schools was discriminatory under ICCPR, Art 26:
Waldmann v Canada, Communication No 694/1996: Canada, 11 May 1999 (CCPR/C/67/
D/694/1996).

requires such oversight in other cases of local authority tenants, then there
is clearly discrimination.24
Group Rights? Rights of Persons Belonging to Minorities
The concepts of equality and non-discrimination are not the only human
rights approaches to dealing with difference. The recognition of minority
rights clearly allows questions of the politics of identity and multiculturalism to intrude into human rights law. Yet such minority rights are invariably qualified in international human rights law. Even the language used is
indicative of this: human rights law speaks of the rights of persons belonging to minorities and not the rights of minorities itself. This may indicate a
presumption that only human individuals should be rights holders (though
in fact human rights law recognises corporations (legal persons) and the
people as rights holders). States are understandably chary of minority
claims which may endanger the national sense of identity and even the territorial integrity of the state. And there is a genuine problem of the minorities
within a minority: tolerating a minority is fine, but what of the situation
where a minority is oppressing an internal minority?25
Article 27 of the ICCPR begins this process of recognising minority
rights. Article 27 states that:
In those States in which ethnic, religious or linguistic minorities exist, persons
belonging to such minorities shall not be denied the right, in community with the
other members of their group, to enjoy their own culture, to profess and practise
their own religion, or to use their own language.
The tentative language of this guarantee of minority rights is striking: it

refers to the rights of persons belong to minorities and not the right of a
minority as a group. (Despite this tentative language, some countries still
objected: France entered a reservation or declaration to Article 27 rejecting
the idea there were minorities in France.)26 Further, the right seems to be
expressed as a mere negative liberty to non-interference by the state.
The body in charge of monitoring the implementation of the ICCPR, the
Human Rights Committee (HRC), has added a gloss. The HRC stresses
that the right can be invoked by migrants and visitors to the state, and that,
despite its negative formulation, the right must be guaranteed and that may
entail positive measures to ensure that neither the state nor non-state actors
24 So said the European Court of Human Rights in Connors v United Kingdom (2004) 40
EHRR 189, though basing its decision on ECHR, Art 8s right to a home, rather than Art 14
(non-discrimination).
25 Lovelace v Canada [1981] 1 Selected Decisions under the Optional Protocol 83 (30 July
1981).
26 Guesdon v France, Communication No 219/1986: France, 23 August 1990 (CCPR/C/39/
D/219/1986).
142 Rory OConnell

violate the right. In particular, the state may be obliged to take positive
steps to protect the identity of a minority and the possibility to enjoy and
practise their language, culture and religion.27
The United Nations further developed this notion in a 1992 declaration
of the General Assembly.28 The Declaration specifies the right to participate in public decisions affecting the minority, to maintain contacts with
members of the minority group across national boundaries. It urges states
to create favourable conditions for minorities to enjoy their culture. This
Declaration is not formally binding in international law and, indicating the
sensitivities in this area, has a clause ensuring that the rights of minorities
should not be used to imperil the territorial integrity of states. The United
Nations continues to be interested in minority issues, with a Working
Group on Minorities being formed in 1995 and an independent expert on
minority rights being appointed in 2005.29
It is not just the United Nations which is active in the field of minority
rights. Following the end of the Cold War, the democratisation of Eastern
Europe and the emergence of new states in Europe, minority rights became
more important in the European human rights frameworks, discussed
elsewhere in this volume.30 Perhaps most strikingly, and for a lawyer most
excitingly, the European Convention on Human Rights has been the site of
a burgeoning jurisprudence on minority rights, despite the relative absence
of minority rights from the text of the Convention.31 Thus, the European
Court of Human Rights has held that rules on national service and the penalties for non-compliance with this duty must make reasonable exceptions
for religious minorities.32 It has also recognised that housing and planning
policy should take into account the lifestyles of nomadic minorities.33
The rights of persons belonging to minorities allows for multiculturalism
to be recognised as part of human rights law. If these very qualified statements were to be taken seriously then we should be recognising group differentiated rights to enjoy culture, participate in society, associate (including
across borders), speak a language, and have distinct education facilities.
As noted earlier, doctrines like the margin of appreciation are not much
help for this type of problem. Yet there may be a clue to a solution in one
brief comment from the Leyla Sahin case, noting that a balance of rights
27
ICCPR General Comment No 23, The rights of minorities (Art 27), 8 April 1994.
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and
Linguistic Minorities (A/RES/47/135, 1992).
29 See www.ohchr.org for details.
30 See J Allain, Chapter 13, S Breitenmoser, Chapter 12 and L Wilken, Chapter 4.
31 G Gilbert, The Burgeoning Minority Rights Jurisprudence of the European Court of
Human Rights (2002) 24 Human Rights Quarterly 736.
32 Thlimmenos v Greece (2001) 31 EHRR 411. Nevertheless, in more cases decisions do
not favour minorities, whether it be on the wearing of veils in Turkish schools or permission
to use particular methods of ritual slaughter in France.
33 Chapman v United Kingdom (2001) 33 EHRR 399.
28

must be based on dialogue and a spirit of compromise and great respect
accorded to the democratic decision-making process (emphasis added).
RIGHTS, RELATIVISM AND DEMOCRATIC DIALOGUE
Human rights law has focused much more on democracy since 1989 than
it did during the Cold War era. In both the Universal Declaration and the
1966 ICCPR, democracy was indirectly referred to as a right.34 However,
the right to democracy was sidelined at that time. Unsurprisingly perhaps,
in the context of an ideological confrontation between peoples democracies and liberal democracies, human rights lawyers shied away from a right
which would require them to scrutinise political structures and practices.35
The dissolution of this tension with the fall of the Berlin Wall meant that
more attention could be focused on democracy; indeed it became a matter
of practical concern in dealing with the democratisation process in former
socialist countries. This renewed interest in democracy was expressed in the
aforementioned 1993 Vienna Declaration:
Democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing.
Democracy is based on the freely expressed will of the people to determine their
own political, economic, social and cultural systems and their full participation in
all aspects of their lives the promotion and protection of human rights and fundamental freedoms at the national and international levels should be universal
The international community should support the strengthening and promoting of
democracy, development and respect for human rights.
Might this renewed interest in democracy offer guidance in dealing with

the problems posed by difference? There are some examples in national and
international human rights law of how this might work.
At the level of the European human rights system, the European Court
of Human Rights has introduced a notion of participation in cases where
difficult balances must be struck between competing rights and public
interests, especially those involving use of land. The need for members of
a minority to be offered opportunities for participation or consultation
in decision processes was stressed in the cases on rights of nomads
in the United Kingdom, where the European Court of Human Rights
noted that travellers and gypsies could take advantage of procedures to
make their position clear before final decisions on planning and land use
were made.
34
UDHR, Art 21 and ICCPR, Art 25.

This was true at the world level. Regionally, the context was different, and democracy
is a value which is upheld throughout the text of the 1950 European Convention on Human
Rights.
35
144 Rory OConnell

One possible example of how this might work is seen in a recent decision
of the UK House of Lords. The Denbigh High School case concerned a dispute about a student who wished to wear a long coatlike garment known
as a jilbab to school.36 She refused to wear one of the approved uniforms
which other Muslim women wore, a shalwar kameeze. The House of Lords
was impressed with the schools care in designing its uniform policy: it consulted on what would be an appropriate uniform for Muslim students, and
communicated its policy clearly to prospective students and their families.
When challenged by this student the school again took advice but considered
that its uniform policy, which had been successful for some years, should
be maintained. The school reported that some Muslim students resisted the
introduction of the jilbab and that the school feared introducing it would
highlight or even encourage religious distinctions among Muslim students.
It is also of significance, perhaps, that many of the persons involved in running this school were themselves of the Muslim faith.
What is impressive about this situation is the care taken by the school to
consult in order to strike a balance which would respect the interests of all
equally. This is the sort of dialogue which deliberative democrats might see
as an example of good democratic practice in a multicultural setting.
A further example of how attention to democracy is important comes
from a case before the UN Human Rights Committee.37 The Maori complainants alleged that a deal struck between the New Zealand government
and Maori negotiators infringed their rights to pursue their culture, including the right to engage in traditional economic and social activity (fishing).
The HRC noted that the question was whether rights under Article 27
were being excessively limited, that these rights could include practices of
an economic nature, and that such practices could evolve and change with
new technology. In deciding whether the new regulations amounted to an
acceptable regulation of minority rights it was crucial to ascertain whether
the minority had an opportunity to participate in the decision-making
process.
In this case, the New Zealand government had acted after a complex
process of consultation in which it appeared the majority of Maori supported the new regulations. The process took on board Maori sensitivities
and included provision for regulations to protect customary activities. The
combination of broad consultation and maintaining safeguards for Maori
interests was sufficient to prevent a violation of Article 27.
These two instances highlight the importance of democratic consultation. Democratic consultation is especially apt to questions of group rights
36 R (on the application of Begum) v Denbigh High School [2006] UKHL 15, 22 March
2006.
37 Mahuika v New Zealand, Communication No 547/1993: New Zealand, 15 November
2000 (CCPR/C/70/D/547/1993).

because groups are not homogenous, and cannot be defined by reference
to one unalterable cultural or religious practice.38 There are disagreements
among Muslims over the most suitable clothing for women; there are disagreements among Maori over how best to protect their cultural, social and
economic heritage. Democratic consultation allows for these differences to
emerge and be debated both within the group and within wider society.39
These differences within the minority community reflect the frequent
complexity of group rights disputes which may require compromises from
members of both the minority and majority communities. The complexity
of these situations is such that simple prescriptions are not likely to offer
sufficiently nuanced solutions. Such solutions are likely to emerge only as
part of a process of consultation and deliberation which exposes practices
to analysis and suggests possible solutions. This, at least, is the hope of
deliberative democrats.
CONCLUSION
We have seen how the universal claims of individual human rights

announced most notably in the Universal Declaration have been subject
to challenges based on cultural relativism and multiculturalism and noted
how human rights law has evolved in response to those challenges. In this
process of challenge and legal evolution, the benefits of multidisciplinary
studies becomes clear. Non-legal disciplines have been critical in highlighting the difficulties with both extreme universalism and an excessive
cultural relativism. The legal response to cultural relativism has been to
recognise that universal norms need to be concretised in particular contexts. As noted by Koen De Feyter in Chapter 1, insights from other disciplines may be helpful in interpreting universal rules in particular contexts.
We also noted the possibility of using a legal doctrine such as the margin
of appreciation in this context, but stressed the dangers of relying on the
margin of appreciation to achieve this compromise. We especially noted
that such a doctrine does not readily assist with the problem of multicultural tensions within (and across) national boundaries.
We suggested there that a focus on democratic or deliberative discourse
(an idea borrowed from political philosophers) is one way to resolve
these dilemmas, and we may refer back the notion of deliberative democracy to the earlier problem of cultural relativism. Resolving tensions
between individual and group rights will not be done easily by always
favouring the individual or the group interest, but much can be done by
38 AI Eisenberg and J Spinner-Halev, Minorities Within Minorities: Equality, Rights, and
Diversity (Cambridge/New York, Cambridge University Press, 2004).
39 See S Mullally, Gender, Culture and Human Rights (Oxford, Hart, 2006) and also in
Chapter 5.
146 Rory OConnell

promoting principles of non-discrimination, substantive and contextualised
interpretations of rights and a democratic discourse on the understanding
of rights. At the end of the day, we may well be different from each other,
and often do not even understand each other, but we can at the least continue to engage in dialogue.
SELECT BIBLIOGRAPHY
Benhabib, S, The Claims of Culture: Equality and Diversity in the Global Era
(Princeton, Princeton University Press, 2002)
Donnelly, J, Universal Human Rights in Theory and Practice (Ithaca, Cornell
Eisenberg, AI and Spinner-Halev, J, Minorities Within Minorities: Equality, Rights,
and Diversity (Cambridge/New York, Cambridge University Press, 2004)
Habermas, J, Post-National Constellations (Cambridge, Polity Press, 2001)
Ignatieff, M and Gutmann, A, Human Rights as Politics and Idolatry (Princeton,
Princeton University Press, 2001)
Singham, SM, Betwixt Cattle and Men: Jews, Blacks, and Women, and the
Declaration of Rights and Man in D Van Kley (ed), The French Idea of Freedom:
the Old Regime and the Declaration of Rights of 1789 (Stanford, Stanford
Steiner, H and Alston, P, International Human Rights in Context (Oxford, Oxford
Young, IM, Justice and the Politics of Difference (Princeton, Princeton University
Press, 1990)
7
Non-Individualism and Rights
GEORGE PAVLAKOS*
INTRODUCTION
he pivotal legitimating role rights play in contemporary political

discourses derives from their function as justificatory reasons in public contexts of action and deliberation.1 In fulfilling this role, rights
fall within the idea of public justification enshrined in the philosophical tradition of political liberalism from Mill to Rawls. Yet, recent communitarian
critiques of liberalism have questioned the role traditionally ascribed to
rights on a number of points: first, in suggesting that rights are products of
collective action, those views argue for a structural transformation of rights:
far from corresponding to universal claims of individuals, as liberal theory
teaches us, their content derives from the values of particular collectives or
communities. From this it follows, secondly, that we need to revise our perception of who the bearers of rights are: contrary to the traditional liberal
conception, which allowed only individual agents to benefit from rights,
groups and other collectives should be considered possible candidates (especially with respect to claims of recognition in modern multicultural communities). Finally, we are warned that we should be extremely sceptical when
it comes to the universal validity of rights. Far from constituting universal
claims, rights, in being products of particular communities, are confined to
specific cultures. Resting on this premise, it is further submitted that what
liberal philosophers took all along to be universal claims pertaining to each
and every human being may actually turn out to be a cultural construction
whose scope is confined to post-enlightenment Western societies.
* Funding for this chapter has been generously provided by the Alexander von Humboldt
Stiftung. A longer version of the paper has been published as Non-Individualism, Rights, and
Practical Reason in (2008) 21 Ratio Juris 66. The author acknowledges the kind permission
of Blackwell Publishing to reprint the relevant portions.
1 In what follows I take justification with reasons to pertain as much to action as to deliberation. To that extent I consider speech to constitute a level of action. Far from being new,
this view has long been defended in philosophical circles. The most prominent example is the
so-called speech acts theory (developed by Austin and later Searle) but also the most recent
discourse theory which was put forward by Habermas.
148 George Pavlakos

This chapter aims to affirm the structural changes of rights, albeit without following the bulk of communitarian critiques in their rejection of the
normative significance of rights and their role as sources of legitimacy.
Most notably, it puts forward the thesis that the communitarian critique, if
marshalled properly, amounts to a passage from rights as private reasons
to rights as public reasons. Rights retain their justificatory role as reasons
for action even after their transformation into public reasons (in fact it
is especially then that they retain this power, or so this chapter claims). The
order of the discussion unfolds as follows: after laying down some general
requirements for something to constitute a normative reason for action, the
chapter proceeds to illustrate the weaknesses of an individualist conception
of reasons akin to the one pertaining to liberalism. In a further step, an
alternative non-individualist explanation is put forward, one that borrows
a number of insights from the debate on individualism in contemporary
philosophy of mind and language; non-individualism in this context is the
view that, in order for rights to constitute normative reasons, they must be
conceived of as arising from a public practice which is responsive to reasons
(ie reflective). In conclusion, it is argued that all those who partake of such
a practice acquire the status of persons. Personhood is a normative concept that cuts across the divide between individuals and communities and,
for that reason, can play the role of alleviating potential tensions arising
between those two concepts.2
It should be noted, finally, that throughout the chapter the discussion
remains at a relatively abstract level with a view to delivering a general
theoretical argument, which goes beyond particular theories and authors.
As a result, references to concrete works have been confined to footnote
material.
CONDITIONS OF NORMATIVITY
In the first instance, it is of relevance to assess the conditions for something

to constitute a normative reason. Exploring such conditions aims at illuminating the circumstances under which rights may retain their character
as standards that may feature in justifications of action and deliberation.
The first condition is normative relevance, in other words, the affinity
reasons must bear to subjects of action and deliberation (agents). For the
purposes of the present discussion this affinity can be simplified as the
2 Although this is a very important point for current debates on rights it will be addressed
only en passant in this chapter. I hope to develop this point further on a future occasion when
I will have time to engage in more detail with the relevant literature. The abstract nature of
this chapter allows me to cordon off this theme, since any discussion of it would require a
more concrete engagement with particular theories, a task that would render this chapter far
too lengthy.
Non-Individualism and Rights 149

capacity reasons must possess to motivate agents. A second condition is
to be found in the requirement of objectivity. Disregarding the plethora of
topics potentially falling under this subject, two will be highlighted in the
present context: stability and externality. Reasons must be relatively stable
and, at the same time, retain a relative distance with respect to the context
of deliberation/action in which they are employed. Let us ponder on each
of the two conditions in turn.
Condition of Normative Relevance
First, a few words on normative relevance as a motivational force. For any
normative reason to develop a regulatory capacity over deliberation and
action, it is essential that such reason be connected to them. Such connection requires an explanation of how reasons feature in the make-up
of agents who are the source of arguments and actions. In this context,
a theory is called for which would guarantee the proposed connection by
constructing agents and reasons at the same level. There is a great temptation to conceive of such a connection at the psychophysical level: along
these lines agency is nothing but the collection of a certain type of mental
states of individuals. In the history of ideas such views have been associated with the philosophy of utilitarianism. Utilitarian theory attempts to
conceive of reasons as psychological (mental) states expressing desires or
other interests, more or less well-defined.3 Such individualistic conceptions
confine reasons to private entities. However, creating a private vocabulary
for reasons leads to an inability to communicate standards within collective
practices of deliberation/action. As a result, reasons are deprived of their
regulatory (or normative) force. A similar result is obtained from an ultrarationalist conception of reasons: in this context, reasons are constructed as
absolute mental formulae that possess an idealised, perpetual content which
purports to regulate each and every situation.4 To this picture is attached
an idealised conception of individuals as absolutely rational agents who
partake of those formulae. Once again, the connection between reasons
and agents results from the privileged access they have to their mental
vocabularies.
It is not necessary that the connection between reasons and agents be
explained at the level of individuals mental inventory; in fact, this is
a misunderstanding which, unless dispelled, is bound to jeopardise the
3 For a similar reconstruction of Utilitarianism, see the recent paper by AS Laden,

Evaluating Social Reasons: Hobbes versus Hegel (2005) 102 Journal of Philosophy 327.
4 This is more or less the philosophy of Platonism. Here, reasons resemble rigid rails that
extend to the future in an a priori manner, allowing us to predict the right answer/action
for any possible situation. The futility of this view, which is otherwise very important for the
history of ideas, should be obvious.
150 George Pavlakos

requirement of normativity.5 Instead, it is possible to advance a normative
understanding of reasons that escapes the impasse of individualist explanations. This line of reasoning borrows elements from the philosophies of
Kant and, later, Wittgenstein who, notwithstanding differences in detail,
may be interpreted as pursuing a common line of argument for the existence of a more basic layer of normativity that underwrites reasons as well
as agents. This level of normativity cannot be reconstructed by reference
to mental states of individuals but needs to be located in public practices
of action and deliberation.6 Public practices bring home the aspect of normativity by establishing a conceptual link between individuals and reasons:
membership in practices of deliberation and action subjects individuals
to public reasons for acting and judging. Subjection of this type upgrades
individuals to agents capable of responding to reasons.7 Thus, within the
realm of public practices, individuals are constituted as persons by virtue
of their being linked to reasons. Failing to do so would result in slipping
to a subnormative level where action and deliberation dissolve into either
psychophysical characteristics of bodies or empty formulae of the mind.
Condition of Objectivity
The second condition of normativity is objectivity. Objectivity comprises the
requirements of stability and externality, both being conducive to the identification of reasons with a relative certainty.8 Reasons remain stable when
they retain their content across a number of situations and contexts. On the
other hand, externality commands that reasons retain a relative distance
vis--vis the various contexts of action/deliberation. Such distance is valuable in allowing agents to criticise, improve or even revise those contexts.
Objectivity, in either of its aspects, need not be conceived of in rigid terms.
It is not required, in other words, either that reasons remain unchangeable
or that they be a priori, as in independent of any context of application.
Extreme rigidity is detrimental because it renders reasons unworkable as
normative guidelines. This is common to all rigid standards, for such standards fail to live up to the dynamism of actual contexts of practical action
and deliberation and, as a result, break down. Standards which break
down, however, are prone to invite indeterminacy and scepticism as regards
the domain in which they are employed.
Typically, rigid formulations of objectivity are the result of individualist
conceptions of reasons. In conceiving of reasons as mental entities (be they
5
See below regarding individualism and the private conception of rights.

See below regarding non-individualism and the public conception of rights.
7 The concept of the person will be introduced below to denote such reason-responsive
agents.
8 I borrow the two conditions from Laden, n 3 above.
6

psychological states or a priori formulae) individualist conceptions give rise
to a dualist ontology of reasons that is prone to lead to indeterminacy and
scepticism. Dualism in this context signifies a division between, on the one
hand, what is in minds and can be readily known by agents and, on the
other, what is outside minds and may remain elusive for ever.9 While individuals are relatively confident about what is in their heads, they might end
up engaging in hopeless efforts to determine what can be shared with other
minds in terms of reasons for deliberation and action. As a result, insistence
on conceiving of reasons as all-too-certain mental constructs is bound to
lead to extreme forms of scepticism, where it becomes impossible to determine what is normatively required outside the mental realm of individuals.
This inability causes loss of normativity and retreat to the subnormative
level that was warned against above.
Notably, individualism and the attendant effect of dualism has in recent
years been criticised as giving rise to a dualism between conceptual scheme
and content. This is the idea that there exists a stable parameter (conceptual
scheme) available to minds which plays the role of an interpretive matrix
through which individuals interpret their surroundings. This view leads
to the problematic conclusion that there are as many conceptual schemes
as there are persons. Yet, no sooner than the plurality of conceptual
schemes has been granted, than the sceptic can argue that any reason we
put forward to support an interpretation is merely a subjective construct
which undermines the idea of objectivity. But if all we are left with are subjective interpretations, how can we remain confident that our reasons are
genuine, let alone shared by others?
Contra-positively, a more workable conception of objectivity requires
that reasons be more fluctuant, capable of adjusting to particular contexts
of application, albeit ones that are held together by reference to a shared
practice. Here the two conditions of objectivity are sufficiently satisfied:
on the one hand, stability, although somehow relativised, is still at hand,
for it attaches to the continuity of a practice. On the other, externality is
still available, for even though it is no longer an option to entertain an
Archimedean point of view, it is possible to assess reasons by comparing
our beliefs about what constitutes a reason, with the public space of reasons marked out by practices.10 This non-individualist strategy of casting
reasons is much more durable than the strong perception of objectivity that
9 For recent criticisms of individualism in the realm of legal and moral philosophy, see
N Stavropoulos, Objectivity in Law (Oxford, Clarendon Press, 1996); DO Brink, Moral
Realism and the Foundations of Ethics (Cambridge, Cambridge University Press, 1989) and
R Schafer-Landau, Moral Realism. A Defence (Oxford, Clarendon Press, 2003).
10 In the fourth section of this chapter concerning non-individualism and the public conception of rights, we shall see that there is a further meaning of externality put forward by
non-individualists: one set of reasons may be assessed by reference to another set, by switching
between different practices.
152 George Pavlakos

individualism solicits. Its strength lies in its ability to combine objectivity
with a certain amount of fallibilism:11 practices, in being public, already
establish a connection between minds to the effect that they prevent the
mind-world gap from opening. Anything that may potentially be understood by minds as being a reason exists already outside them, in a public
space of which all minds partake. To that extent the condition of externality
turns into the much more modest claim that reasons occupy a public point
of view which lies over and above subjective states of individuals. That
said, reasons can never become elusive or unknowable for, on the nonindividualist model, minds are constitutively embedded in practices. On the
other hand, reasons are not perfect but evolve along with the practice that
generates them: sometimes agents may discover that what they thought all
along to be a reason turns out not to be one, or that it is in need of modification in the light of some aspect of the practice they had yet failed to
consider (or, again, in the light of a set of competing reasons belonging to
another practice). To that extent, the stability of reasons is not absolute but
resembles more an inertia12 which ensures a smooth transition to new or
even different formulations of reasons. In the end, sacrificing a portion of
the objectivity of the individual point of view may disarm the devastating
attack of scepticism.
In the following two sections, I set out to discuss the individualist and
non-individualist conceptions of rights with a view to demonstrating that it
is only the latter that manages to live up to our reasonable intuitions about
the justificatory function of rights as normative reasons.
INDIVIDUALISM AND THE PRIVATE CONCEPTION OF RIGHTS
The individualist conception of rights arises from a number of powerful

interpretations of the individual prompted by the anthropocentricism of the
philosophy of Enlightenment. In their efforts to supersede theological and
other metaphysical interpretations of human nature and societal formations, philosophers after Hobbes relocated the epicentre of philosophical
enquiry from god and nature to human subjects. In moral and political
philosophy, this shift gave rise to an understanding of normative reasons
that involved a strong reference to the special characteristics of individuals.
We may distinguish between two large categories of individualist interpretations of reasons, depending on upon which understanding of the individual
each of them relies.
11 Most remarkably, scepticism is most effective where there is no room for fallibility, for
the latter is capable of explaining away the doubt sceptics implant in strong conceptions of
objectivity. For more on scepticism, see T Williamson, Knowledge and its Limits (Oxford,
Oxford University Press, 2000), ch 8.
12 See Laden, n 3 above.

On the one hand, there are idealist interpretations; these rest on a representation of individuals as embodying a perpetual ideal: far from being
understood in their societal and natural contexts, individuals are conceived
of as embodiments of an abstract and perfectly rational subject that is disjoined from any particular characteristics, such as pertaining to a member
of a group, a community or a political formation. In this context rights
are understood as fixed universal standards that pertain to subjects so
conceived, possessing uniform content irrespective of the particular situation in which they are evoked, or the social context which produced them.
On the other hand, there is a more pragmatic interpretation which builds
on the psychophysical characteristics of individuals: their mental states,
inclinations and interests. What matters most in this interpretation are the
particular characteristics of subjects which are deemed determinant of the
content of reasons, usually along the lines of a hedonistic calculus.13
Both versions of individualist interpretations of rights fail to represent them
as normative reasons for action. First and foremost, they fail on the level of
objectivity. It is rather difficult to see, on either the idealist or pragmatic
interpretations, how any of the properties that are deemed relevant may be
communicated to agents in a manner that is normatively efficacious, along
the lines sketched earlier.14 In the case of idealism, the problem arises with
respect to the possibility of communicating an a priori formula which lies
over and above the cognitive capacities of any particular individual or group
of individuals (ie community). As remarked earlier,15 such strong presuppositions are bound to undermine any prospect for objectivity and, instead, invite
indeterminacy and scepticism. At the same time, reference to the persons
psychophysical states will not amount to much more. Owing to their subjective character, such states tend to be too fluctuant for consolidating normative contents that could be communicated to agents in a manner that would
fulfil the conditions of stability and externality required by objectivity.
One possible strategy for retrieving objectivity with regard to individualist reasons is to recast such reasons as mental states pertaining to entire
collectives.16 Disregarding any metaphysical and ontological complexities
which saddle such a project, there is a more straightforward source of scepticism to be found: if we create a new type of subject from the collective,
say a super-subject, how would this connect with individuals? Once again,
the problem of indeterminacy arises, for the same problems pertaining to
the effort to communicate private mental states reappear when we try to
communicate the states of a super-subjectunless, of course, we assume
13 This version of individualism comprises most utilitarian projects in moral and political
philosophy; see Laden, n 3 above.
14 See above regarding the condition of objectivity.
15 Ibid. See also the discussion below on shallow communitarianism.
16 For this suggestion, see Laden, n 3 above.
154 George Pavlakos

those states to be mere aggregates of individual mental states, in which case
we are running in circles with no hope of escaping the conundrum in the
first place. Far from suggesting that we should give up hope, these difficulties underline the urgency for addressing the public or collective aspect of
rights. Individualist explications are not only flawed but are furthermore
highly detrimental because of their tendency to obliterate an entire class
of public or social reasons usually associated with rights discourse. Such
reasons arise with respect to the various social roles we occupy as a result
of our membership in various collectives. Those range from roles in the
family to roles which agents acquire as a result of their membership in
groups, associations, nations and states. In filtering such roles through the
viewpoint of individuals, individualism suspends the validity of social reasons on reasons individualistically conceived and, as a result, deprives them
of their normative authority. When, due to the shortcomings of individualism, the latter fail to be normative we also lose hold of the former. Were
this irreversible, our normative lives would look radically impoverished.
Fortunately, as I shall argue below, individualism is not the only option for
understanding rights-based reasons.
Moving on from the failure of individualism to account for objectivity,
to its failure to account for reasons normative force, the following remarks
must be made: reasons individualistically conceived fall below the threshold
of normativity in virtue of their failure to motivate agents. As remarked
earlier,17 for anything to constitute a reason for action, it must be capable
of standing in a motivational relation to an agent by presenting them with
a reason to act. Conversely, individualist reasons, be they psychophysical
states or idealist abstractions, fall short of aligning themselves with a normative self-understanding of agents, such that would require them to act
on reasons. The properties such reasons select as being normatively relevant
actually fail to rise above the subnormative level of empty idealisations or
contingent facts about individuals psychophysical states. Most notably,
such properties, inert of normativity, must be combined with genuine normative reasons in order to develop any motivational power. In fact, not
infrequently, individualist theories themselves commit the fallacy of evoking
such genuine normative reasons over and above individualist reasons with
a view to re-establishing normativity. In this vein, hedonistic philosophies
often distinguish between genuine and non-genuine desires. While the former constitute proper normative reason, the latter correspond to states that
are not genuinely normative but, at most, relate to causal triggers for action
(such as instincts or cravings).18 However, no sooner has the distinction
17 See above regarding the condition of normative relevance; also below on the loss of
normativity: the subnormative level.
18 See Laden, n 3 above, p 350.

been introduced, than one realises that what actually constitutes a motivational reason is not what the hedonist labels genuine desire but, instead,
the criterion she uses for arriving at her distinction; in which case, of course,
the hedonist explication of reasons goes overboard. Mutatis mutandis, the
same goes for abstract idealist constructions: these must remain empty of
motivational capacity insofar as they embody a formula that is inaccessible
to agents and, thus, empty of any substantive evaluations.
In view of the above, it should not come as a surprise that individualist explications of rights have been attacked from many directions. Most
prominent amongst such criticisms have been communitarian attacks that
emphasise the need to conceive of rights as public standards arising from
the membership in a collective. Although not every communitarian view
succeeds in its attempt to account for the normativity of rights, the idea of
rights as public reasons turns out to be particularly fruitful for a normative
account of rights, as argued in the next section.
NON-INDIVIDUALISM AND THE PUBLIC CONCEPTION OF RIGHTS
In this section the basic tenets of a non-individualist conception of rights are

set out. The starting point for this is a listing of communitarian critiques of
rights. In the present context, communitarian stands for any movement in
legal and political philosophy which questions individualist paradigms of
rights by arguing that membership in a group, a practice or a community is
what determines the content of rights.19 Such communitarian critiques have
frequently been cast in terms of ideological criticisms, not always succeeding
to rise above the level of a set of amorphous polemical remarks. Most notably, their failure results from a lack of a normative understanding of reasons
and the agents who handle them. In what follows, I shall reserve the term
shallow communitarianism to characterise any such theory. Although, ultimately, shallow communitarianism fails, it possesses a considerable amount
of negative value, for it can teach us a lot about what an adequate account
of rights should avoid. In contra-distinction, I shall take up a second type of
non-individualism in respect of rights, which I shall call the practice theory
of reasons or simply the practice theory. The practice theory uses most
of the basic intuitions of the communitarian critique but moves beyond it,
in that it attempts to advance a normative non-individualist conception of
rights, as opposed to slipping to a subnormative level. Although the latter utilises much from communitarian critiques, its aim is to work out an
19 For the present purposes I take communitarian critiques to comprise feminist, Marxist and
other critical theories which argue that normative contents (reasons, rules and principles) cannot
be understood in isolation from agents membership in some social group (be it gender, class,
or other). For a brief conspectus of communitarianism, see, G Pavlakos, Communitarianism
in New Oxford Companion to Law (Oxford, Oxford University Press, 2008).
156 George Pavlakos

understanding of non-individualism that is normatively efficacious. The
practice theory, as opposed to shallow communitarianism, gives us reason
to hold on to the legitimating power of rights as normative reasons.
Shallow Communitarianism
Mental Constructs and Indeterminacy
Its valuable critical stance notwithstanding, shallow communitarianism
remains open to the same criticisms that it advances against individualist
models of rights.
First, it may fail to provide an adequate ground for switching from the
individual to the collective point of view. In particular, it is unclear whether
communitarian reasons manage to add up to anything more than mental
constructs akin to individualist reasons. When objectivity as a condition
of normativity was discussed earlier, it was pointed out that private mental constructs are futile as reasons for action and deliberation, since the
inability to share them with others effects indeterminacy and scepticism.
However, a critique of rights as individualist reasons must explain how
and if collective (or social) reasons can be shared amongst agents. Shallow
communitarianism has little to offer in this respect, since its propositions
usually remain at the level of rhetorical argument. To begin with, there is
little in shallow communitarian ideas that guarantees that the collective is
not itself a mental construct (community, woman, man, nation, and so
on), but is in fact one that is merely juxtaposed in a polemical way to liberal
idealisations. Usually such constructs are supposed to explain what it really
means to belong to a particular collective, as opposed to the simplifying
generalisations of liberal theory, and to lay down reliable guidelines for
spelling out normative claims. However, there is nothing in those accounts
to rule out the possibility that such collectives are not themselves another
type of mental construct, merely purporting to replace old ones. Such a
possibility evokes anew the danger of dualism and the concomitant loss of
determinacy and objectivity.20
Loss of Normativity: the Subnormative Level
Notwithstanding the inability of communitarian reasons qua mental constructs to escape indeterminacy, there is a deeper and more devastating threat
20 See above regarding the condition of objectivity. This possibility remains open even if
collectives are explicated as aggregates of their members. This strategy has been most commonly exploited by utilitarian philosophies who argue that collective normative reasons must
be validated from individuals point of view (see on this, Laden, n 3 above, pp 3335). Clearly,
here, the dualism that saddles the individuals viewpoint resurfaces at the level of collective
reasons, with all of the familiar problems arising.

for communitarian perceptions of rights. This relates to the way that communitarian critiques conceive of the social group, membership of which is
supposed to reinforce the non-individualist interpretation of rights. Usually
such theories insist on constructing membership on the level of descriptive
facts, be they of a psychological or another nature, the result being that
such facts fail to explain why this kind of membership might amount to
normative or action-guiding force as regards deliberation and/or agency.
Typical examples here are gender-based explications of rights, which build
their interpretation on an exaggeration of the psychophysical components
of genders (eg physical characteristics or other special interests pertaining to each gender). The same holds for communitarian critiques which
focus on particular empirical characteristics of social groups (like religion,
culture or some other collective feature), and then attempt to draw normative conclusions from those. A further example pertains to some positivist
explanations of rights in legal theory and philosophy.21 Here, rights are
defined with the help of a complex social rule which operates as a general
formula to identify a series of factors that must be obtained for a normative
reason to come in force. Such factors include acts of officials, parliamentary
procedures and the case law of certain courts. The main flaw in all of the
above conceptions of rights is their failure to explain how reasons acquire
normative force. If membership of a community is dependent on achieving
certain factors then it is not possible for the category of membership to set
any normative standards for deliberation and action. I shall here demonstrate this point in more detail by criticising the two most common forms
of communitarian argument.
The first argument derives from claiming that a reason is whatever we
can predict people in the community will treat as a standard for deliberation and action. The dimension of prediction is supposed to provide for
regularity which aims to re-establish the normative content of reasons.22
Obviously, such an argument will be defective as long as it is supplemented
with an insufficient criterion of prediction: if the criterion is the reason itself
then the argument is circular. If, on the other hand, the criterion of prediction can be set apart from the reason predicted by virtue of its standing on a
distinct, non-normative level, then it may stand, at most, in a causal relation
with the reason. But proclaiming a non-normative basis for a normative
reason will effect a slip into the subnormative level and the deterioration of
the justificatory role of rights.
21 Although I have Herbert Harts version of positivism in mind, I believe that his analysis is mutatis mutandis representative of most contemporary forms of legal positivism. As
regards Harts analysis the most relevant texts are his The Concept of Law (2nd edn, Oxford,
Clarendon Press, 1994), chs 5 and 6.
22 This is the view defended by legal realism and some contemporary versions of Critical
Legal Studies.
158 George Pavlakos

The second argument claims that something is a reason insofar as it has
been validated by the community. The notion of validity is more sophisticated than that of prediction. It rests on the idea that the fact of acceptance
by a community confers normativity on reasons.23 A typical concomitant
of this idea is the existence of a non-normative test for identifying the
community whose acceptance confers normativity on reasons. Such a test
is based on a series of factual criteria that purport to place conditions of
membership on the reason-giving community. Suppose, for instance, that
I am pondering my duties as a parent. The first step is to consider the set
of reasons families accept as valid standards of action and deliberation.
The next step is to identify conditions for family membership (eg degree
of relationship, biological links, and so on) and decide whether I fall under
them. In this setting, the normative force of those reasons depends on the
facticity of their acceptance by the relevant collective (family) plus a series
of criteria of familyhood. The principal problem of such a conception is
that it purports to substitute a formal test of community membership for
a more principled analysis of how and why reasons are accepted by that
community.24 It does this as follows.
The validity conception assumes reasons to be generated at a very basic
level from the fact that a community endorses them. In being basic, this act
of acceptance/endorsement is a non-analysable feature of normativity, or of
what makes reasons standards for action and deliberation. However, such
a view is problematic insofar as it renders reasons dependent upon what a
community happens to think or do at a given time; which in a sense implies
that the community can never be in error. But such a statement would most
definitely run against our intuition that normative reasons possess a degree
of stability and externality that raises them above the most particular of
contexts. So, where can a firmer foundation for reasons be found? Unless
one were to retreat to private mental states or idealised stereotypes were
obtained,25 the next possible point of reference is the set of conditions that
bring about membership in a community. Such conditions have the obvious advantage of affording a high degree of determinability, due to their
descriptive character. By confining ourselves to criteria of membership, the
validity conception is able to identify the space of reasons with certainty:
ie the practice of the community to which those criteria relate. What is
more, one need not go in detail into an analysis of why and how communities validate reasons. It suffices that they do so. Another advantage of
this view is that it renders reasons extremely flexible, for it allows them to
23 This idea lies at the core of conventionalism: that normativity arises from a convention
whose core characteristics are non-normative (random).
24 A principled analysis of acceptance would be required for a demonstration of the normative relevance of reasons, as was pointed out earlier in the introduction.
25 See the introduction above.

adjust to the ways the community adapts to new situations. To put it in a
nutshell, the validity conception explains normativity by delegating it to a
membership formula that is in essence descriptive.
The problem with any such formulae is that, inasmuch as they are disjoined from the reasons that the community accepts as valid standards for
action and deliberation, they are likely to be empty. Instead of being capable
of offering a normative foundation suitable for motivating agents, they end
up representing a random collection of factors which are unable to support
the idea of normativity and justification required by thinking and acting
for a reason. Notably, the most common symptom of this pathology are
so-called hard cases: these are cases where the community is at odds about
the content of a reason, as a result of the unprincipled understanding of
the process of validation. To revisit the example of parenthood, a hard case
would arise if the membership formula excluded same-sex couples where
the issue at hand concerned the right of parents to adopt children. As long
as this right is considered on a validity basis, it would be hard to arrive at
a principled solution, other than quoting or repeating the elements of the
membership formula. But would our doing so constitute a genuine instance
of deliberation/action? In this and similar cases, the difference between acting/thinking for a reason and acting/thinking for no reason (which equates
to no acting/thinking at all!) is not that clear at all. Orienting oneself to
validity might make one aware that there is nothing left with which one
can align ones reasoning and acting.
The Practice Theory
In contra-distinction, the practice theory represents an understanding of
non-individualism which aims to preserve the normativity of reasons: what
is sought here is a conception of reasons that may conceive of their normativity in a principled manner. In steering this course, the practice theory
purports to escape the Scylla of individualism and the Charybdis of shallow
communitarianism. While the menacing face of the Scylla consists in the
failure of individualism to communicate normative standards conceived of
as abstract constructs, the devastating Charybdis of shallow communitarianism disables normativity insofar as, instead of conceiving of reasons as a
matter of reflective knowledge, it makes them a matter of uncritical (random) acceptance or convention on behalf of the community in question.
An attempt to restore the lost normativity of reasons would probably call
for a lengthy line of reasoning. For the purposes of this introductory essay,
I shall confine myself to a rough outline, albeit one that lays down all the
steps of the argument, leaving an in-depth analysis of each one of them for
another occasion.
What marks the practice theory as a healthy version of non-individualism
is its ability to conceive of reasons in a normative manner. As previously
160 George Pavlakos

pointed out, normativity poses two requirements: motivational relevance
and objectivity. The practice theory aims to live up to the challenge of both
of these conditions by connecting reasons to public practices of deliberation
and action. Such practices preserve objectivity because they do away with
the scheme-content dualism pertaining to communitarian constructions of
subjects of rights; on the other hand, practices preserve normative relevance
since, in contrast to prediction- or validity- based understandings of community, they remain responsive to reasons in a manner that is irreducible
to any other type of descriptive, non-normative facts (be they conventions,
predictive data or other). To that extent, it would not be an exaggeration
to argue that normativity is gained through publicity. Finally, in conceiving
reasons and agents at the same level, practices forge a normative understanding of agents as persons (see below).
Objectivity
First, some remarks on the ability of public practices to guarantee objectivity. This ability springs from a decisive rejection of dualism in the form of
the scheme-content dichotomy touched upon earlier. One way to conceive
of the dichotomy is as a distance between two domains: the domain where
reasons are cognised and the domain in which reasons are applied. On this
reading, while reasons (be they mental constructs, rational formulae or
interest-related justifications) can be cognised with reference to a distinct
realm, their application requires a separate intellectual process, consisting
in the matching of cognised reasons with actual situations that are in need
of regulation.26 Such a picture is doomed to failure, since any criteria that
are conceived of outside of the domain they purport to regulate are bound
to lead to radical indeterminacy and the eventual breakdown of the purported regulation. This is the result of almost any effort to restore a link
between criteria/standards conceived of independently of a domain and that
domain.27 Wittgenstein has famously located this difficulty in the effort to
generate additional criteria or standards, which are themselves not open to
ambiguity, and, as a result, capable of pulling off the trick of connecting
the original criteria with the domain they purport to regulate. He argues
that any such effort is bound to lead to a regression of interpretations, for
there are no self-interpreting standards; thus, there will be need each time
for new criteria which represent an external ground for making the required
26 Here, regulation has a broader meaning that also encompasses conceptual regulation, ie
understanding/grasping. See also the discussion of T Williamson in his Knowledge, Context,
and the Agents Point of View in G Preyer and G Peter (eds), Contextualism in Philosophy
(Oxford, Clarendon Press, 2005), ch 4.
27 One can imagine various degrees of complexity depending on the ontology of the stipulated criteria: if eg those are mental states, such as individual or collective interests, they need
first to be communicated to other agents and, secondly, to be connected to the case at hand.

connection.28 This impasse pertains to individualist reasons as much as
communitarian ones, since in both cases reasons are incapable of interpreting themselves; therefore they stand in need of connections with further
criteria of determination.
Contra-positively, practice is in a position to dispose of a dualist understanding of criteria, albeit without discarding the notion of criteria as
normative standards capable of generating objective (or interpersonal)
judgements. This is rendered possible by the fact that the space of criteria,
and therefore reasons, becomes public in a constitutive manner. What is
meant by this is that nothing individuals perceive as a reason can be so
perceived independently of a public practice. An alternative way to make
the same point is to say that reasons no longer require some internal mental component to be matched with the public space of communication and
action, for their appreciation already implies participation in a public space
which is shared between the members of a collective.29
Two consequences are worth mentioning in this context: first, that the
content of our reason-relating mental states (beliefs, memories, desires, etc)
cannot be conceived of independently of practices. My belief in reason R,
far from arising from the matching of a mental component with the world,
is shaped as a result of my partaking of a public practice of depicting
reasons of the relevant kind. Linked to it is the further consequence that
there is no Archimedean or final point of view (be it internal or external
to minds) for validating reasons outside the practice that depicts them. Far
form leading to circularity, this point brings home a new kind of objectivity: as the locus of reasons authority shifts from minds to the public space
of practices, the possibility of error, criticism, improvement and correction
is preserved in the space that separates less good from better understandings of the practice. This space can be represented through the dimension
of depth as one that pertains to practices: in being deep, practices are
not readily fathomable by the subjects who partake of them;30 in other
28 The same problem has arisen at the most abstract level of the problem of connecting
universals and particulars: this is what Plato first identified as the third man argument: seeking
to specify what properties (universals) connect with the particular objects that have them. For
an excellent analysis and a most illuminating survey of the problem in the history of ideas, see
D Davidson, Truth and Predication (Cambridge MA, Belknap Press, 2005), ch 4.
29 This rests on the philosophical view that mental states (beliefs, etc) acquire their contents
as a result of a practice of rule-following (see L Wittgenstein, Philosophical Investigations
(3rd rev edn, Oxford, Blackwell Publishing, 2001); S Kripke, Naming and Necessity (Oxford,
Blackwell Publishing, 1980); J McDowell, Wittgenstein on Following a Rule in A Miller and
C Wright (eds), Rule-Following and Meaning (Chesham, Acumen, 2002)).
30 This does not yet imply that the full depth of a practice is beyond the capacity of knowledge of the agents that partake of that practice: such a view would imply that practices are
(at some level at least) hopelessly elusive, a claim that leads head on to radical indeterminacy
and scepticism (see G Pavlakos, Our Knowledge of the Law: Objectivity and Practice in Legal
Theory (Oxford/Oregon, Hart Publishing, 2007), ch 1).
162 George Pavlakos

words, it will always be possible upon careful reflection to discover that
what someone (or even the community as a whole) perceived all along as a
valid reason for action/deliberation is not actually one, or is one in need of
revision/improvement.31 Two reasons contribute to the dimension of depth:
first, the fact that practices add up to more than the mere aggregate of
individual viewpoints (had the opposite been true, then it would have been
possible to represent the point of the practice just by adding up individual
viewpoints in a linear manner). Secondly, what makes practices deep is a
factor of complexity: practices are complex to the extent that they do not
come on their own but are linked together with a multitude of other practices (often purporting to regulate the same subject matter from a different
point of view) forming an extensive network of action and deliberation.32
It follows that, although there is no external point of view for the evaluation of reasons, the point of view of practice still allows for a degree of
objectivity (externality and stability). In fact this type of objectivity (call it
internal objectivity) might be more effective than the more robust, albeit
highly fragile, objectivity relating to the individual point of view: there the
measure of correctness for reasons was confined to an idealised viewpoint
whose access remained a privilege of individuals; here, no one (not even
an entire community) can claim access to the whole truth. In demarcating a normative (public) space, practices rise above particular individuals
or aggregates thereof, the result being that there remains a lot of room for
discovery and improvement as regards rights-based reasons for action and
deliberation.
Normative Relevance
Most importantly, the rejection of dualism and the attendant avoidance of
indeterminacy lead to a fresh understanding of practice and community,
avoiding interpretations that fall below the threshold of normativity into
the subnormative level of description and prediction. No sooner are reasons plugged into the public space of practices than it transpires that what
is basic, and therefore not analysable in respect of practices, are not factors
31 For this rationalist view of objectivity (one soliciting the possibility to reconstruct criteria of correctness without leaving the particular context of their application), see R Dworkin,
Taking Rights Seriously (London, Duckworth, 1977), pp 15968; also T Burge, Frege on
Sense and Linguistic Meaning reprinted in idem, Truth, Thought, Reason (Oxford, Clarendon
Press, 2006).
32 Most notably, all such practices are circumscribed by the most general practice of language. This ensures for the communication between different types and levels of practice
within a linguistic community but also for the translatability of practices across communities.
See D Davidson, On the Very Idea of a Conceptual Scheme reprinted in idem, Inquiries
into Truth and Interpretation (Oxford, Clarendon Press, 1984); and Pavlakos, n 31 above,
chs 24.

of validation or other prediction-generating data along the lines of shallow
communitarianism but (more interestingly so) is the ability of agents to
respond to reasons. On this understanding, practice is elevated to a reflective activity which requires agents to adduce reasons for the justification of
their thoughts and actions. Any other analysis of practice (such as recognition, convention, etc) fails to preserve reflexivity as a result of its need to
appeal to bridging criteria that purport to connect agents with practice.
Such criteria, however, are doomed to lead to a regression of interpretations
that would undermine the reflective (or normative) character of practice.
Furthermore, holding on to subnormative criteria is bound to undermine
any normative conception of community. For such a conception requires
that the community generate a practice whose participants are engaged in
reflective reason-giving. Remove the reflective dimension and community
becomes devoid of any normative meaning, such that could generate a conception of rights capable of delivering legitimacy and justification in legal
and political discourse.
A most apposite concept for capturing the normativity (qua reflectivity)
of practice is that of the rule. For in order to make best sense of the fact
that our concepts are not formed randomly as a result of a mechanic activity but, instead, in a principled manner, as part of a process of responding
to reasons, it comes as an immense help to conceive of the practice(s) that
shape those concepts as embodying a normative pattern, a rule. Looked at
against the background of such normative patterns, agents appear to be
acting for a reason as a result of their following the rule of the relevant
practice. Thus, partaking of a practice means that one makes the rule of
the practice a standard for ones own agency. The rule indicates when one
has a reason for doing33 something or for refraining from it. In this manner,
a connection between reasons and action is established: when a reason is
established, one is compelled to act in a certain way. In the absence of that
reason, some other action might be relevant. Along these lines, rule-following becomes most apposite for illustrating the normative character of practices, since it best captures the fundamental character of doing something
for a reason (ie fundamental in that it is not possible to go below that level
of analysis). It would seem then that, at long last, we have gained a better
means for formulating what distinguishes normative from non-normative,
as in predictive or validity-based, conceptions of practice:
A conception of practice is normative if and only if it exemplifies the idea of
rule-following.
Thus, the preservation of a normative conception of practice and the kind

of reasons it generates requires that rule-following be placed at the most
fundamental level of practice. Any departure from it (towards criteria that
33
Doing comprises judging here.
164 George Pavlakos

purport to regulate practice from outside, such as individualist, predictive
or validity-based) amounts to a breakdown of normativity.
Adjacent to this reconstruction of communal practice is a normative
explication of agency as personhood: here, as a result of partaking of a
rule-governed practice of action and deliberation, agents are upgraded to
persons. In this context, personhood is a property that derives from the
ability to contemplate reasons and act/think upon them, rather than a collection of a number of psychophysical features of individuals. In this regard,
there is room for further elaboration of the conception of the person: in
the absence of an ultimate, external point of view capable of representing the ideal person, the features of personhood have to be located within
practice, in the special interaction between reasons and agents.
In the following section, two pivotal aspects of personhood are focused
upon: on the one hand, the capacity to partake of reflective rule-following
is demonstrated as bestowing on agents a thin layer of autonomy. On the
other hand, the idea is put forward that agents capable of rule-following
possess absolute value, or are valuable in themselves. In this latter aspect,
agents become autonomous in a robust manner. Notably, the robust notion
of autonomy does not arise until agents capable of rule-following engage
in moral, legal or other evaluative practices. Be that as it may, evaluative
practices are responsible only for the fully-fledged content of autonomy,
not for its core meaning. The latter, as recorded, is already available in the
most general formulation of the idea of rule-following, irrespective of any
practice undertaking concrete evaluations.
A most interesting feature of personhood lies in its capacity to mitigate
the tension between communities and individuals. Persons, as opposed
to individuals, do not stand antagonistically to communities, for they are
already inscribed within a normative explication of rights; ie in order to
conceive of rights as normative propositions, we have to point at a public
practice whose participants are equipped with autonomy, by virtue of their
capacity to make normative sense of that practice. It follows that, by the
time one comes to see or perceive anything as a right, one has already
internalised any normative constraints that personhood might entail. In
the end, given that a normative understanding of rights requires that individuals and communities be reconciled with one another, there is really no
tension between them.
PERSONS AND COMMUNITIES
The shift from understanding rights as private reasons to conceiving of

them as public reasons effects a much deeper transformation of our understanding of agents and their status, one that goes beyond the individualcommunity divide. This transformation is brought home via the concept of

the person. Despite being a feature of individuals, personhood is a normative concept which is linked with a non-individualist conception of reasons.
As such it bridges the gap between individuals and communities34 and
reaffirms the pivotal justificatory role of rights in contemporary normative
discourses.
Roughly put, agents acquire the status of persons by virtue of their capacity to handle reasons.35 This capacity renders them bearers of normative
value for, in handling reasons, they become absolutely valuable, or valuable
in themselves. This transformation, as it were, takes place in two stages.
To begin with, conceiving of practice as rule-governed gives rise to an
understanding of agents, who partake of that practice, as autonomous in a
minimalist sense. Expanding on this minimalist idea of autonomy one can,
in a further step, show that the idea of rule-following effects a fully-fledged
notion of autonomy, one that is capable of underpinning a robust conception of personhood. As noted above, this possibility becomes available only
with respect to evaluative or prescriptive discourses. There, the activity
of rule-following points at universalisation as a requirement of normative
validity, one that upgrades agents to persons by bestowing inherent value
on them (persons as ends-in-themselves).
Rule-following and Minimal Autonomy
In what ways does agents capacity to handle reasons affect their status?
In previous pages, the non-individualist reading of reasons prompted us
to reject individualist as well as communitarian explanations of rights. Of
key importance in this move has been the realisation that such conceptions, in eschewing a normative explication of reasons, run the danger of
falling below the threshold of normativity, ending up engaging in one or
another project of descriptive analysis. In contrast, the non-individualist
reading that was advanced in their place makes the role of public practices
prominent in constituting instances of reflective activity, ie activity that is
performed in accord with a rule.36
No sooner have we moved from non-normative to normative explications of reasons, than reason-giving subjects cease to be either individuals
or aggregates of individuals (as in the case of shallow communities).37 This
34 Albeit with communities that are understood to partake in normative public practices, as
opposed to those imagined by shallow communitarianism.
35 Handling any kind of reason is not sufficient on its own for rendering agents valuable
in themselves. It is only through handling reasons which are specifically practical that agents
acquire absolute value, or so I shall argue below. That said, it is almost trivial to say that,
insofar as agents deal interchangeably with practical and non-practical reasons, they retain
their moral status throughout.
36 Because agents are involved in this activity they end up partaking of reasons.
37 See above regarding individualism and the private conception of rights.
166 George Pavlakos

is best illustrated in the light of the notion of the rule introduced in the
previous section. Rules are especially apposite for thinking of agents as
autonomous, albeit in a very minimal sense, owing to their kinship with
such concepts as freedom and responsibility. Succinctly put, rules imply that
agents are left with a range of choices as regards their application. Choice
entails freedom to the extent that agents can exercise their discretion with
regard to the various possible applications of the rule. Theirs, however, is a
bounded freedom, for agents, in exercising their discretion, remain answerable vis--vis the rule. In other words, agents assume responsibility for their
choice and, to that extent, are prepared to accept criticism or, at least, feel
it appropriate that they be under an obligation to offer reasons for their
choice. It is in this interplay of freedom and responsibility that autonomy
substantiates. Notably, this minimal notion of autonomy, or something
close to it, was highlighted by Kant in his Grundzuege der Metaphysik der
Sitten [Groundwork of the Metaphysics of Morals]38 when he comments
on the capacity to judge.
Its thin status notwithstanding, the wider implications of a minimal
notion of autonomy should not be underestimated: it may serve to establish a more fully-fledged conception of autonomy. Notably, this is the case
when we step into the realm of practical reasons. There, agents use practical
reasons in order to evaluate various states of affairs. Consequently, insofar as they are handling practical reasons, agents acquire the status of an
author and a recipient of value. Postponing a more precise formulation of
the content of that value for the next section of this chapter, it suffices now
to point out that agents, insofar as they are bestowed with value, may be
deemed valuable-in-themselves. Being valuable in oneself is, at least if we
follow the tradition in line with Kants philosophy, the defining characteristic of persons.39
This conception of persons already goes a long way towards bridging
the gap between individuals and communities: Given that rule-following is
a public practice, persons are not hopelessly individualist, for that which
makes them persons (ie the reflective activity of rule-following) is fundamentally public. On the other hand, communities cease to be mere aggregates of
individuals which need to be reconciled with one another; conversely, they
become synergies of persons who possess a normative self-understanding
in virtue of their capacity to handle reasons. Moreover, such reasons may,
38 For the relevant passages, see I Kant, Groundwork for the Metaphysics of Morals
(TE Hill Jr and A Zweig (eds), Oxford, Oxford University Press, 2002), paras 4:447,
4:4534:454.
39 The person, here, is a normative conception, as opposed to the biological or otherwise psychological individual: the person is the subject of rule-following, ie the subject that
can engage with normative reasons emanating from a practice which is embedded within
a collective.

from time to time, dictate that the boundaries of the community be shifted
or that the subjects of rights and duties be redefined.40
Universalisation and Autonomy
There is, at the same time, a more substantive meaning of personhood that
is linked to the fact that persons are bearers of value. Two characteristics
are relevant in this context: first, the value of persons is absolute, in the
sense that they cannot be subjected to or defined through other values.
Secondly, by virtue of being valuable in an absolute manner (ie valuable-inthemselves) persons function as a litmus test for reasons: not every reason
that can be depicted in a public practice may claim normative authority.
The first point concerns the nature/content of the value pertaining to
persons. The second relates to the limits set by the valuable character of
persons on the content of practical reasons. The importance of that second
point notwithstanding, the following discussion deals only with the first.41
To illustrate the absolute value of persons we need to relate the idea of
rule-following to the capacity to universalise practical reasons.42 As we
know from Kants works, agents capable of universalisation possess value
by virtue of that capacity.43 Roughly speaking, Kant takes the principle of
universalisation to demonstrate the rational character of practical reason,
from which it follows that anyone capable of rational thinking is also
capable of practical reasoning. However, given that practical reasoning
is the means for predicating the value of states of affairs, it would follow
that there is no other source of value external to rational thinkers. Hence,
by virtue of their being the only and last instance of practical reasoning,
rational deliberators are rendered the source of all value, which is to say,
they are absolutely valuable.44 This is captured succinctly by Kant in the
formulation of the humanity formula:45
So act that you use humanity, as much in your own person as in the person of
every other, always at the same time as end and never merely as a means.
40 This remark touches upon debates about who can be a bearer of rights. Of great relevance here are debates on group rights: they seem to involve a choice between an independent
grounding of group rights or, instead, a collectivist interpretation of individual rights (see, eg,
the right to partake of a linguistic community).
41 An informative discussion of the constraints imposed by the concept of the person may be
found in the context of discourse theory and in particular the work of Robert Alexy.
42 Thus, our argument as regards the absolute value of persons is confined to practical reasons. It may be possible, nonetheless, to argue that all types of reasons are practical by virtue
of their link with public practices. Even though such argument may be possible, however, it
will not be taken up in the present context.
43 This is the so-called formula of humanity, according to which persons are ends-inthemselves, see Kant, n 38 above, para 4:429.
44 One prominent contemporary defender of this line of argument is C Korsgaard, The
Sources of Normativity (Cambridge, Cambridge University Press, 1996).
45 Kant, n 38 above, para 4:429.
168 George Pavlakos

In view of the above, showing that persons possess absolute value merely
requires one to argue for the truth of the thesis that rule-following relates
to, or entails, a principle of universalisation.46 In other words, if it turns out
that the public practices which give rise to action-guiding reasons involve
an instance of universalisation, then those who partake of such practices
would possess absolute value. But is it possible to argue for a link between
universalisation and the idea of rule-following? (Lest any misunderstanding
arise, the reader should be reminded anew that in tackling this question the
focus is strictly on practices that generate practical reasons). According to a
recent influential interpretation,47 Kant chooses the principle of universalisation as the supreme principle of morality because it is particularly apt in
accounting for the absolute normative character of practical reason. This is
the requirement that an act is correct only if it is backed by reasons that
are inherently normative, ie they are not reducible to any other non-normative criteria.48 Most notably, Kant attempts to capture normativity through
the notion of duty. He argues that, unless acts are performed out of duty,
they cannot be bestowed with moral worth (ie they are not correct). The
notion of duty is further explicated through the law-like structure of principles. It is the law-like form that may give rise to duties, since it is that which
captures the essence of normativity. Thus, acting out of duty means acting
on the basis of a law-like principle because that principle so commands. A
further consequence of this requirement is that which gives an act its value
is not its consequence but the motive enshrined in the principle. Conversely,
if the value of an act depended on its effects then the act would not conform
to the principle but to whatever random outcomes follow from it. But then,
it would not have been performed out of duty. The thrust of this argument is
that in order to understand agency in normative terms we need to relate its
motives to a principle that is intrinsically normative. Kant famously goes to
great lengths to demonstrate that there exists only one principle which can
fulfil the requirements of normativity. In his Groundwork of the Metaphysics
of Morals he formulates this principle as a formal rule of universalisation:49
Act only in accordance with that maxim through which you at the same time can
will that it become a universal law.
46 As a result the connection between the principle of universalisation and the humanity
formula will be taken as a given; however, it should be noted that such a connection is far from
uncontroversial: rather than being commonly accepted by philosophers, the transition from the
former to the latter has been the object of heated debate. Conversely, for a solid defence of the
connection, see Korsgaard, above n 44.
47 See SJ Kerstein, Kants Search for the Supreme Principle of Morality (Cambridge,
Cambridge University Press, 2002), ch 4.
48 See the open-question argument put forward by GE Moore: were we to reduce those
reasons to such non-normative criteria, we would need to provide a further reason or metareason in whose light such reasons would regain normative significance; GE Moore, Principia
Ethica (Cambridge, Cambridge University Press, 1968). See also the recent discussion by W
Fitzpatrick, The Practical Turn in Ethical Theory in (2005) 115 Ethics 651.
49 Kant, n 38 above, para 4:421.

This is, then, how universalisation, or the notion that practical reasons
are normative through and through (in connecting with a principle that
is intrinsically normative), relates to rule-following: Kants explication of
the normativity of practical reasons relates the specific to the general with
respect to the explication of normativity based on rule-following. With
regard to the latter, reasons (practical and non-practical alike) remain normative by virtue of their connection with a public practice of rule-following.
Yet Kants reconstruction of the concept of duty offers a more specific
explanation of the normativity of practical reasons: it states that those
reasons must be related to the law-like structure of a formal principle of
universalisation. Once this relation has been illustrated, it is a small step
to arguing that any public practice generating practical reasons must be
understood as a public practice of universalisation. Such transformation of
the understanding of normativity, aside from illustrating the absolute value
of those who partake of any practice of practical reasoning, also shows the
notion of universalisation in the best possible light. While the Kantian law
of universalisation may conceal a normative test that is hopelessly private
insofar as it is hidden in the heads of individuals, integrating universalisation into public practice renders it a powerful notion which can account for
the normativity of reasons.50
The explication of normative reasons, resting on public practices of
universalisation, guarantees the continuity of practical reason. Although
practical reasons are generated in different contexts by distinct practices
(law, morality, ethics, etc) the idea of universalisation helps to bring out the
rationale which is common to all of them. Thus, despite differences between
various types of reasons (be they legal, moral or otherwise practical) it is
possible to relate them to one another as a result of their being instances or
outcomes of a practice of universalisation.51 In substantive terms, this results
in a claim that all such reasons must respect the idea of personhood, which
attaches to any practice of universalisation. To that extent, the idea that
agents who partake of a public practice of universalisation are absolutely
valuable constitutes a material constraint vis--vis the content of practical
reasons: no reason that infringes upon the absolute value of persons may
50 For an account of the requirements of normativity, see the introduction above. Such
an explication of normativity as being based on a public practice of universalisation that is
essentially deliberative has been developed by discourse-ethics within moral philosophy and
the discourse theory of law with respect to legal theory. Those theories accept that an action is
correct when it is justified through a valid reason. Reasons are valid when they can be accepted
on the basis of a general discursive test of universalisation. In contrast to the model developed
in this chapter, discourse theory does not explicitly address the issue of rule-following and
practice. I believe that this could easily be supplemented so that the theory would avoid the
accusation of individualism.
51 This seems to be in tune with the idea that law is a special case of practical reasoning,
which is an increasingly common thesis amongst non-positivist legal theories. See eg R Alexy,
The Argument from Injustice (Oxford, Clarendon Press, 2002); R Dworkin, Justice in Robes
(Cambridge, MA, Harvard University Press, 2006), Introduction; Stavropoulos, n 9 above.
170 George Pavlakos

be permitted. Such infringement would be assumed to take place any time
persons were prevented from partaking of the practice of universalisation,
or even when reasons for action would consistently fail to satisfy a public
test of universalisation. In that respect the concept of personhood, as one
that is intertwined with the idea of universalisation, cements practical reason, by grouping together the various types of practical reasons.
CONCLUSION
This chapter began by diagnosing a crisis in the legitimating role of rights

in contemporary normative discourse. Subsequently, it was argued that that
crisis arises from a philosophical confusion surrounding the role of rights as
normative reasons. In dispelling the confusion, an account of reasons was put
forward that attempted to capture the normativity of such reasons by relating
reasons to a reflective public practice. Two key outcomes were identified as a
result of this explication: first, that normative practices are instances of rulefollowing; and secondly, that agents partaking of normative practices possess
absolute value (ie acquire the status of persons).
In light of this explication, rights acquire the status of the most general
reasons that purport to guarantee the content of personhood by specifying
and safeguarding conditions which enable agents to participate in public
practices of universalisation. Truth be told, rights are far from well-defined
formulae, as they themselves are subjected to a practice of universalisation,
whose outcomes are not given a priori. However, the content of rights cannot remain random but must conform to the minimum requirement that
those who partake of public practices possess absolute value (ie enjoy the
status of persons). It follows that rights must be capable of guaranteeing the
status of persons so conceived, which is to say, they must be able to guarantee that agents may continue to be free and equal participants in a public
practice of generating normative reasons. In undertaking this task, rights
retain their central legitimating role in contemporary normative debates on
justice and good government.
SELECT BIBLIOGRAPHY
Alexy, R, The Argument from Injustice (Oxford, Clarendon Press, 2002)
Burge, T, Frege on Sense and Linguistic Meaning reprinted in idem, Truth,
Thought, Reason (Oxford, Clarendon Press, 2006)
Davidson, D, Truth and Predication (Cambridge MA, Belknap Press, 2005)
, On the Very Idea of a Conceptual Scheme reprinted in D Davidson, Inquiries
into Truth and Interpretation (Oxford, Clarendon Press, 1984)
Dworkin, R, Taking Rights Seriously (London, Duckworth, 1977)
, Justice in Robes (Cambridge, MA, Harvard University Press, 2006)
Fitzpatrick, W, The Practical Turn in Ethical Theory in (2005) 115 Ethics 651

Hart, HLA, The Concept of Law (2nd edn, Oxford, Clarendon Press, 1994)
Kant, I, Groundwork for the Metaphysics of Morals (TE Hill Jr and A Zweig (eds),
Oxford, Oxford University Press, 2002)
Kerstein, SJ, Kants Search for the Supreme Principle of Morality (Cambridge,
Cambridge University Press, 2002)
Korsgaard, C, The Sources of Normativity (Cambridge, Cambridge University
Press, 1996
Kripke, S, Naming and Necessity (Oxford, Blackwell Publishing, 1980)
Laden, AS, Evaluating Social Reasons: Hobbes versus Hegel (2005) 102 Journal
of Philosophy 327
McDowell, SJ, Wittgenstein on Following a Rule in A Miller and C Wright (eds),
Rule-Following and Meaning (Chesham, Acumen, 2002)
Moore, GE, Principia Ethica (Cambridge, Cambridge University Press, 1968)
Pavlakos, G, Our Knowledge of the Law: Objectivity and Practice in Legal Theory
(Oxford/Oregon, Hart Publishing, 2007)
, Communitarianism in New Oxford Companion to Law (Oxford, Oxford
Stavropoulos, N, Objectivity in Law (Oxford, Clarendon Press, 1996)
Williamson, T, Knowledge and its Limits (Oxford, Oxford University Press, 2000)
, Knowledge, Context, and the Agents Point of View in G Preyer and G Peter
(eds), Contextualism in Philosophy (Oxford, Clarendon Press, 2005), ch 4
Wittgenstein, L, Philosophical Investigations (3rd rev edn, Oxford, Blackwell
Publishing, 2001)
Part IV
Rights in Context
8
Are Women Human? Prostitution
and the Search for the Right Rights
REBECCA PATES
PROSTITUTION AND WOMENS RIGHTS
n 2002, a new type of exploitation racket that would affect hundreds

of thousands of women was introduced in Germany. Women providing
sexual services were now to be pimped by the state, ie, to register as
business holders, pay into the pension, unemployment and health insurance schemes and finally enter the realm of the respectable professions.
This new exploitationor access to respectability, depending on ones
standpointwas achieved by changes in a law concerning prostitution:
the law-makers wanted to align the law with public opinion, they said, by
aligning the profession with others, and giving sexual service providers the
rights they had long been due.
The new law, generally called ProstG (short for Prostitutionsgesetz, ie,
Prostitution law), brought German federal legislation in line with demands
by prostitutes lobbying organisations. They had argued that the short,
miserable and poor lives women in prostitution often led were due to their
low status and particularly their economic and social situation. Some hold
the state directly responsible for womens plight, at least in the sense that it
is complicit in its perpetuation, as the feminist jurist Catharine MacKinnon
argued in her recent book Are Women Human?:1
The abuse of the women described was not official in the narrow sense at the
time it happened, but its cover-up, legitimization, and legalization after the fact
were openly so. The lack of effective remedy was entirely official. The abuse was
done, at the very least, with official impunity and legalized disregard. The abuse
is systematic and known, the disregard is official and organized, and the effective
governmental tolerance is a matter of law and policy.2
1 C MacKinnon, Are Women Human? And Other International Dialogues (Cambridge,

MA, Belknap, 2006).
2 Ibid p 25.
176 Rebecca Pates

If it is the states function to safeguard its subjects against human rights
violations, the states complicity in human rights violations against women
means that in fact (if not in law) women are not considered human,
MacKinnon argues.3 Thus, if women are to be elevated to the status of
real human beings, the state and its institutions must start to improve on
their record in serving women. As Koen De Feyter has argued in Chapter
1, this could mean a number of different things, even if we are agreed that
the states duties to women are tied to the conferring of rights. Notably, the
type of right to be conferred can range from political (eg representation in
public institutions), to economic (eg concerning welfare reforms targeted at
single mothers), to social (eg ensuring access to social security for disadvantaged women). For MacKinnon, it means the state must start to implement
a social rights programme targeted specifically at women, as it is the social
(rather than the political) sphere in which womens rights are abrogated
with the greatest injurious effects on them.
What the conferring of economic and social rights means concretely is that
equality and non-discrimination are extended to minorities and women; it
includes access to employment opportunities, safe working conditions, social
security, healthcare, education and an adequate standard of living. As arguably economic and social rights issues affect women differentially, a legislature
interested in remedying womens lot should improve the general implementation of social and economic rights. These rights are particularly crucial for
women, because women are in many cultures relegated to the private sphere,
and the private is a space in which public authorities rarely intervene.
The extension of social rights to prostitutes in Germany was the focus
of an intensive lobbying campaign by the professional sex workers association Hydra, although they came to a very different conclusion than
MacKinnon. They have argued that social rights for prostitutes does not
entail the prohibition of the activity, but the extension of social services
usually offered to wage earners to those offering sexual services. What this
shows is that applying human rights to women is no simple matter. First,
the debate on prostitutes social rights highlights that conferring rights on
3 MacKinnons argument is highly controversial. It could of course be the case that the
theories of law and its practice do not coincide. Some critics have gone further, however: It
has been argued that MacKinnon is committing a category mistake in her argument: the group
of women may be being treated less well than the concept of human rights requires, and thus,
as not-quite-human, but that is not to say that the concept woman is that of someone who
is not human. C King, Category Errors (2006) 26 TLS. If MacKinnons argumentation were
seen as a species of static nominalism (I Hacking, Making Up People (2006) 28 LRB 23),
it might be more persuasive. Static nominalism is the view that classifications of individuals
affect the people classified by changing them (intentionally or not). Thus, people classified
as having no human rights might behave, and engender behaviour in others, commensurate
with this low status. In contrast to MacKinnon, I am not here assuming that women are a
group, but prostitutes are treated as a group, even if not in the usual sense used in the term
of group rights.
Prostitution and the Search for the Right Rights 177

a particular social group does not lead to obvious policy implications by a
simple deductive process. Secondly, we shall see that the attempt to confer
human rights on women implies policies that in turn contribute to the gendering of women and men: depending on how a right is applied to women,
they will, through processes of dynamic nominalism (Hacking), undergo
different processes of personhood.
Dynamic nominalism refers to a process by which the subjects of classifications react to their being classified in such a way as to, in turn, affect
the classifications. As Nietzsche put it in the Gay Sciences:
There is something that causes me the greatest difficulty, and continues to do so
without relief: unspeakably more depends on what things are called than on what
they are Creating new names and assessments and apparent truths is enough
to create new things.4
Ian Hacking has showed dynamic nominalism in the healthcare sector. In his
study on people with multiple personality disorders, he showed that as the
tendency of professionals to classify clients as having multiple personalities
grew, the tendency of patients so classified to develop more personalities,
and to identify with the classification, grew exponentially. This is not to say
that those patients were not so classifiable, or incorrectly classified, but
first, that they would not have been so classifiable at different times in history or in different cultures,5 and secondly, that classifications are part of a
looping effect that help to produce the subjects so classified.
The looping effect has been the subject of many gender theories, for gender is not the result of a biological imperative (although certain socially
relevant biological attributes do, of course, as a rule correlate with the dichotomously thought chromosomal, endocrinical and external sex). Rather,
people do not have a gender, but are gendered through a culturally and
historically (and class, culture, ethnicity and religion-specific) set of processes. Again, this is not to say that women are not women, but that they
cannot but react to the classifications open to them within their particular
context. I shall try to show the gap between rights discourses, their legal
implementation, and their implementation by state employees with regards
to those classified as working in the sex trade.
The German sex workers lobbyists Hydra had argued that the provision
of sexual services is based on the right to self-determination, ie, the right
to non-interference in terms of deciding what to do with ones body. The
German legislature conceded the point, and the law on the exploitation of
prostitutes (that prohibited the facilitation of prostitution and made brothel
managers legally culpable for providing acceptable working conditions,
4 Quoted from F Nietzsche, The Gay Science, translated by W Kaufmann (NY, Random
House, 1974) Aphorism 58 in I Hacking, n 3 above.
5 I Hacking, Rewriting the Soul: Multiple Personality and the Politics of Memory (Princeton,
Princeton University Press, 1998).
178 Rebecca Pates

for example) was concomitantly changed in 2002. Living off the proceeds
of prostitution is now only punishable by law if the prostitution occurs
against the womans will, ie, when the prostitutes are kept in a situation
of dependency and through pressure hindered from developing their selfdetermination or independence.6 This argument is not specific to Germany,
a French sex workers lobby group has argued similarly:
the right to ones body must be defended, and passive soliciting must in no case
be criminalised. Situations where sex and material gain are connected abound in
social life: interest-based marriages, exchange of sexual favours for professional
advantage follow a similar logic to prostitution, without the same visibility.7
In these arguments, sex workers lobby groups thus defend two sorts of
rights: a liberty right, which is a right that protects freedom of movement,
belief, expression and association, and thus, the right to determine what type
of services to perform, even if these seem unpalatable, immoral or inimical
to a persons development in the eyes of others. Just as there is no prohibition of teachers exchanging ideas with students for financial gain, there
should be no prohibition of exchanging bodily fluids with customers for
similar reasons. Secondly, the lobby groups argue that sex workers equality rights should be respectedequality rights guarantee equality before
the law, non-discrimination and equal citizenship. As the state does not
as a rule intervene in the choices adults make as to whom they choose to
exchange sexual favours with, nor for what reasons they do so, the pursuit
of financial gain through sexual services should not be intervened in either.
So the German and French prostitutes lobby groups argued that prohibitive
practices be abrogated in order for these two groups of rights to be rightfully extended to prostitutes. In Germany, legislators were swayed by these
arguments, and the new law on the recognition of prostitution was intended
to align prostitution with other legal professional activities while advancing
prostitutes liberty and equality rights.
Despite the lobbyists juridical success in Germany, the goal of elevating
womens status as rights bearers is often understood as having quite the
opposite implications; not everybody agrees that these new achievements
contribute to the improvement of womens rights. The strongest way the
objection to the new law has been put is by a Swedish government publication, claiming that the German state is strengthening the lack of rights of
all women through furthering (rather than minimising) the stigmatisation
of prostitutes:
Prostitution is an aspect of male violence against women and children. It is
officially acknowledged as a form of exploitation of women and children
6 ProstG Explanatory Statement, Drucksache 14/5958 (Berlin, Deutscher Bundestag,

2001), p 5.
7 Collectif femmes de droits, droits de femmes, Manifesto (Paris, nd).

that constitutes a significant social problem, which is harmful not only to the
individual prostituted woman or child, but also to society at large Gender
equality will remain unattainable as long as men buy, sell and exploit women and
children by prostituting them.8
This argumentation too makes use of rights-based arguments, but from

this perspective, sex work is not an issue of social or economic but of
security rights that protect people against crimes such as murder, massacre,
torture and rape, activities it is the duty of government to protect against:
for prostitution is demeaning to all women, and each time a woman is
bought,9 all women are thereby degraded by the reproduction of a relation
of subordination and domination. Each is unwittingly participating in the
micro-enactment of a social hierarchy, even though she may be believed
to have consented to the action itself. Thus (so the argument continues),
if the right to equality is to have any meaning at all, the state must ensure
that the micro-enactments in gender hierarchies be prevented. Hence, all
members of society must be prevented from engaging in this sort of activity
in order to guarantee all womens security and the termination of systemic
relations of domination.
One problem with this argument is that if prostitution is akin to a violation of security rights, it is puzzling that so many women would claim to be
engaging in prostitution, if not as a profession, then at least as part of what
they sometimes do in order to earn a living, voluntarily. Thus, an explanation has to be given as to why women think they choose to be harmed.
One option is to argue that agreement to prostitution is a symptom of their
prior exploitation, as MacKinnon argues elsewhere:
Women who are compromised, cajoled, pressured, tricked, blackmailed, or outright forced into sex often respond to the unspeakable humiliation by claiming that sexuality as their own. Faced with no alternative, the strategy to acquire
self-respect and pride is: I choose it.10
The prostitutes rights associations are, according to MacKinnon, thus

involved in a classic case of Sartrian bad faith: they know that they are
unwittingly supporting their own oppression but are denying it.
Whether the Swedish or the German perspectives are correct is not to the
point here. This example serves to show that we can find types of rights that
make each sides claims (in favour of the normalisation or the prohibition
8 M Jacobson, Why Do Men Buy Sex? (2002) 1 Nordic Institute for Womens Studies and
Gender Research Magazine 24.
9 This argument is always put in the passive, as women are deemed victims of patriarchy,
rather than freely choosing agents; for a justification of this, see eg S Jeffreys, The Idea of
Prostitution (Melbourne, Spinifex, 1997).
10 C MacKinnon, Towards a Feminist Theory of the State (Cambridge, MA, Harvard
University Press, 1989), p 149. See also Jeffreys, n 9 above.
180 Rebecca Pates

of sex work) seem defensible.11 It seems, then, that rights discourse is very
much en vogue, that governments and lobby groups can explain what they
do in terms of rights, but also (as this case makes clear) the harshest and
the most liberal sex laws in Europe can be defended within the discourse
of human rights about which the governments in principle agree. If human
rights can imply a proposition and its opposite, does this make rights discourse communicatively meaningless, perhaps a means to establish oneself
as well-meaning without any concrete implications?
SE Merry has recently shown that rights function as universalist propositions, which, like other law-like rules, have to be translated12 in order to
be applied. Application of rules require that the cases or classes of issues
to which the rights rules are to be applied are subject to classifications,
problematisations, theories of causation and the sense of purpose of the
administrators.13 Examples of classifications are culturally and historically
specific, as D Kulick has shown in the example of Sweden with regard to
male clients of sex workers. Sweden passed a law in 1999 prohibiting the
purchase of sexual services. The discussion around sexuality that led to
this prohibition had involved a substantive view on good sexuality and
the concomitant pathologisation of men who purchase sexual services and
of women who offer them. D Kulick had argued that the Swedish laws
produced classifications according to which sex workers are traumatised
victims; clients are psychologically disturbed men.14 He argued that this
was but a further development that had started with the pathologisation
of gay men in the nineteenth century, when a certain type of behaviour
through being subject to investigation by experts became unintelligible and
was reduced to a psychological aberration. M Foucault argued that through
professional scrutiny, homosexuality had changed from a temporary aberration of behaviour to a species with a personage, a past, a case history, and
a childhood, in addition to being a type of life, a life form.15 According to
Kulick, clients of sex workers have also become a species due to the intense
expert scrutiny of their behaviour. The classification of female prostitutes
in the Swedish model is thus a classification of a group of women as (not
necessarily innocent) victims (and perpetuators) of patriarchy.
11 Other than the three types of right mentioned in the text, there are political rights, due
process rights and welfare rights. The extension of welfare rights to prostitutes was one of the
main stated aims of the German Prostitution Law.
12 SE Merry, Human Rights and Gender Violence: Translating International Law into Local
Justice (Chicago/London: Chicago University Press, 2006).
13 According to M Valverde and N Rose, the analysis of problematisation means asking
how does a particular problem come to emerge as a target for government, and what role
is played by institutions, functionaries, and calculations in this?: M Valverde and N Rose,
Governed by Law (1998) 7 Social and Legal Studies 545.
14 D Kulick, Four Hundred Thousand Swedish Perverts (2005) 11 GLQ 226.
15 M Foucault, The History of Sexuality I (Harmondsworth, Pelican, 1981), p 43.

This classification is quite distinct from the German classification of sex
workers. The German juridical stance amounts to the view that women are
self-determining agents who choose to engage in sex work as they might
have chosen to become secretaries or childcare workers, although they need
to be particularly protected against the possibility of exploitation (hence the
only partial abrogation of pimping laws). In order to elicit the changes in
the professions status, the new law changes the terms in which participants
in these services are referred to: the words prostitute and john (Freier)
are eliminated; we now only have providers of sexual acts and clients.16
If Hackings thesis of dynamic nominalism is correct, we can thus expect
German sexual services to have a tendency towards professionalisation,
thus, for more members of the middle classes to enter the profession,17 and
for sex work in Sweden to be chosen by members of more marginalised
population groups.
RIGHTS AS A CULTURAL (POLITICAL) PRAXIS
Classifications of persons are a prerequisite for the applicability of rights,

as people first have to be classified as bearers of certain rights before
they can be applied to them. But there are further intricacies in the application of rights. If legal anthropologist SE Merry is right, the law of human
rights is a cultural practice: it consists, first, in a legal system that articulates normative visions of a just society; secondly, in a local application of
these visions mediated through local cultural understandings and actions.18
The major convention governing womens rights is the Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW). It
was developed during the 1960s and 1970s and put into force in 1981.
By 2004, it had been ratified by 178 countries, indicating widespread
global support: Human rights policies reflect international consensus,
and even though they are not legally binding, they exert considerable
moral force.
The way human rights conventions come about are through a process
in which consensus is sought, a process that boils down to debates about
16 M von Galen, Rechtsfragen der Prostitution (Mnchen, Beck Juristischer Verlag,

2005).
17 There are some indications that such a tendency is in fact taking place in the United
States after decades of movies providing the classification of sex work as respectable work,
at least as long as it is engaged in for a brief duration. The Hollywood version of sex work
(Working Girls, Flashdance, Pretty Woman) shows upwardly mobile working women who
are portrayed as independent and pragmatic, and there have been a slew of books by college graduates depicting their lives in the trade: Heidi Mattson, Ivy League Stripper, Shawna
Kenney, I was a Teenage Dominatrix, Jeanette Angell, Call Girl: Confessions of an Ivy League
Lady of Pleasure
18 Merry n 12 above, pp 2289.
182 Rebecca Pates

phrases. The outcome is a long and convoluted sentence, such as the
following:
[governments should take action to] create and maintain a non-discriminatory and
gender-sensitive legal environment by reviewing legislation with a view to striving to remove discriminatory provisions as soon as possible, preferably by 2005,
and eliminating legislative gaps that leave women and girls without protection of
their rights and without effective recourse against gender-based discrimination.19
The phrase is remarkably vague and convoluted, but it is precisely its relative meaninglessness that is a prerequisite for the possibility of consensus;
for its emptiness means that a single document can be agreed upon despite
considerable disparities in opinions about womens roles in society and the
states role in guaranteeing their safety. In practice, consensus occurs not
when all agree, but when no further objections are raised:
Word-smithing produced a single document despite gaping disparities in views
about womens place in society. The surface of the text papers over intractable
differences.20
Reaching consensus comes at the cost of clear sets of rights, and yet it is
necessary because human rights law is law without sanctions: the United
Nations has little power to coerce submission as there is no international
mechanism for sanctioning states which violate the policy recommendations of UN documents. Thus, decisions are effective only if they have been
reached by consensus. The policies then set important standards for prestige
and enhancing trade and aid relations.
The outcome of the consensual process is that proposals are added to
one another, producing repetitive and unwieldy texts, to qualify strong
sentences, and to change timelines of action to vague recommendations. Another implication is that some issues are effectively blocked
by a few countries from inclusion in the conventions, such as reproductive and sexual rights and the recognition of sexual diversity. These sets of
issues are, as a rule, opposed by the Vatican (which, while not a country,
has a seat on the United Nations) in an alliance with the global South
and, recently, the United States: womens rights and gay rights are seen to
threaten family values, and these in turn are fundamental to religion and
culture.
The general rules arrived at through the UN process then have to be
applied locally, to particular issues. This local application has to proceed
through a translation process. First, the abstract issues of human rights
need to be applied to local problems, using local conceptions and narratives. Secondly, structural conditions have to be amended to allow for
19
20
A/RES/S-23/3: 21, para 68(b).

Merry, n 12 above, p 42.

human rights complaints to be heard, investigated, and the problems solved.
Thirdly, the target population is also redefined,21 and I take it that it was
MacKinnons point that this does not happen in a satisfactory enough fashion. New groups of people are now deemed proper targets for state intervention: the inclusion of violence against women in the list of offences, for
example, has allowed for states to intervene in domestic affairs on behalf of
women, whereas domestic arrangements had hitherto been deemed to be a
purely private matter.
Similarly, the granting of liberty rights to prostitutes allows for entirely
new forms of state intervention in the realm of prostitution: rather than the
state fining, relocating and retraining them, it can now make sex service
providers register as professionals, pay income tax, pay for their health,
work and social insurance. Rather than being clients of social workers
they are a now sought after clientele of trade unions. Rather than being
parts of narratives of oppression and exploitation, the profession is now
increasingly portrayed in popular culture as a viable option for the middles
classes.
LOCAL EPISTEMOLOGIES AND CREATIVE HYBRIDITY
Rights might be granted by UN conventions that have to be ratified by

individual governments, but they are necessarily implemented locally, generally by local state officials (police officers, healthcare and social service
providers, prosecutors, etc). That general rules cannot be applied in terms
of a mechanistic if-then process has been shown by legal anthropologists:
there is always some leeway in the interpretation of laws. Thus, processes
of implementation are always also processes of localisation: depending on
the context, a text (such as the ProstG, or a CEDAW right) can evoke different reactions:
Minor officials produce quick judgments about what disorders will or will not
be tolerated by creatively combining a bit of second-hand expert knowledge with
a job-based sense of customary norms and a more or less intuitive sense of what
the public good requires in particular cases.22
This combination of communal norms and expert knowledge has been

called creative hybridity23 and will produce different interpretations of
the laws based on different assumptions about communal norms, as well
as different degrees and types of expert knowledge. They also depend on
culture.
21
Ibid p 136.
M Valverde, Laws Dream of a Common Knowledge (Princeton, Princeton University
Press, 2003), p 53.
23 D Moore and M Valverde, Maidens at Risk (2000) 29 Economy and Society 527.
22
184 Rebecca Pates

NUANCES OF CULTURE
Human rights discourse comes about through prior understandings of

values that are immanent to an international culture of well-educated
participants in UN discussions. These understandings include cultural
values, and yet, in turn, human rights culture is to influence culture at
a local level. As Merry has pointed out, the term culture is used in two
ways in UN debates, depending on the goal of the speaker: First, the term
is used in arguments against the granting of certain rights as being against
the customs, traditions or culture of a particular state that are presented as
essential to the continued existence of that state; for example, if rights are
to challenge womens subordinate position in the family or the workplace,
those whom this threatens will argue that established hierarchies will be
disturbed and national identity jeopardised. It is the German romantic
notion of culture at play, as expressive of Volksgeist24 that is deemed to be
the basis for a fundamental right to indigenous sovereignty. Culture is seen
as fundamentally unchangeable.
The second use of the term culture refers to the habits, thoughts and
customs of rural or urban minorities that are represented as repressive
and that can be superseded by the culture of human rights. Here, culture
is used in an evolutionary sense, as a means to move ethnically defined
subjects to the realm of right-bearing modernity.25 As historians have
shown,26 tradition is often created for political purposes. In this use of
the term, it is sometimes used as a way of racialising minorities without
using racial terms.27 But the third meaning of culture is just that it is
a set of beliefs, values, practices, including institutional arrangements,
political structures and legal regulations that are hybrid and changeable,
negotiated in political battles, and changes as institutional arrangements
change.28
In this third sense, laws are both expressions of a culture and a way of
changing it, and a way of explaining differences in Swedish and German
law. For in this view of culture, the interpretations of rights are in both
cases correct: there are, however, no rights as such, before interpretation at
a local level. Everything global takes place locally: as B Latour has pointed
out, when there is talk of global structures, you can usually ask in which
24 N Elias, The Civilising Process: the History of Manners and State Formation and
Civilisation (Oxford, Blackwells, 1978), p 39.
25 L Volpp, Blaming Culture for Bad Behaviour (2000) 12 Yale Journal of Law and
Humanities 110; JL Comaroff, Reflections on the Colonial State, in South Africa and
Elsewhere (1998) 4 Social Identities 63.
26 E Hobsbawm and T Ranger (eds), The Invention of Tradition (Cambridge, Cambridge
27 Volpp, n 25 above.
28 P Chabal and J-P Daloz, Culture Troubles: Politics and the Interpretation of Meaning
(London, Hurst, 2006).

office the decisions take place.29 So rights are necessarily local, and so are
women.
DOING GENDER, DOING ETHNICITIES
MacKinnon had claimed that in terms of being treated as such, women are
not human. What, then, makes a woman? After womens equal participation in the political and social had been legally established in most European
and North American countries after the Second World War, scholars interested in womens equality noted that all was not well: the declarations of
legal equality had not born fruit. Thus, in the 1980s, theories concerning
politics of difference of women from men predominated: women were
deemed to have a different ethics from men (C Gilligan), to have different
psychologies (N Chodorow), different interests (Marxist feminists, eg M
Barrett), and due to these (valuable, if undervalued) differences, women
were deemed not to be so much in need of equal treatment, as that would
use the male as norm for women, a norm that would perpetuate their
inequalities. If, for example, all employees are to be treated equally, and
only women become pregnant, then the mandate of equal treatment would
not allow for special consideration for pregnant women, as that would
imply unequal treatment. The implications are, however, strong generalisations often sliding into a type of universalism about womens nature, which
have been strongly criticised in the light of anthropological and sociological evidence of the social and historical specificity of gender. If all women
are demure, then either non-demure women are not real women, which
renders gender theory moot, or it becomes impossible to generalise about
what women are really like. Even though such generalisations are to be
avoided, gender scholars have tried to explain the ubiquity of womens differential status across societies. Women, it was clear, were similar to each
other in one respect (biological difference, sex) and different from each
other in others (cultural difference from men and from women in other
classes, cultures, eras, ethnicities, religions, etc, gender). Thus, not only are
women not different as such, but they are not mere victims of a patriarchal
plot: rather, women and men are not passively gendered, but participate in
the process of being men or women.
There are two main theories concerning the manner in which such a
process of becoming women or men is deemed to work:30 the discursive
29 B Latour, Reassembling the Social: an Introduction to Actor-Network Theory (Oxford,

Oxford University Press, 2005).
30 M Weber, Soziale Konstruktion von Geschlecht: Entwicklung der Debatte in H RichterAppelt and A Hill (eds), Geschlecht zwischen Spiel und Zwang (Gieen, Psychosozial-Verlag,
2004), p 44.
186 Rebecca Pates

theory and the doing gender theory. The discursive theory is usually a
form of nominalist theory according to which the social world is produced
through language, and according to which there is no extra-linguistic reality.31 This is not to say that there are no such things as women, men or
natural differences between them. It is to say that the proper question is
how they come to be: whether they are the way they are in a manner that
could be described as beyond society, as supra-historical and universal, or
whether they are integral parts of a particular way of life.32 Proponents of
the doing gender theory33 argue that gender is not something we have, but
something that is the outcome of everyday interactions and judgements.
Either way, it does not make sense to ask what the differences are between the genders. What needs to be asked is how differentiations among
the genders are made. In order to analyse the politics of human rights with
regard to gender, we need to investigate what they purport to change, ie, at
the classifications that come about, on the one hand, and how the administrators of law in fact understand these classifications in practice, as it is in
the local that the global must be sought.34
CLASSIFICATIONS AND LOCALISATIONS
So how are genders produced through the German prostitution law? Are
more rights conferred to a group of people to whom rights had previously
been withheld? In other words: did the change in laws have any noteworthy impact from a human rights perspective? We might not care too much
about prostitutes, but recall that this is a test for the practicability of legal
change: a lobby group had identified a particular social problem and had
recourse to human rights discourses in order to remedy the social problem. I
have showed how the rights perspective need not have been successful in the
sense intended by the lobby group at the legislative level. The lobby group
(to the dismay of Swedish and American law-makers) was, however, successful, a law was passed, and it guaranteed rights to a group of people that had
hitherto been devoid of these rights. What needs to be investigated, then,
is whether the theoretical granting of rights led as a matter of fact to these
people having more rights than they had previously had.
31 The discursive theory tends to be attributed principally to Foucault, n 15 above; J

Butler, Gender Trouble (London, Routledge, 1993); S Hirschauer, Konstruktivismus und
Essentialismus. Zur Soziologie des Geschlechterunterschieds und der Homosexualitt (1992)
5 Zeitschrift fr Sexualforschung 331.
32 Hirschauer, n 31 above, p 334.
33 H Garfinkel, Studies in Ethnomethodology (Englewood Cliffs, Prentice Hall, 1967);
C West and D Zimmermann, Doing Gender in J Lorber and S Farrell (eds) The Social
Construction of Gender (Newbury Park, CA, Sage, 1991).
34 Merry, n 12 above; Valverde, n 22 above.

I have shown how laws usually operate through classifications, and that
classifications of people in the realm of the sex industry might lead to different identities because of the looping effect. The law at issue here is as such
gender neutral, so that it does not perpetuate any classifications pertaining
to the extreme vulnerability of women or the social dominance of men (in
contradistinction to the Swedish law on prostitution summarised above).
In the course of our research projects, we have found, however, that the
juridical deregulation of the sex industry has led to an increased regulation
of women in the sex industry, partly because the law was applied only to
women.
Police officers, public order officers, internal revenue officers, social
workers and public health department employees who deal with prostitutes have stated in interviews that the law is meant for female prostitutes.
The state does not in practice classify men as prostitutes at all. Indeed,
most officers acknowledged that they knew of male prostitution that
occurred in their territory that met the usual criteria for a legal intervention
to be legally required; that is, sexual acts occuring in public and causing
irritation; those occurring in proximity to a school; where clients are wont
to harass neighbours; or there is a regular littering of condoms. If these
criteria are met by female prostitutes, a slew of interventions is common:
public order officers issue tickets, police officers move them along or check
their identities, social workers and public health department employees
seek them out, and so on. None of this occurs when the prostitutes are
men: Even though all the usual reasons apply that permit state intervention, the officers claim we only go there, we only react if there are complaints. We wouldnt go there voluntarily. Women, on the other had, are
monitored very closely, and very willingly so. Raids on bordellos always
elicit particularly enthusiastic volunteering on behalf of the tax officers,
for example:
Well I mean, here at the office I am always grateful and so far we have never had
a problem with the colleagues. It happens to be an interesting subject and we have
never had to force anyone to do an extra shift. Well, if there had not been enough
volunteers, we could have said, well, you do have to do this, you know but it
has been no problem at all: the young people are very motivated and we can put
our teams together [for a raid on bordellos] with no problem.35
The contrast between the highly motivated civil service employees who like
to raid bordellos with female prostitutes and their extreme reluctance to
assess situations in which male prostitution takes place is a telling gendering
of the application of the law.
35 The interviews quoted here were conducted after the introduction of the ProstG as part
of a research project called The Administration of Prostitution funded by Saxonys HWPProgramme (200406) at Leipzig Universitys Political Science Department.
188 Rebecca Pates

As I mentioned earlier, given the language of the ProstG, one might expect
that the classifications of prostitutes is at least (insofar as the prostitute is
working within the confines of the law, ie has proper working papers, and
so on) partially one of professionalisation.
Why should female sex workers be regulated at all after the introduction of a law that was to establish the normalcy of their trade? The law
prescribes that people who provide sexual services be treated by law like
other employees,36 except that safeguards are built in that are meant to put
up barriers to their exploitation (this is not so for workers in the garment
industry, teaching or secretarial work). In contrast to earlier law, prostitutes
are not saved from prostitution but are saved in prostitution, ie the best
possible working conditions are supposed to apply to them. The implication is that sex workers are to be safeguarded against exploitation or undue
influence, which means that womens social and economic independence
must not be inhibited. Thus, not the service provision itself is regulated,
but the manner in which the services are to be provided.37 So they are to be
treated as separate but equal. Equal treatment is clearly not yet the case; the
logics used by the regulating officers just do not permit actions that would,
in their mind, promote the pimping by the state: prostitution is just not
seen as a job choice as legitimate as being a baker, geographer or politician,
none of which tend to carry the causal stories told by the officers concerning the reasons for prostitution.
The manner in which the regulation takes place is specific to the place in
which the women predominantly work: the three main options in the towns
investigated in our project are the street, a bordello or private apartments.
Most women work in the latter, and the latter are completely unregulated
as they are considered to be locations in which citizens private business
takes place. In one town, the official estimate was that there were 10 to
15 street prostitutes, about 30 women working out of bordellos and about
430 women working out of apartments. Women on the street are asked to
move on, their identities are registered, and they are issued a restraining
order for that street and fined in case of recidivism. Women in bordellos
are the subject of tax investigations, checks on their migration status, health
checks, and general interest on behalf of the investigating officers. Only
locals can be found in street prostitution (because of the intensity of the
official scrutiny).
Locals are treated very differently from foreigners (for which purpose
only some people count as foreigners, namely women from visible minorities or women from non-EU countries). There are (according to the main
36 Although this is not explicitly stated in the law, the intention of the law-giver allows for
his interpretation. For a discussion, see von Galen, n 16 above, p 12, quoting MP BrandtElsweier from the Protocol of the Bundestag debate.
37 von Galen, n 16 above, p 104.

discourses prevalent) two types of women who prostitute themselves who
are German: the (morally, physically and socially) destitute, and amateurs
who are really students, housewives or sex obsessed. The former cannot
help themselves, often because of drug use:
the destitute junkies most of them cant really think properly ... I used to
tell them what they could do differently, that for example if they really have to
do it, they should do it in a house, but they cant follow ... I tell them that if they
really have to do it, they should go inside, do it in a house, they need check-ups.
There they might be checked by physicians. But they arent in a position where
they can follow what Im saying. That is why it is complicated.
The regulators show these street workers a decidedly paternalistic attitude,

wanting to change their behaviour for their own good, worrying about the
women not being able to take the right decisions by themselves, wanting
to help them improve their lives, etc. The women working out of apartments or bordellos, on the other hand, are considered to be amateurs that
can only be regulated where they operate in the public sphere (ie bordellos,
saunas, adult clubs, and so on). Insofar as they stay in the private sphere
of their apartments, they remain completely unregulated.
If the women are foreign in the sense stated above, our research has
shown that they also fall into two main groups: migrants who are professionals in the field, and provide special services for clients with eccentric
tastes, and young girls who are victims of their innocent desire to work
for a better life abroad and who sadly do not admit to having been trafficked.38
So within the practice of regulating public spaces, gendering and ethnicising takes place: the Germans on the street are helped, against their will; the
foreigners in service establishments who are deemed attractive are detained
in order to give them time to reflect on their possible involvement in trafficking; and those in flats are left to their own devices, as people who are
in no need of regulation or help. Thus, the different social spaces correlate
with different social classifications, and the classifications imply different
types of regulation of the subjects involved. If the theory of dynamic nominalism is correct, the possibilities of reaction of those thus regulated are
limited by the actions and discourses of the state agents.
Thus, the conferring of rights cannot always be effective: not only must
the rights discourses be translated into the vernacular, but also, the rights
discourse must in principle be understandable to the state officials in
charge. In the case briefly outlined here, the state officials had different
classificatory schemes than the German law provided possibilities for, so
that they just ignored it entirely.
38 There seem to be two exceptions to this rule, Thai women and Sinti women; Thais are
said to be here in order to find marriage partners, and Sinti women are categorised as offerings
services for Turks.
190 Rebecca Pates

The implication is that in some cases at least, the application of human
rights (pace Merry) to groups that had not been ascribed them before might
not actually make much of a difference. This does not, of course, serve to
prove that human rights ought not be applied to women; but the details
of the case can serve to show that because of the looping effect, great care
must be taken as to what classifications are made by the new regulations,
on the one hand, and whether local administrators of these laws are up to
the task of taking on these new classifications. In the German case of the
ProstG, the law was framed in a gender-neutral manner, and in a language
aiming at the possibility of professionalising a hitherto marginalised group.
In effect, local administrators resisted this professionalisation, and instead
took it upon themselves to ethnicise the women they wanted to control,
thus proving that their (now legally dubious) regulative interventions were
justified by the matter at hand: the women were just not capable of looking
after themselves, caused a nuisance and had to be forced to help themselves.
In this case, the provision of actual social services to prostitutes would have
been more helpful than the conferring of rights that then cannot be applied
by an administration unwilling to categorise anew.
SELECT BIBLIOGRAPHY
Butler, J, Gender Trouble (London, Routledge, 1993)
Chabal, P and Daloz, J-P, Culture Troubles: Politics and the Interpretation of
Meaning (London, Hurst, 2006)
Comaroff, JL, Reflections on the Colonial State, in South Africa and Elsewhere
(1998) 4 Social Identities
Elias, N, The Civilising Process: the History of Manners and State Formation and
Civilisation (Oxford, Blackwells, 1978)
Foucault, M, The History of Sexuality I (Harmondsworth, Pelican, 1981)
Garfinkel, H, Studies in Ethnomenthodology (Englewood Cliffs, Prentice Hall,
1967)
Hacking, I, Rewriting the Soul: Multiple Personality and the Politics of Memory
(Princeton, Princeton University Press, 1998)
, Making Up People 28 LRB 23
Hirschauer, S, Konstruktivismus und Essentialismus. Zur Soziologie des
Geschlechterunterschieds und der Homosexualitt 5 Zeitschrift fr
Sexualforschung 331
Hobsbawm, E and Ranger, T (eds), The Invention of Tradition (Cambridge,
Jacobson, M, Why Do Men Buy Sex? (2002) 1 Nordic Institute for Womens
Studies and Gender Research Magazine 24
Jeffreys, S, The Idea of Prostitution (Melbourne, Spinifex, 1997)
King, C, Category Errors (2006) 26 TLS
Kulick, D, Four Hundred Thousand Swedish Perverts 11 GLQ 226
Latour, B, Reassembling the Social: an Introduction to Actor-Network Theory

MacKinnon, C, Towards a Feminist Theory of the State (Cambridge, MA, Harvard
, Are Women Human? And Other International Dialogues (Cambridge, MA,
Belknap, 2006)
Merry, SE, Human Rights and Gender Violence: Translating International Law into
Local Justice (Chicago/London: Chicago University Press, 2006)
Moore, D and Valverde, M, Maidens at Risk (2000) 29 Economy and Society
Valverde, M, Laws Dream of a Common Knowledge (Princeton, Princeton
Valverde, M and Rose, N, Governed by Law (1998) 7 Social and Legal Studies
545
Volpp, L, Blaming Culture for Bad Behaviour (2000) 12 Yale Journal of Law and
Humanities
von Galen, M, Rechtsfragen der Prostitution (Mnchen, Beck Juristischer Verlag,
2005)
Weber, M, Soziale Konstruktion von Geschlecht: Entwicklung der Debatte in
H Richter-Appelt and A Hill (eds), Geschlecht zwischen Spiel und Zwang
(Gieen, Psychosozial-Verlag, 2004), p 44
West, C and Zimmermann, D, Doing Gender in J Lorber and S Farrell (eds),
(1991)
9
School Communities and
Childrens Rights
GIOVANNA GUERZONI AND DANIELA SOCI
INTRODUCTION
n todays anthropological debate, the concepts of culture and

identity have gone through a thorough critical revision. In the contemporary world, cultures can no longer be considered as isolated worlds.
Identities are constructed by means of fragments that feed on different
spaces and encounters, since they are processes characterised by multiple
factors, such as migration experiences, mobility, and by the cultural jumble,
both real and virtual (ie mass media).
This chapter describes an experience of education in human rights by
means of the theoretical perspective of analysis of human rights anthropology. This perspective focuses on the importance of an ethnographic reading
of the processes of both safeguarding and empowering of human rights.
From this point of view, the educational contexts stand as spaces of encounter and fusion of different cultures, not merely reducible to the presence of
foreign pupils in such contexts.
According to the teachers taking part in the Project, Adopt a Right, to
realise a truly intercultural school implies creating new educational models capable of negotiating individual rights (ie the right to education) and
group rights, such as the right to multiple identity belongings; the right
to the culture of origin, but also to the culture of the nation in which the
child is brought up and to that of the multicultural world in which he lives;
as well as the right to actively participate in the school community itself.
The Project promoted different experiences of education in human rights.
The teachers taking part in the Project considered human rights as a valuable instrument to negotiate individual and group rights precisely because
of the specific nature of the educational contexts themselves. This chapter
describes the experiences realised thanks to the Project and makes an evaluation of both positive and critical aspects in the practices of negotiation of
those individual and group rights that have been promoted.
194 Giovanna Guerzoni and Daniela Soci

AN ETHNOGRAPHY OF HUMAN RIGHTS IN EDUCATIONAL CONTEXTS
To consider the practices and representations of human rights as experienced

by pupils and their teachers in some Italian schools entails understanding
the relations, and the negotiation processes connected with them, between
different cultures existing in educational contexts. The reference is to institutional culture, traceable in different documents (ministerial programme,
planning educational offer (POP)) of the individual educational districts, the
didactic planning related to particular programmes; the culture connected
with the education processes carried out by the teachers, which is visible in
the didactic planning performed by the teachers through the school year;
the cultures of the pupils implemented through ongoing daily mediation
between specific histories and identities and cultures learnt/performed
within the school and outside the school (family, culture of origin, but
also living a plurality of other social contexts, from sport to religion, to
amusement spaces, to the media, etc). And these processes intermesh with
the re-elaboration of a culture at least partly shared, which makes the peer
group a specific community (a form of life)1 emerging in the educational
context.
The perspective of analysis of this chapter (and of the research-action to
which it refers) aims to privilege an ethnographic point of view on human
rights in the educational world. On the one hand, we do not intend to
resume the extensive debate of epistemological nature that has focused on
the nature of the ethnographic text and the anthropological method linked
with thata discussion that has occupied the scientific community of
anthropologists over the past few decades;2 we wish, however, to underline
certain aspects of it, ie those closely related with the context and experience
dealt with here.
In our view, an ethnographic practice on human rights in the educational worldone able to take up the challenges of a reading necessary
from below the paradigm of human rightsis needed today, and is also
of importance in several respects. First, it has been widely argued that the
historical and cultural density of human rights does not concern the fact
that they may constitute shared and desirable goals, but consists, rather, in
their purely political dimension;3 if so, then the paths of interpretation and
analysis, like that of ethnographic practice, would appear to be the paths of
choice with respect to a reality undergoing deep and rapid social and cultural changes. The cultural dislocation often reported by the educational
world requires new categories of interpretation in order to explore in detail
L Wittgenstein, Ricerche filosofiche (Torino, Einaudi, 1967).

J Clifford and G Marcus, Writing Culture: Poetics and Politics of Ethnography (University
of California Press, 1986).
3 N Bobbio, Let dei diritti (Torino, Einaudi, 1990).
2
School Communities and Childrens Rights 195

the processes of change or of resistance currently ongoing and enacted by
different groups and communities; they must be able to focus on detailed
analyses regarding the new configuration of social networks and identities,
capable of interpreting the imaginaries and representations that traverse
contemporary contexts, including those enacted by new human rights practices that obtain in specific situations like education.
In other words, the starting point of any ethnographic reading entails,
perhaps, leaving aside the absolute foundations of human rights in order
to address their political dimensions, ie the ways and forms in which specific communities think and implement concrete situations in order to guarantee fundamental rights. As Norberto Bobbio put it some years ago:
the basic problem regarding human rights is, today, not so much to justify them
as to protect them. This is not a philosophical problem, but a political one.4
And the argument for a necessary approach regarding the sociocultural

situation of today stems from the political root of anthropology as the science of cultural differences.
Secondly, an ethnographic reading of an experience of education in
human rights in educational contexts demands that we focus on the forms
of representation of the data collected in terms (as Matilde Callari Galli
reminds us in Chapter 3) of a construction together with the chosen cultural witnesses, giving expression to all the subjectivities it encounters.5 An
ethnography that gathers cultural narratives does not consist merely in a
right to narrate on the part of different individuals and groups qua subjects
of rights; it also enables work on the level of a right/duty to reinterpret the
charters of rights in relation to the subjectivities and the interactions that
enact them. The point is to narrate the rights, to provide them with local
contents and practices, to reinvent the rights by giving expression to a process of specification of the rights: this is what qualifies, in particular, the
multicultural contexts, where action in respect of the other and policies of
recognition are closely linked.
The multicultural educational contexts highlight the need for new practices of coexistence where the themes of dignity, liberty and equality in an
ethnographic reading highlight the space of a process of crisis and resistance
to the modalities expressed by Western thought and the enactment of forms
through which they are newly shared and rewritten. These are cultural
forms and models that must be attended to and studied ethnographically,
that show how it is the very multicultural dimension that informs, on the
one hand, the social space of what we called contemporariness and, on the
other, constitutes the space of crisis but also the practices of resistance and
cultural innovation of the paradigm of human rights.
4
5
Ibid p 16.
See M Callari Galli, Chapter 3.

Moreover, any ethnographic analysis, however local it may be, belongs,
in contemporariness, within processes that are necessarily transverse, global,
characterised by instability and in different profiles from the cultural differences. To conduct an ethnographic reading of the practices of human rights
in educational contexts involves situating these practices within the global
and transverse processes defined by contemporary nomadism: on the one
hand, the extensive actual mobility of individuals, goods and communities;
on the other, the fact of being immersed in a complex and pervasive communicative space (mass media, television and new technologies applied to
communication) that is of necessity mestizo and, at the same time, marked
by the ostentation and consumption of cultural difference.6
Practices and narrations on human rights are enacted by subjects and
communities immersed in this nomadism, at once real and virtual, that are
peculiar to our contemporariness. The centrality of the multicultural space
is projected on the theme of human rights, causing a crisis in its underpinning dimensions. The perceptions of violations of human rights, or what
is considered relative to the sense of dignity, or the sense of justice, or the
practices of liberty, are conceived and enacted in a context of ongoing
confrontation between different points of view, whose cultural distance,
however, appears redefined by living, for example, in an identical communicative space, new urban settings, new forms of work and of relation with
time, communitary space and processes of identity construction.7 Narrating
rights in multicultural contexts means narrating space continually negotiated between ourselves and others, a space that is, in reality, deeply
compromised by the structural violence of more wide-ranging social and
cultural processes.
Thirdly, the ethnographic approach postulates the centrality of the dimension of experience; human rights become thinkable (ie, they are configured as cultural representations that mediate in interpreting and acting on
reality)8 since they are conceived and enacted in the space of specific interactions. Making an experience of human rights consists in connecting those
rights with specific relational dimensions, so that in educational contexts the
cognitive dimension of human rights appears inseparable from their being
enacted in the space of experience, within histories characterised by the
interface between individuals, historic communities and different identities.
To speak of human rights thus means assigning a crucial dimension to the
6 M Callari Galli, Antropologia per insegnare (Milano, Bruno Mondadori, 2000); M Callari
Galli, Nomadismi Contemporanei (Rimini, Guaraldi, 2003); M Callari Galli, Antropologia
senza confini (Palermo, Sellerio, 2005); M Aug, Storie del presente (Milano, il Saggiatore,
1997); Z Bauman, La societ dellincertezza (Bologna, il Mulino, 1999); U Beck, La societ
cosmopolita (Bologna, il Mulino, 2003).
7 M Callari Galli, Nomadismi Contemporanei (Rimini, Guaraldi, 2003).
8 W Doise, La forza delle idee (Bologna, il Mulino, 2002).

level of relations and the historicity of each relation. So, the ethnographic
approach to making an experience of human rights in the educational
context involves experiencing a systemic process that implies the ongoing
negotiation of meanings and practices (in a multicultural sense) of human
rights. Such negotiation is based on the co-construction of shared practices
and representations in which a legitimate place is taken by different points
of view, deeply critical attitudes, spaces of resistance and contradiction,
fractures, crises. Add to this the assumption of a divergent thinking, among
whose characteristics of a shared dimension are the relationality and sense
of process in constructing together, but also the acceptance of crisis, instability, conflict as dimensions of the dialoguea space that is, indeed, fusion of
horizons9 without negating self and other-than-self: in this sense, a manyvoiced ethnographic account, that seeks new forms of recounting itself
which are, of necessity, partial and plural, but are no less authentic:
It is not a matter of finding the absolute foundationsublime but hopeless
taskbut, from one time to another, the various possible foundations. Otherwise,
also this quest for possible foundations will have no historical importance
unless accompanied by the study of the conditions, the means and the situations
in which one right or another can be realized. Such study is the task of the historical and social sciences.10
We are in debt to Melville Herskovits for having so lucidly (and unmindful

of the pitfalls of a radical thinking) posed the dilemma between universalism and relativism of human rights in a global context. In such a context,
education appears as one of the territories and laboratories of confrontation between the need to guarantee universal rights, including the right to
education, and respect for the differences in, and the ways historically and
culturally associated with, interpreting the values promoted at universalistic
level: a right to education which (in the Convention on the Rights of the
Child 1989) includes the right to difference only if comprised in the right
to recognise cultural plurality.11
The Convention looks at actions and assessments of contexts from the
viewpoint of the superior interests of minors and emphasises the universal
plan of human rights and how it is inextricably linked with the specific
conditions of children. Regarding the translation of the charters rights in
the educational context, the Convention has also attempted to reinterpret
the relationship between the specifics of that which is in a different cultural
context. In the Research-Action Project-experience, only an awareness
of tensions in the relationship between local and global are presented in
specific context, such as the multicultural society as well as contemporary
9
10
11
M Callari Galli, Antropologia senza confini (Palermo, Sellerio, 2005).

Bobbio, n 3 above.
G Harrison, I fondamenti antropologici dei diritti umani (Roma, Meltemi, 2001).

Italian society. This perspective, which also involved the plan for childrens
rights in the contemporary world, proposes the implementation of rights in
specific contexts.
RESEARCH-ACTION PROJECT ADOPT A RIGHT,
EMILIA-ROMAGNA, ITALY (200206)
The Research-Action Project Adopt a Right12 is a national project promoted

by the Ministry of Education and Scientific Research, coordinated, at local
level, by the Regional School Direction13 and involving the participation of
an inter-institutional group made up from the Department of Educational
Sciences of the University of Bologna, the Emilia-Romagna Region, the
IRRE, CDLei (Municipality of Bologna), and Memo (Municipality of
Modena). The Project has involved more than 100 schools of all kinds
and levels (from infant school to upper secondary) of the Emilia-Romagna
region organised in four territorial groups (Bologna-Ferrara; Modena;
Parma-Piacenza; Forl-Cesena-Rimini). The Project has alternated common
activities at regional level with annual activities divided into several encounters managed independently by the individual territorial groups.
At the initial stage, the Project consisted of two types of activity integrated with one another: a training activity aimed at teachers (focusing on
the research-action method, and on the topic of human rights in contemporariness, especially in relation to education for human rights, childrens
rights and the ethnography of human rights in educational contexts) and an
elaboration-experimentation activity, supervised by scientific coordinators,
involving classroom activities on human rights.
In the second stage of the Project, the groups conducted ongoing discussions on the activities performed, on the forms of education for human
rights in educational contexts, on the ways for documenting the paths and
projects that had been implemented of education for human rights, and on
the documentation both of the path followed and on that of the research:
training (training the trainers as well as training within their own classes),
and the processes of implementation of human rights in the educational
contexts (ethnography of human rights in educational contexts).
At the operative level, the Project aims inter alia: to promote a greater
knowledge of childrens rights in the educational world, implementing
training of teachers and opportunities for events for pupils; also, to stimulate the elaboration/experimentation of teaching packages, experiences
and projects of education for human rights, for educational contexts and
12
At ss 200206.
Coordination of the Research-Action Project Adopt a Right, Rosanna Facchini
(Regional School Direction, MIUR); coordination of the course, Elviana Amati.
13

specific socio-cultural situations, on the objectives and themes central to the
character of rights carried out by the teachers taking part in the project and
by their classes; and to organise supervision and ongoing reflection on the
ways and practices of education for human rights in educational contexts,
ensuring a close relation between theoretical space, educational and teaching projects and ethnographic analysis (itself an affirmation of a culture of
human rights); lastly, to promote the experimentation of new qualitative
forms of documentation of the experiences of education for human rights
performed in the classes taking part in the project.
Five per cent of children in Italy are foreign (2005/2006, see Ministry
of Public Education, 2006); in Emilia Romagna, the figure is 8.4 per cent
(2004/2005, Region Emilia Romagna, 2006). Obviously, the local dimensions of the phenomenon are extremely important: it is the distribution of
foreign children that makes each context different from all the rest. There
are classrooms in which there are just a few foreign pupils, while in others
they may make up 70 per cent or 80 per cent of the overall class composition. Moreover, it is necessary to consider the presence of foreign children
in Italian schools within the more general process of stabilisation of migrant
communities that has been taking place over recent years; the statistical
data show in fact a meaningful increase in family reunification.14
In the classes involved in the Project (200206), the quantitative presence of foreign children is taken into consideration from school to school.
Overall, it can be stated, hypothetically, that foreign pupils comprise about
6 per cent of the total number of pupils in schools. Similarly, it is important
to emphasise that the Project aims to depict the multicultural dimension as
a comprehensive process that concerns both the present and the future of
the young generation, and not merely as a simple project target.
A SCHOOL OF RIGHTS: POTENTIALS AND CONTRADICTIONS IN

EDUCATING FOR HUMAN RIGHTS IN THE EDUCATIONAL CONTEXT
It is not possible to narrate the experience of Adopt a Right without

somehow referring to the more general context in which Italian education finds itself in recent years: lack of space forbids a sufficient analysis
of the situation here, but it has certainly influenced the Project. In recent
times, Italian education has been undergoing a long phase of sociocultural transition, an upheaval, involving deep transformations in a social
and cultural sense for pupils and their families, as shown by the presence
of migrant pupils in the classroom. This is the case at all levels of education
14 Ministry of Public Education, Region Emilia Romagna, University of Bologna, CDLei
Municipality of Bologna, Project Adopt a Right (20022006). Also available on the web site:
www.regione.emilia-romagna.it.

(whereas the first migrant phase was characterised by the presence of
foreign pupils mostly in primary schools, the presence of unaccompanied
pupils, etc). Added to this is the increasing emergence of forms of illiteracy and social and psychosocial malaise among children and adolescents,
the many cases of violence inside schools, plus the gradual process of
isolation, reported by some as forms of segregation at the intergenerational level, and more generally at the social level. Also to be noted are
the difficulties experienced by parents who attempt to combine work
and family commitments in a context in which jobs are becoming more
and more precarious. This coincides with a long stage of reform of the
Italian education system, which has been opposed here and there in
political and social debate and in popular protest; and it has been accompanied by cuts in funding for public education, freezing of full-time
schools, and a thorough revision of the working methods of teaching
staff. The reports of the teachers who have taken part in the Adopt a
Right Project underline perplexity, uncertainty and preoccupation in a
process that, in many ways, is felt as undermining the experiences gained
by the militant school.
Schools have to face new challenges presented by the recognition of
childrens rights. The starting point of the Project experience was the need
to propose approaches to the knowledge of human rights felt by the teachers participating in the Project. However, the intrinsic limits of a kind of
teaching which exclusively concerns the cognitive aspect of transmission
of knowledge were emphasised.15 The awareness of human rights becomes
complex knowledge: not so much, or not only, because of the rights defined
by the conventions but especially because it is a recognition of ones own
rights; it is a handing over of the instruments which allow reality to be
interpreted and which are able to assess whether rights proclaimed on
paper are upheld in fact. It also means to affirm the emergence of new
needs.
Anthropological studies, focusing on processes of enculturation, have
brought to light links between formal and informal aspects and between
the dimension of the explicit and the dimension of the implicit, hidden
in the transmission of knowledge. In the same way, educational practices
are triggered by symbolic representations and universes where different
models of generational relationships are expressed. The adult encourages
certain kinds of behaviour but at the same time sets significant limits which
transform the child by defining his/her identity and belonging.
It is self-evident that speaking of childrens rights and education means
taking up different challenges and tasks. The teachers taking part in the
15 AM Gianotti, Alcune riflessioni in M Callari Galli, G Guerzoni, B Riccio, (eds) Culture

e conflitto (Rimini, Guaraldi, 2005) 16772.

Project, who had begun courses regarding rights in the last few years,
seemed to be quite aware of this.
The human rights awareness project, as seen in the school experiences
related by Project participants, must be put into practice in educational
contexts; if it is not, it will be rapidly forgotten. Rather than schools that
just talk and divulge information about human and childrens rights, there
should be schools where these rights are enshrined, schools that agree to
change their own ways and methods and be transformed in the light of
the new dimensions of identity and subjective interchange proposed by the
European Convention on Human Rights; schools which rethink their own
way of dealing with the relation between local and global and which follow
it by welcoming the presence of children from different cultural, religious
and ethnic backgrounds.
The themes chosen by the teachers participating in the Project were:
the right/duty of living together in a civil society; the right to grow up
(interpreted as the analysis of a violation: the exploitation of children in
the workplace worldwide); the right to health; the right to be respected
for ones own cultural identity/the duty to acknowledge the right of others to cultural diversity. All these themes bear witness to an interest in
human rights originating in issues arising in schools regarding intercultural
relationships. Thus, the schools taking part in the Project have worked on
themes including (to name but a few): Equality in diversity, Identity, culture and childrens rights, Being equal in diversity.
The variety of paths, projects and actions worked out in the teaching
practices by the teachers within the Research-Action Project shows the dual
purpose of educating in human rights, on the one hand, and, on the other,
of rethinking the school settings as educational spaces for the diffusion and
the enculturation of human rights, thus of operating through communities
of practice prompted by human rights. One example involves the pupils
of a lower secondary school who have developed an autonomous reflection
about human rights (namely the right to freedom, to love and to peace)
through the organisation and the production of a theatrical performance.16
In the account of this experience by the pupils, new perspectives and a
new awareness about the rights taken into consideration can be clearly
observedlove is stronger than hate and disparitiestogether with a
deeper meditation about the self, about the own way of relating to differences, about the processes of negotiation and rethinking of the other,
which emerged in the everyday common work:
At the beginning we hated one another, but later, by going to the drama workshop, we have learnt to know one another.
16 The school mentioned is Villa Clelia lower-secondary school, in the Imola district,
Province of Bologna. The teacher involved is Maria Di Ciaula who carried out a project on
The Right to Love through a drama workshop, 200506.

This case (in many ways paradigmatic of the progress of other experiences
within Adopt a Right) suggests that sharing a common objective and
constituting a community of practice contribute to develop the awareness of human rights and of the values and human relationships related
to them; this sort of empowerment process involves not only the cognitive
level but rather the interacting body, and could be consolidated as a kind
of habitus.17
In structuring spaces, times, teaching strategies and educational paths,
with the aim of overcoming a unity/difference antithesis, the schools become
genuine laboratories for human rights. And the activities involved, which
once sought to bring out the diversity by emphasising the particularity of
every pupil, now aim to highlight the aspects of equality and cultural communality. The identity/difference relation goes to the very heart of what is
the crucial question for educational institutions of training of identity. If
school is to train individuals so that they become competent to participate
in social life, it is evident that where the social dimension appears to expand
to the point where it comprises the entire world system, the perspectives
and goals of education need to be reformulated.
The presence of foreign children in the classroom enhances those themes
which are at the centre of childrens and adolescents interests as they
become more and more detached from their land of origin, more global.
The teachers are impelled to find a way both of interpreting this reality
made up of differences and of negotiating between the different needs of
adults and children, boys and girls, children with different histories and
backgrounds.
The childrens rights education procedures on which the Project has concentrated have emphasised the importance of a different teaching approach
where the teacher is more in tune with the emotional dimension of the class.
The teacher is a mediator between the different cultures and histories that
make up the class and becomes interpreter of and witness to those rights
and even of the contradictions between them (between a contexts universal
and specific level, between demands for rights and their violation, etc).
This work with teachers has provided us with, first and foremost, a
reflection on the profession itself as well as on the teaching model. The
Project takes into consideration the various ways educational contexts can
be observed regarding the issue of human rights. Observing the outcomes
of educational approaches to human rights or observing how much an educational context responds to childrens rights, includes the teacher as part
of a process in which the adoption of childrens rights practices involves
and modifies the meaning of the teaching profession, as well as the rights
and duties of the teacher. If learning takes place within a community of
17
P Bourdieu, Per una teoria della pratica (Milano, Cortina, 2003).

practice18 through mechanisms such as mimesis, repetition, routine, the
assumption of roles, then learning is the result of processes of social intermediation and coordination. This is true at both cognitive and social levels,
but also at the emotional level.19 In this sense, learning coincides with participation in a community understood as shared space and with respect to
which different subjects participate in a differentiated way:
One learns not because one wants to or has to learn certain contents, but as the
result of the effort to belong to a community, to become a competent member of
it, socialised with its values.20
In human rights education this means becoming competent members of a

community that places human rights at the centre of its values and actions.
This is why human rights lead to rethinking the organisation and structure
of school.
Lastly, as far as teaching methods are concerned, considerations have
been made and materials have been elaborated which have accentuated the
transversal dimension: no longer a lesson on human rights education but
a rewriting of the syllabus in the light of human rights. This transversality
should also link together different schools at different levels or the institutional dimension with non-scholastic dimensions present in an area.
In the Convention on the Rights of the Child and also the experience of
education for human rights present in the Project, we have a model of education by encounters and confrontations: a new model of teaching/learning
that, in recognising otherness, considers it to be on an equal level with the
other child: a child whose identity is the outcome of enculturation, of
a multiple identity, able to valorise his/her own origins and own cultural
context and to be vigilant when faced with the prejudices and stereotypes
that surround every human group; a child who, as it were, squints, being
able to root him or herself in a specific culture as well as able to live the
dislocation and confrontation with the others in a multicultural society; a
child enjoying a learning aimed at a future as a universal man, inhabiting
the planet of multiplicity.21
The experience of Adopt a Right highlights the central importance of
reflecting on the concept and practice of citizenship; for citizenship is not
a blind culture, not a natural condition that binds the individual to the
state, but has strong connotations of a cultural kind.22 Therefore it cannot
18 E Wenger, Communities of Practice: Learning, Meaning, and Identity (Cambridge,

Cambridge University Press, 1998); C Grasseni and F Ronzon, Pratiche e cognizione (Roma,
Meltemi, 2004).
19 P Dumouchel 1996.
20 Grasseni and Ronzon, Ibid p 64.
21 Harrison, n 11 above.
22 NM Craith, Culture and Citizenship in Europe: Questions for Anthropologists (2004)
12 Social Anthropology 289.

be assumed to be merely a formal condition that regulates the set of rights
and duties of the individual but is, rather, something rooted in the daily
life of persons and their relations through a set of practices. In the close
relation between individual and community, the ways of participation and
resistance to participation in its traditional forms enacted by the new subjects of rights (children, young persons, migrants, etc) make it compulsory
to rethink the relation between citizenship and cultural rights.23 Kymlickas
hypothesis of a model of multicultural citizenship24 linking the affirmation
of universal human rights regardless of the group of membership with the
specificity of rights differentiated according to group, opens the way to a
consideration that in the educational contexts could be negotiated with the
need to identify a common and shared space for dialogue.
Faced with idea of the education on human rights which we can define
as idealised human rights, the teachers participating in the ResearchAction Project propose a model of education on human rights defined by
the specifics of real situations in which teacher and students are working.
In situations where it is necessary to reach decision-making positions (facing problems of migration, multiculturalism, etc), human rights provide a
scheme of reference which facilitates the negotiation of different individual
or collective needs in sociocultural contexts. The passion for human rights
has its origins in concrete situations where the dignity and fate of every
human being are at stake.
SELECT BIBLIOGRAPHY
An-Naim, Abdullahi, A, Human Rights in Cross-cultural Perspectives: a Quest for
Consensus (Philadelphia, University of Pennsylvania Press, 1992)
Appadurai, A, Modernity at Large: Cultural Dimensions of Globalization
Archibugi, D and Beetham, D, Diritti umani e Democrazia cosmopolita (Milano,
Feltrinelli, 1998)
Aug, M, Storie del presente (Milano, il Saggiatore, 1997)
Bauman, Z, La societ dellincertezza (Bologna, il Mulino, 1999)
Beck, U, La societ cosmopolita (Bologna, il Mulino, 2003)
Bennet, JH, Science and Human Rights: Reason and Action (1949) 51 American
Anthropologist 329
Berthoud, G, Vers une anthropologie gnrale: modernit et alterit (Genve, Droz,
1992)
Bobbio, N, Let dei diritti (Torino, Einaudi, 1990)
Bourdieu, P, Per una teoria della pratica, Milano, Cortina (2003)
Callari Galli, M, Rubrica su I Diritti Umani (199598) Pluriverso
23
24
A Touraine, Pourrons-nous vivre ensemble? gaux et diffrents (Paris, Fayard, 1997).

W Kymlicka, La cittadinanza multiculturale (Bologna, il Mulino, 2003).

, Diritti umani e antropologia della contemporaneit (1999) 3 Focus su I
diritti dimenticati (Pluriverso) 559
, Antropologia per insegnare (Milano, Bruno Mondadori, 2000)
, Nomadismi Contemporanei (Rimini, Guaraldi, 2003)
, (ed), La tv dei bambini, i bambini della tv (Bologna, BUP, 2004)
, Antropologia senza confini (Palermo, Sellerio, 2005)
Callari Galli, M, Ceruti, M and Pievani, T, Pensare la diversit (Roma, Meltemi,
1998)
Callari Galli, M and Guerzoni, G, (eds), I diritti dimenticati (1999) 3 Focus
(Pluriverso) 5291
Callari Galli M, Guerzoni, G and Riccio, B (eds), Culture e conflitto (Rimini,
Guaraldi, 2005)
Callari Galli, M and Harrison, G (eds), Se i bambini stanno a guardare (Bologna,
Clueb, 1999)
Cassese, A, I diritti umani nel mondo contemporaneo (Roma-Bari, Laterza, 1994)
Clifford, J and Marcus, G, Writing Culture: Poetics and Politics of Ethnography
(University of California Press, 1986)
Craith, NM, Culture and Citizenship in Europe: Questions for Anthropologists
(2004) 12 Social Anthropology 289
Delmas-Marty, M, Le flou du droit. Du code pnal aux droits de lhomme (Paris,
PUF, 1989)
, Vers un droit commun de lhumanit (Paris, Textuel, 1996)
Doise, W, Human Rights Studied as Transcultural Normative Social Representations (1999) 29 European Journal of Social Psychology 1
, La forza delle idee (Bologna, il Mulino, 2002)
Donnaruma, A (ed), Educazione alla comprensione dei diritti umani nella societ
contemporanea (Roma, Quaderni PRODOCS, 1988)
Drerup, A (ed), Il tempo dei diritti: piccolo ideario per leducazione ai diritti umani
(San Domenico Fiesole, ECP, 1996)
Emiliani, F and Molinari, L, I diritti dei bambini (1999) 155 Psicologia
Contemporanea 41
Gianotti, AM, Alcune riflessioni in Callari Galli, Guerzoni G, Riccio B, (eds)
Culture e conflitto (Rimini, Guaraldi, 2005) 16772
Giliberti, G, Diritti umani: un percorso storico (Bologna, Thema, 1990)
Grasseni, C and Ronzon, F, Pratiche e cognizione (Roma, Meltemi, 2004)
Guerzoni, G, Cittadini apolidi. I diritti nellera dei mondi interdipendenti in Callari
Galli M and Guerzoni G (eds) 3 Focus su I diritti dimenticati (Pluriverso, 1999)
6062
, Educare ai diritti umani nella societ contemporanea: una lettura antropologica
in R Facchini (ed), Cittadinanza attiva e diritti umani (Napoli, Tecnodid, 2006)
Harrison, G, I fondamenti antropologici dei diritti umani (Roma, Meltemi, 2001)
Herskovits, M, Statement on Human Rights (1947) 49 American Anthropologist 539
Kymlicka, W, La cittadinanza multiculturale (Bologna, Il Mulino, 2003)
Levi-Strauss, C, Razza e Storia e altri studi di antropologia (P Caruso (ed), Torino,
Einaudi, 1967)
, Lo sguardo da lontano (Torino, Einaudi, 1984)
Messer, E, Anthropology and Human Rights (1993) 22 Annual Review of
Anthropology 221

Ministry of Public Education, Region Emilia Romagna, University of Bologna,
CDLei Municipality of Bologna, Project Adopt a Right (20022006)
Neveu C, Rapport, N, Ouroussof, A, Toren, C and Craith, MN, Discussion:
Anthropology and Citizenship ( 2005) 13 Social Anthropology 199
ONU, Droits de lhomme. Recueil dinstruments internationaux (Organisations des
Nations Unies pour lEducation, la Science et la Culture, Paris, 1988)
Preis, AB, Human Rights as Cultural Practice: an Anthropological Critique (1996)
18 Human Rights Quarterly 286
Santiemma, A (ed), Diritti umani: riflessioni e prospettive antropologiche (Roma,
Euroma, 1998)
Shute, S and Hurley, S (eds), On Human Rights (BasicBooks Harper Collins Pub,
1993)
Soci, D, I diritti umani nei contesti educativi in R Facchini (ed), Cittadinanza attiva
e diritti umani (Napoli Tecnodid, 2006)
Staerkl, C, Clmence, A and Doise, W, Representation of Human Rights across
Different National Contexts: the Role of Democratic and Non-democratic Populations and Governments (1998) 28 European Journal of Social Psychology 207
Tentori, T, Contributi antropologici allo studio dei diritti delluomo: considerazioni
e ricerche (1993) 31 Paradigmi 221
Touraine, A, Post (1991) 12 FORRivista AIF per la formazione 6
, Pourrons-nous vivre ensemble? Egaux et diffrents (Paris, Fayard, 1997)
Turner, T and Nagengast, C (eds), Universal Human Rights versus Cultural
Relativity (1997) 53 Journal Anthropological Research 3
Washburn, WE, Cultural Relativism, Human Rights and the AAA (1987) 89
American Anthropologist 939
Wenger, E, Communities of Practice: Learning, Meaning, and Identity (Cambridge,
Weil, S, Lenraciment. Prlude une dclaration des devoirs envers ltre humain
(Paris, ditions Gallimard, 1949)
Wilson, R (ed), Human Rights, Culture and Context: Anthropological Perspectives
Wittgenstein, L, Ricerche filosofiche (Torino, Einaudi, 1967)
Zagrebelsky, G, Il diritto mite. Leggi diritti giustizia (Torino, Einaudi, 1993)
10
Citizenship: Anthropological
Approaches to Migration and
Social Exclusion
BRUNO RICCIO AND GIUSEPPE SCANDURRA
INTRODUCTION
his chapter focuses on the connections between the transformation

of citizenship, the diversification of poverty and the development of
transnational ways of migrating. As a result of the emergence of new
poverties, the methods of impoverishment are characterised by a deep individualisation, so that it is possible to observe different life situations, forms
of privation that go beyond ordinary economic deprivation. Furthermore,
new methods of migrating and of managing difference within multicultural
configurations have led some scholars to speculate on new paths for claiming and granting rights. However, human rights discourses tend to reify the
complex and ambivalent social and cultural processes through which rights
are negotiated, realised or denied within specific contexts. In some cases
there is a noticeable gap between the provision and the realisation of rights,
which is often affected by negotiation between individuals and groups. Such
negotiation is influenced in many ways by the representation (symbolic as
well as political) of social and migrant minorities.
We shall stress the importance of disaggregating both migrant as well as
poor communities. Poor persons do not constitute a homogenous group
and migrant groups are characterised by multiple and differing biographical and social trajectories. Taking into account the experiences of social
practitioners implementing policies towards migrants, and the case of the
street lawyers providing legal support to the homeless in Bologna, we shall
discuss the problem of essentialism and sedentarism informing many institutional practices and the implementation of rights. For instance, these
rights are often denied to people who live in conditions of extreme precariousness because they do not hold a certificate of residence. By considering
citizenship as a problematic process in specific contexts, we seek to explore
how anthropological and ethnographic approaches can contribute to the
208 Bruno Riccio and Giuseppe Scandurra

analysis of the realisation of human and citizenship rights in our
contemporary societies.
CITIZENSHIP: A CONCEPT IN NEED OF CONTEXTUALISATION
Marshall defined citizenship as a status bestowed on those who are full

members of the community1 which includes civil, political and social rights
and obligations. Analytically, citizenship may be discussed as a multi-tier
construct, which applies to peoples membership in a variety of collectivities: local, ethnic, national and transnational.2 The community to which
Marshall implicitly referred was, unproblematically, the nation, conceived
as a homogeneous cultural entity. Various anthropologists argue instead
that a central question in current debates about citizenship is the extent
to which difference discriminates between citizens; whether, rather than
citizens being bearers of equal rights, their ability to exercise their rights
in full is affected by discrepancies in positioning of gender, culture, ethnicity, and so forth. Citizenship is often mediated by a persons multiple and
intersecting identities and political subjects may be involved in more than
one political community. In the light of this, some scholars stress the need
to recognise the legitimacy of publicly articulated differences and insist that
citizenship is always dialogical. Even among liberal democracies, there is
no shared, fixed, once-and-for-all model of citizenship. On the contrary,
citizenship differs between countries and is historically contingent: a negotiated and often contested order. Paradoxically, perhaps, it is marginal groups
or non-citizens, those excluded from active participation in the political
community, which have the most impact on citizenship as a historically
evolving imaginary.
For instance, migrant minorities have affected the shape and trajectories
of citizenship in Western democracies.3 But if citizenship is to be redefined,
non-citizens must first move into the public sphere. Indeed, they may
often have to redefine the public sphere and its limits. Hence, struggles
over citizenship are often struggles over the very meaning of politics and
membership in the community. The contingent and emergent dimensions of
citizenship are nowhere more evident than in Europes cities, which attract
the most recent and most vulnerable citizens and non-citizens: the ethnic
minorities who are portrayed by the media as anonymous migrants and
refugees. Such misrepresentation can have a seriously detrimental impact
1 TH Marshall, Citizenship and Social Class (Cambridge, Cambridge University Press,
1950), p 14.
2 Yuval-Davis Women, Citizenship and Difference Feminist Review (1997) 57: 5 quoted in
P Werbner et al, New Migrants in European Gateway Cities (unpublished, 2006).
3 RD Grillo, Pluralism and the Politics of Difference (Oxford, Oxford University Press,
1997).
Anthropological Approaches to Migration and Social Exclusion 209

on the ability of citizens to exercise their rights.4 What is entirely forgotten
in this debate is that todays refugees or undocumented migrants may
become tomorrows upright citizens. New minorities will become citizens or
permanent residents, entitled to vote and put forward electoral candidates.
Nevertheless, policy continues to be dictated almost exclusively by notions
of migrants as problems and by top-down attempts to define multicultural citizenship. But this in itself does not alleviate problems of residential
segregation in deprived neighbourhoods, which sometimes lead to extreme
cultural alienation.
Although, as Soysal5 has argued, there is some evidence that human rights
legislation protects non-citizens in post-national states, this is no longer
straightforwardly the case as governments attempt to exclude disguised
economic migrants and admit short-stay migrants. The result has been that
some incomers have almost no rights and there is a vast shadow world of
undocumented migrants with even fewer rights. The increasing complexity
of categories of political status and the associated rights of persons now
resident in Europe, from full citizens to permanent residents who are denizens, short-term contract workers to temporary refugees, asylum seekers
and undocumented migrants, is currently testing the limits of citizenship.
This range of forms of political memberships is, in a way, less evident in
migrants daily lives which are characterised by a range of informal work
opportunities. Moreover, virtually all of these new residents, whether or not
they are full citizens, still have a foot in another country and commitments
to a different culture and to family back home.6 Todays itinerant global
movers are flexible citizens, and often carry multiple passports.7 As we
will see, personnel in charge of the implementation of rights often wonder
how this impacts on migrants sense of belonging and their loyalty to their
newly adopted nation-state and city within which they settle.
One key to the theoretical assumptions grounding research on migration
and multiculturalism is that critical mass makes a difference; that the concentration of members of an ethnic group from one place of origin in large
numbers in particular cities creates a nucleus around which networks and
social capital can be built. At the same time, they also interact with other
ethnic groups in neighbourhoods and places of worship, forming wider,
multi-ethnic communities. Civil society, and indeed citizenship, are grounded
in such internal and external interactions. The fact that citizenship does
4
R King and N Wood (eds), Media and Migration (London, Routledge, 2001).
YN Soysal, Limits of Citizenship: Migrants and Postnational Membership in Europe
(Chicago, University of Chicago Press, 1994).
6 B Riccio, From Ethnic Group to Transnational Community? Senegalese Migrants
Ambivalent Experiences and Multiple Trajectories (2001) 27 Journal of Ethnic and Migration
Studies 58399.
7 A Ong, Flexible Citizenship: the Cultural Logics of Transnationality (Durham, Duke
5

not involve a fixed set of rights and responsibilities is particularly clear at
present. MP Smith has recently argued for the need to adopt an ethnographic approach from below if we are to make sense of the new transnational urbanism. He argues that a birds eye view is inadequate, denying
agency and tending to rely entirely on global narratives of epochal transformation.8 Ethnography is particularly important for exploring the everyday
political participation and social negotiation not only of citizens but of
non-citizens. We need to investigate how such complex legal categorisations
of citizenship and non-citizenship rights affect different social and ethnic
minorities and their capacity for civic action. Not too dissimilar reflections
characterise the understanding of social exclusion and poverty, another kind
of non-citizenship.
Any analysis of social exclusion (since we are dealing with citizens not
recognised as such, especially those with no fixed residence, and immigrants
living in our country, in the context of a debate on citizenship and human
rights) must address specific problems relating to the politics of representation. In effect, the researcher studying these situations must consider to
what extent the analyses may be used as stereotyped representations of
vagabonds or, more generally, as negative descriptions of poor persons. This
is why, as ethnographers, we prefer not to employ the sort of interiorising
narratives that dominate the majority of the literature on poverty in Italy
and elsewhere, while playing down the suffering such persons face daily in
their struggle to survive.
But there is a more general problem: historically, anthropologists have
avoided directly addressing sensitive questions such as violence against
the person, alienation, social exclusion and self-destruction. The logic of
participant observation requires researchers to be physically present and
personally involved, which often leads to the negative dynamics being concealed, since we need to have an empathetic relation with the persons we
study: for it is easier to win the trust of the individuals of whom we write
when fairly harmless problems are addressed.9 In addition, encouraging
empathetic readings of the cultures or persons one studies stems from the
fundamental anthropological imperative of cultural relativism, according to
which, in the view of Bourgois, cultures are never either good or bad, but
merely possess their own inner logic.10 This precept involving hygienising
vulnerability is especially strong just now in Italy, where common sense is
by now defined by the theories of individual action based on the responsibility of the victim.
MP Smith, Transnational Urbanism: Locating Globalization (Oxford, Blackwell, 2001)
p 24.
9
10
P Bourgois, In cerca di rispetto (Roma, Derive Aprodi, 2005).

Ibid.

In this arena, we can identify two typologies of analysis that may turn out
to be dangerous within the social science context: on the one hand, research
that criminalises the victims, making them solely responsible for their career
within a system of political discourse where the debate on poverty tends
increasingly to be polarised around the topics of ethnic membership and
individual value; and studies which emphasise the importance of structures,
ie conceiving the social actors as victims pure and simple, which, by omitting
their practices, prevents the reader from understanding how particular mechanisms of social exclusion are generated. Anthropology may be of use, in this
context, precisely to highlight the ideological content of such discourse and
the lack of analytical complexity. For, if the theory of the culture of poverty
neglects the influence exercised on individual biographies by history, culture
and political-economic structures, political-economic analysis cannot be a
panacea for compensating for individualistic, racist or moralising interpretations of social marginalisation: emphasis on structure frequently glosses over
the fact that human beings are agents of their own history, not its passive
victims.11
DISAGGREGATING COMMUNITIES
Numerous scholars argue that nowadays migrants sustain multistranded

social relations that link their societies of origin and settlement, and emphasise the emergence of a social process in which migrants establish social
fields that cross geographic, cultural, and political borders.12 However,
we would like to emphasise the importance of disaggregating the so-called
migrant community and to urge the importance of recognising and analysing the internal tensions characterising these communities and the plurality of trajectories emerging from their transnational spaces. For instance,
Riccio has shown the variability of social networks used by migrants
according to different situations and has argued that transnationalism constitutes a field of contrasting and complex effects.13 This is not a system of
reified transnational networks but, rather, a dynamic process of constant
networking which encompasses a wide range of different and situationally
varied practices within transnational spaces.
For instance, Senegalese transnational migrants do not constitute a
homogeneous and monolithic entity. One may distinguish, on the one
hand, those who tend to enter the formal labour market with some success,
but also encounter exploitation and interact with the institutions of the
11
Ibid.
N Glick Schiller, L Bsch and C Szanton-Blanc (eds), Towards a Transnational Perspective
on Migration (New York, New York Academy of Science, 1992); M Callari Galli (ed),
Nomadismi contemporanei (Rimini, Guaraldi, 2003).
13 Riccio, n 6 above.
12

receiving context a great deal, not being afraid to let themselves be known.
They try to organise a non-religious form of sociopolitical representation
relating to the logic of the Italian associational structure, and shape their
own personal networks as well as relying on the communitary networks. On
the other hand, there is a majority who may also enter the labour market
but tend to prefer trade, identifying the religious circles as the most fulfilling organisational form. These transnationals follow an inward-looking life
strategy and tend to avoid contact with Italians; they benefit instead, spiritually as well as materially, from life within a transnational social field.14
Poor and socially excluded groups also need to be disaggregated.
It is now generally accepted that the poor no longer constitute a social
class or homogeneous group but, rather, a mass of undefined contours
having no self-representation and often not recognised by the system
upon which they nonetheless depend.15 The people we call vagabonds,
for example, account for a very small part of the heterogeneous group
legally defined as having no fixed abode: hence the name vagabond
conveys a particular conception of the complex phenomenon of homelessness. Persons of no fixed abode are in a situation of dire need because, as
well as having no home, they are without even a minimum income, they
have broken with their family, and are often at risk of physical and mental
deterioration. Vagabonds (proportionally in a minority) are distinguished
within this group by their habit of collecting cardboard boxes and plastic
bags often full of refuse.16
But what links these persons together? In anthropological terms, can one
speak of a culture of poverty?17 The ethnographic work of Oscar Lewis, for
example, hinges on the fact that the street life led by these persons represents a culture of resistance capable of elaborating a different perception of
spatio-temporal reality. Hence it is not merely a form of passive, parasitic
marginalisation, but should rather be viewed as a cultural mutation, since
these people infringe the important value of our society that is economic
production. A second type of mutation is physical: in the absence of a
fixed abode, healthy management of ones own body is not possible. Thus,
the homeless also deviate from a series of hygienic and moral norms that
regulate our culture.18 But it is the very concept of dwelling that changes in
14
Ibid.
M Bergamaschi, Ambiente urbani e circuito della sopravvivenza (Milano, Franco Angeli,
1999).
16 F Bonadonna, Il nome del barbone: vite di strada e povert estreme in Italia (Roma,
Derive Approdi, 2001).
17 N Anderson, Il vagabondo. Sociologia delluomo senza fissa dimora (Roma, Donzelli,
1994); O Lewis, La cultura della povert e altri saggi di antropologia (Bologna, Il Mulino,
1973); P Bourdieu, La misre du monde (Paris, Editions du seuil, 1993).
18 F Bonnadonna n 16 above.
15

the homeless. If having a fixed residence means, etymologically speaking,
having habits, then being without a fixed residence also means assuming
other habits: the street alters the perception of reality.19
At the same time, these persons in no way represent a homogeneous
social group. In the Massimo Zaccarelli dormitory, where Scandurra performed a study over 15 months in order to analyse the practices of daily
life of a group of inmates, all of those inmates continue to speak their
dialect, contaminating it with that of their interlocutors.20 The Romans
speak a little Salentino, the Campanians make an effort to use Calabrian
words. The result is a southern language hard to understand. It is the
idiom of the working-class districts of large cities like Naples, Palermo,
Rome, Cagliari, Bari.
Moreover, the anthropologist visiting those dormitories was surprised
to find very young men and women. All of them have become parents
before reaching majority age. At 20, many dormitory inmates have already
travelled over half of Italy, have sampled almost everything in the way of
drugs and alcohol, and have married, divorced and married again.21 Thus,
while there is an increasing number of immigrant inmates, that of the
40-plus Italians who have lost their jobs grows exponentially. Yet, the
strong presence of adults notwithstanding, as mentioned above there are
large numbers of young persons hardly over the age of 20 who leave university and fail to find steady work. The presence of equal numbers of women
as men is a new phenomenon, dating from the 1990s.22
THE HOMELESS IN BOLOGNA
Bologna has always contained a wealth of different groups: as a university

city, a market for the townships surrounding it, a city of fairs and entertainments, a city of immigration. From the 1980s, however, each of these
attributes appears to define individual groups rather than an ensemble
amalgamated according to a shared common residence. Only somewhat
recently have the various citizen groups accentuated their character of
separate worlds. With the passing of time, many districts have become the
hub of different groups and cultures: immigrants, students from outside of
Bologna, persons of no fixed abode, commuting workers.23
19 F Remotti, Luoghi e corpi. Antropologia dello spazio, del tempo e del potere (Torino,
Bollati Boringhieri, 1993).
20 G Scandurra, Tutti a casa. Il Caracci: etnografia dei senza fissa dimora a Bologna
(Rimini, Guarladi, 2006).
21 Ibid.
22 A Roversi and C Bondi, Senza fissa dimora a Bologna (2006) Quaderni. Citt Sicure.
23 M Callari Galli, Cittadinanze lacerate (2004) IV 7 Gomorra 1532.

In this sense, we may see Bologna as containing several worlds that
coexist without touching one another. The centre of the city has its own special character conferred by the arcades, not to be found in other city centres
like the museified ones of Florence or Rome, where the poorest territories are
often relegated to the outskirts. This aspect of Bologna renders the centre not
socially homogeneous: whereas the old buildings are inhabited by common
citizens, by a well-off bourgeoisie, Bolognas arcades offer a kaleidoscope
of diversity. Mendicants, homeless and immigrants stand or squat before
the windows of the luxury shops, theatres and churches. In some sense, the
arcades become their dwelling place, while the original citizens pass by
them, so that very different social worlds touch and coexist, even though the
gaze of the inhabitants of one world does not contemplate the members of
the other. The university area provides a classic setting for such coexistence.
Bologna, then, encompasses a number of cities that scrutinise, touch
and avoid each other, in profoundly different and asymmetric positions. Its
legitimate society, mostly composed of residents and lodgers, does not know
the nomadic, illegitimate society (workers in casual, non-guaranteed jobs,
migrants, the homeless) but it continually adduces that other society, blaming it for the ongoing deterioration of the city, as a constantly impending
threat.24 By no mere chance, the local elections in these last years have turned
on questions of legality and security. As from the 1990s, various citizens
anti-deterioration committees have sprung up and continue to appeal to the
Mayor to protect them against these hordes of aliens that generate malaise.
Two decades on from their first appearance, the flows of migrants towards
Italy can no longer, in effect, be considered as an exceptional phenomenon. The commune of Bologna houses some 30,000 regular immigrants
(7.2 per cent of the population) who work, study and fulfil all their civic
duties within the commune while lacking any political rights. These are genuine second-class citizens with no voice in the political and administrative
decisions that condition their lives and professional activities. Some idea
of their importance in Bolognas economy can be gained by observing the
numbers of them crowding into the buses and trains heading every morning
for the outlying industrial districts, or by listening to the languages spoken
on the building sites. Bolognas historic centre has been revived, enriched
with colour and trading activity thanks to the scores of small shops opened
by Pakistanis, Indians, Bangladeshis and Latin Americans who provide
the resident and student populations with services that would otherwise
be unavailable.25 Women from Moldavia, Poland, Ukraine, Peru and the
24 A Dal Lago and E Quadrelli, La citt e le ombre. Crimini, criminali, cittadini (Milano,
Feltrinelli, 2003).
25 B Riccio, Transnazionalit urbana. Meticciato in citt ? in M Callari Galli, D Londei
and A Soncini Fratta (eds), Il meticciato culturale. Luogo di creazione, di nuove identit o di
conflitto? (Bologna, CLUEB, 2005).

Philippines fill an increasingly irreplaceable role in the care and moral and
physical support of thousands of elderly persons unable to defray the costs
of clinics and hospices.26
At the same time, there are growing numbers of homeless people, as we
have seen, who make up an organic part of the city tissue; these poor persons now include many Italians who have lost their jobs, students who fail
to find jobs, and a large number of 30-somethings who manage, at best,
to obtain small jobs on fixed-term contracts one year out of every two. To
what extent are these persons considered citizens?
In 2000, the city of Bologna set up a Street Lawyer office staffed entirely
by volunteers. This is designed to ensure free legal counsel and defence, in
cases of potential legal controversy, for people with no fixed abode living in
the city.27 During the five years since the inception of this office, the street
lawyers have dealt with some 500 cases. Homeless men and women, having
no residence, are unable to exercise the right to vote (those not figuring in
the registers of the population residing in a commune do not appear in the
electoral registers); they cannot fully benefit from the local healthcare service (those not resident have access to the public healthcare structures only
through the emergency services and cannot benefit from their own general
physician), nor can they regularise their position as regards a professional
register (since they have no status as residents, they cannot officially be
employed, thus are not registered for tax or VAT).
Among the most important cases are those involving homeless people
who come within the right to healthcare of the homeless in Bologna. Many
of these are denied hospital admission by certain city physicians, since no
kind of intervention is granted in relation to persons without residence
and thus lacking healthcare coverage. Yet the right to healthcare is envisaged as a fundamental one by the Italian Constitution, under Article 32,
which states: The Republic shall protect health as a fundamental right of
the individual.28 Though the majority of such persons are entitled to free
healthcare assistance through the National Health Service, many of them
have no physician since, being without residence, they are not registered
and therefore do not qualify for health coverage.
Other cases have to do with the norm providing for repatriation with
compulsory expulsion orders. As from September 2001, the police authorities in Bologna have intensified their on-the-spot activity, acting on express
orders from the Questore (Chief of Police). The most relevant item as
26 B Riccio, Le esperienze delle donne migranti nellambiente di lavoro e il difficile percorso
verso unorganizzazione di sostegno reciproco in A Sgrignuoli (ed), Stereotipi e reti sociali
tra lavoro e vita quotidiana. Unanalisi multiculturale della complessit di genere (Rimini,
Guraldi, 2004).
27 I Diritti e la povert, Collana Nuovamente (Bologna, Sigem, 2005).
28 A Arduini, Diritto alla tutela della salute dei senza fissa dimora in I Diritti e la povert,
Collana Nuovamente (Bologna, Sigem, 2005).

regards the Compulsory Expulsion Order would seem to concern persons
subjected to this procedure who fail to report elements in their defence that
demonstrate positive behaviour which would show their lack of tendency or
capacity to commit offences. The procedure concludes with the issue of an
order for their departure from Italian territory, the Compulsory Expulsion
Order. Their dangerousness is imputed merely to their being vagabonds
and idle.29 Hence the paradox of a local administration that, even while it
seeks to stem the continual influx of homeless, mainly from South to North,
issues expulsion orders that compel these persons to continual transferin
a word, to nomadism. In theory, were this practice to be adopted by all of
Italys police departments, it would lead to a situation whereby Italian citizens of no fixed abode would have no right to stay in any commune of their
own country; there are, indeed, recorded cases of people who have received
an expulsion order from more than one Italian commune.
While the value of the street lawyers is unquestionable, they are sometimes called upon to deal with emergency situations without having had
the time and/or the cultural background needed to analyse the matter. Their
discourses report infringements of rights, but contain no reference to the
individual biographies of the homeless persons concerned; rather, they
seek to essentialise these social actors, in such a way as to create dossiers
and subdossiers of the cases, merely with the aim of resolving specific
situations. In reading those dossiers, for instance, one gets the impression that, in relation to an immigrant social group (say Senegalese) or a
group of homeless from South Italy, while one may intervene to defend
specific universal rights, the battle to make those persons fully-fledged
citizens of Bologna is in vain; for determinate patterns of values and
behaviours recognised by them as cultural are inextinguishable since they
are transmitted from one generation to another: the reference is to value
and behaviour patterns that are recognised as not belonging to Bologna.
The usefulness of anthropology then lies not so much in deconstructing
the activity of those lawyers, but rather in criticising it by showing them
how these people often tend to implement a cultural behaviour according to contexts and convenience. In this regard it is worth asking ourselves
how useful it is, with a view to conducting a thorough analysis, to employ
concepts such as homeless and immigrant as closed categories referring
to social groups that are more or less homogeneous, or whether it would
be better to simply refer to a heterogeneous mass of women and men who
are denied even universal and constitutional rights directly stemming from
the more general right to citizenship, such as the right to vote and to
health.
29 A Murru, La misura del rimpatrio con foglio di via obbligatorio in I Diritti e la povert,
Collana Nuovamente (Bologna, Sigem, 2005).

As already mentioned, although it is incorrect to talk about a culture
of poverty insofar as the homeless of Bologna are concerned, it is possible
to recognise some elements (in terms of needs and expectations) common
to all of these people; needs and expectations which are different, in most
cases, from those of the numerous Senegalese immigrants who have been
living in Bologna for a considerable period of time. Even if it allows us to
construct useful categories, it is nonetheless important to avoid essentialising the order of the discourse dealing with such subjects as if they were
some kind of stable entities.
Aware of the various types of intervention (in terms of assistance and
universal rights) put into practice by social actors such as street lawyers or
immigrants associations, those outcasts represent themselves as homeless or non-EU immigrants according to the circumstances. It is not
exceptional to hear of cases such as that of an Italian homeless person
defining himself as a Rom immigrant just because some trade unions are
campaigning for Romanian immigrants, belonging to the Rom group, to
be recruited on the citys building sites, due to the lack of Italian workers;
or a North-African immigrant pretending to be homeless, aware that the
communal lists for housing give priority to the homeless, rather then to
immigrants, who appear only in a secondary list.
TRANSNATIONAL MIGRATION AND SEDENTARIST POLICIES
The right to residence is the right most frequently invoked in cases that
the street lawyers are called upon to deal with. Non-enrolment in a population register results in people not being able to enjoy the fundamental
rights recognised by the Italian Constitution, such as the right to housing.
Today, however, thanks to the cases taken by the street lawyers against the
Commune of Bologna, homeless persons can obtain residence in the public
dormitory structures: an association allowing them to register as citizens.
Bologna now has some 300 extra citizens, some of whom have already
found work and have embarked on the arduous route that will lead them
out of the precarious situation in which they find themselves.30
The issue of housing is among the most urgent problems and a requirement for all migrants in Italy. Moreover, this is the major concern of local
immigration policies. Wherever migrants live they have to confront the
racist demonstrations of their potential or actual neighbours. Although
many migrants are granted the permesso di soggiorno (residence permit),
this affects the possibility of transnational migration. It is only when the
permit is obtained and re-entry to Italy guaranteed that Senegalese can
30 A Mumolo and P Pizzi, Il diritto alla residenza: la prima causa degli avvocati di strada
in I Diritti e la povert, Collana Nuovamente (Bologna, Sigem, 2005).

start going backwards and forwards between the two countries and thus
manifest transnational mobility. Far from being in a post-national era,
as some transnational anthropologists seem to suggest,31 transnational
organisation still needs to negotiate and deal with national and local state
regulatory practices which can sometimes be exclusionary.32
As shown elsewhere,33 transnational strategies may clash with the sedentarist views which inform housing policies. Among social practitioners in
charge of the implementation of housing policies for migrants one may find
an ambivalent stance. The general consensus is that, in spite of difficulties
in having to deal with a constant turnover of Senegalese users because of
migrants reliance on communitarian networks, the ability of Senegalese
to accept life in big groups, with a representative dealing with the cooperatives, helped to shape the model of first reception within the receiving
context. On the other hand, the various practitioners and most of the documents produced on this topic urge the need to move to another stage of
immigration policies and of integration. They express the need to move on
to new housing policies that focus more on small apartments for families
than on big buildings (with the risk of ghettoisation and the threat to
the locals). This shift in thinking is due also to the increase in reunions of
family members. However, one of the problems stressed by practitioners
themselves is that out of 1,069 Senegalese, only 50 have been joined by
their families (5 per cent of Senegalese vs 37 per cent of Moroccans), which
seems to indicate that the dominant Senegalese organisational mode with a
strong orientation towards return and circularity suits the first reception
policy better than the second one.
The lack of attachment to Italy and the transnational mobility of the
Senegalese contrasts with the conceptions of immigrants expressed by the
majority of social practitioners. However, those views underpin policy
guidelines: the general orientation is to accept people who are coming with
the aim of settling for a while and to refuse the seasonal migrant who wants
to street sell: he is not interesting. Clearly, the implicit requirement of
settlement expressed by those practitioners testifies to the sedentarist logic
behind this work. There is a sedentarist metaphysics underlying the policies towards migrants and the way such policies are conceived.34 Senegalese
31 A Appadurai, Modernity at Large: Cultural Dimensions of Globalization (Minneapolis,

University of Minnesota Press, 1996).
32 MP Smith, Transnational Urbanism: Locating Globalization (Oxford, Blackwell, 2001).
33 B Riccio, The Italian Construction of Immigration: Sedentarist and Corporatist
Narratives Facing Transnational Migration in Emilia-Romagna (2000) 9 Anthropological
Journal on European Cultures 5374.
34 LH Malkki, National Geographic: the Rooting of Peoples and the Territorialization of
National Identity among Scholars and Refugees in A Gupta and J Ferguson (eds), Culture,
Power, Place (Durham, Duke University Press, 1997); M Callari Galli (ed), Nomadismi contemporanei (Rimini, Guaraldi, 2003).

transmigrants in the end are insufficiently disciplined users: they fit in, to
be sure, because they are able to bear the precariousness of reception policies, but they are not the ideal settler to integrate. We feel that the reason
for the ubiquity of these conceptions relies also on the identificatory power
of their professional practice in considering the exclusionary motives of
residentiality to be natural. The sedentary mode of life and its institutionalisation through provincial residence are taken for granted because of all the
administrative practices implied in such institutionalisation. In a country
where, thanks to the marginalisation of migrants, their particular characteristics and potential contribution are rarely taken into account in policy
decisions which reflect them, it seem increasingly necessary to overcome the
tension between the new migratory mode and traditional conceptions of
dwelling, although even that will not be sufficient for negotiating a potential realisation of rights for such persons.
However, our aim in this chapter was to discuss the need to embrace
analytically a broader conception of citizenship than that often provided
by political sciences, by considering social and political incorporation as a
contested and negotiated process implying different and occasionally contrasting perspectives. Certainly, citizenship is conferred by the nation-state,
but the enactment of rights and social engagement often begins at local level
and sometimes involves the foreign born who are not naturalised as much
as the unrecorded homeless are. These examples have been adduced to
show how anthropological and ethnographic explorations may contribute
to enhancing the understanding of the enactment of citizenship rights by
giving non-citizens a voice and by problematising the perspective held by
those in charge of the implementation of such rights.
SELECT BIBLIOGRAPHY
Anderson, N, Il vagabondo. Sociologia delluomo senza fissa dimora (Roma,
Donzelli, 1994)
Appadurai, A, Modernity at Large: Cultural Dimensions of Globalization
Arduini, A, Diritto alla tutela della salute dei senza fissa dimora in I Diritti e la
povert, Collana Nuovamente (I Quaderni (ed), Bologna, Sigem, 2005)
Bergamaschi, M, Ambiente urbani e circuito della sopravvivenza (Milano, Franco
Angeli, 1999)
Bonadonna F, Il nome del barbone: vite di strada e povert estreme in Italia (Roma,
Derive Approdi, 2001)
Bourdieu, P, La misre du monde (Paris, Editions du seuil, 1993)
Bourgois, P, In cerca di rispetto (Roma, Derive Aprodi, 2005)
Callari Galli, M (ed), Nomadismi contemporanei (Rimini, Guaraldi, 2003)
, Cittadinanze lacerate (2004) IV 7 Gomorra 1532
Dal Lago, A and Quadrelli, E, La citt e le ombre. Crimini, criminali, cittadini
(Milano, Feltrinelli, 2003)

Glick Schiller, N, Bsch, L and Szanton-Blanc, C, (eds), Towards a Transnational
Perspective on Migration (New York, NY Academy of Science, 1992)
Grillo, RD, Pluralism and the Politics of Difference (Oxford, Oxford University
Press, 1997)
King, R and Wood, N (eds), Media and Migration (London, Routledge, 2001)
Lewis, O, La cultura della povert e altri saggi di antropologia (Bologna, Il Mulino,
1973)
Malkki, LH, National Geographic: the Rooting of Peoples and the Territorialization
of National Identity among Scholars and Refugees in A Gupta and J Ferguson
(eds), Culture, Power, Place (Durham, Duke University Press, 1997)
Marshall, TH, Citizenship and Social Class (Cambridge, Cambridge University
Press, 1950)
Mumolo, A and Pizzi, P, Il diritto alla residenza: la prima causa degli avvocati di
strada in I Diritti e la povert, Collana Nuovamente (Bologna, Sigem, 2005)
Murru, A, La misura del rimpatrio con foglio di via obbligatorio in I Diritti e la
povert, Collana Nuovamente (Bologna, Sigem, 2005)
Ong, A, Flexible Citizenship: the Cultural Logics of Transnationality (Durham, Duke
Remotti, F, Luoghi e corpi. Antropologia dello spazio, del tempo e del potere
(Torino, Bollati Boringhieri, 1993)
Riccio, B, The Italian Construction of Immigration: Sedentarist and Corporatist
Narratives Facing Transnational Migration in Emilia-Romagna (2000) 9
Anthropological Journal on European Cultures 5374
, From Ethnic Group to Transnational Community? Senegalese Migrants
Ambivalent Experiences and Multiple Trajectories (2001) 27 Journal of Ethnic
and Migration Studies 58399
, Le esperienze delle donne migranti nellambiente di lavoro e il difficile
percorso verso unorganizzazione di sostegno reciproco in A Sgrignuoli (ed),
Stereotipi e reti sociali tra lavoro e vita quotidiana. Unanalisi multiculturale della
complessit di genere (Rimini, Guraldi, 2004)
, Transnazionalit urbana. Meticciato in citt ? in M Callari Galli, D Londei
and A Soncini Fratta (eds), Il meticciato culturale. Luogo di creazione, di nuove
identit o di conflitto? (Bologna, CLUEB, 2005)
Roversi, A and Bondi, C, Senza fissa dimora a Bologna (2006) Quaderni Citt
Sicure
Scandurra, G, Tutti a casa. Il Caracci: etnografia dei senza fissa dimora a Bologna
(Rimini, Guarladi, 2006)
Smith, MP, Transnational Urbanism: Locating Globalization (Oxford, Blackwell,
2001)
Soysal, YN, Limits of Citizenship: Migrants and Postnational Membership in
Europe (Chicago, University of Chicago Press, 1994)
Werbner, P et al, New Migrants in European Gateway Cities (unpublished, 2006)
Yuval-Davis N (1997) 57 Women, Citizenship and Difference, Feminist Review
427
11
Supporting Minority Rights:
Inter-Group Determinants and
Consequences
ANCA MINESCU
INTRODUCTION
The discourses on minority rights are theoretically framed by two sets of

political models describing our societies. On the one hand, the liberal ideas
on minority rights stress the importance of supplementing individual human
rights with group specific rights, given the centrality of cultural belonging
to individual identities.1 On the other hand, the political establishment of
human societies according to nation-state borders, and the nationalising
policies that accompany them, give emphasis to fears that minority rights
will undermine the stability of the current world order.2
These perspectives combine to provide several theoretical controversies in
need of empirical verification. While minority rights are about expressing
and exercising ones own culture, explaining the support for minority rights
is a matter of: (a) either identifying factors that motivate the endorsement
of minority rights, or (b) placing the minority rights issue in the complex
settings of particular inter-group relationships.
In the first category of challenges (a), three types of explanation are
proposed. First, some argue that supporting minority rights results from
believing in the centrality of cultural identity in individuals lives, and thus
1 W Kymlicka, Multicultural Citizenship (Oxford, Clarendon Press, 1995); W Kymlicka,

Nation-building and Minority Rights: Comparing West and East (2000) 26 Journal of Ethnic
and Migration Studies 183.
2 C Codagnone, and V Filippov, Equity, Exit and National Identity in a Multinational
Federation: the Multicultural Constitutional Patriotism Project in Russia (2000) 26 Journal
of Ethnic and Migration Studies 263; A Etzioni, The Evils of Self-determination (1993) 89
Foreign Policy 2135; GW Lapidus, Ethno Nationalism and Political Stability: the Soviet
Case in R Denber (ed), The Soviet Nationality Reader: the Disintegration in the Context
(Oxford, Westview Press, Inc, 1992).
222 Anca Minescu

should be highly related to ones cultural/ethnic identity.3 Others argue
for a more instrumental approach, maintaining that individuals who feel
particularly vulnerable in one situation will appeal to group rights in
order to improve their personal situation.4 So, it is either the psychological importance of ones membership to the group or the instrumentality of
group rights for individuals that determine support for minority rights. A
third type of explanation refers to an even more general ideological stance.
A meritocratic view of our democratic societies promotes individual merit
rather than group rights as the basis of economic, political and social participation. Those with more meritocratic views are less likely to support
minority rights. Thus, instead of cultural considerations and social identifications, or more instrumental motives, it is a meritocratic ideology that
promotes opposition to minority rights.5 Because of its limited applicability
to the research setting of our investigation in the Russian Federation, the
meritocratic explanation is not further pursued in this chapter.
In the second category of challenges (b), other authors prioritise the
specific structural context and power relationships against which the discussion of minority rights takes place.6 Within the framework of a national
state, where the dominant majority usually has a cultural monopoly on
the social and institutional life in the state, the actual provision of minority rights becomes a political struggle.7 While on an individual level, one
may agree with the basic right of individuals to express and exercise their
own culture, at the group level, minority rights become a matter of power
sharing and a challenge to the status quo that favours the majority to the
detriment of other (minority) groups.8 The problem therefore is not only
a purely ideological debate about allowing or not allowing certain rights
on the basis of group membership, but is rather a structural debate about
3 M Verkuyten, Ethnic Group Identification and Group Evaluation among Minority and
Majority Groups: Testing the Multiculturalism Hypothesis (2005) 88 Journal of Personality
and Social Psychology 121.
4 G Evans and A Need, Explaining Ethnic Polarization over Attitudes towards Minority
Rights in Eastern Europe: a Multilevel Analysis (2002) 31 Social Science Research 653; M
Verkuyten and AA Yildiz, The Endorsement of Minority Rights: the Role of Group Position,
National Context and Ideological Beliefs (2006) 27 Political Psychology 527.
5 M Gilens, PM Sniderman and JH Kuklinski, Affirmative Action and the Politics of
Realignment (1998) 28 British Journal of Political Science 159; B Barry, Culture and Equality:
an Egalitarian Critique of Multiculturalism (Cambridge, Polity Press, 2001).
6 G Massey, R Hodson and D Sekulic, Ethnic Enclaves and Intolerance: the Case of
Yugoslavia (1999) 78 Social Forces 669; G Smith, Russia, Multiculturalism and Federal
Justice (1998) 50 Europe-Asia Studies 1393.
7 Kymlicka, n 1 above; R Baubock, Cultural Minority Rights for Immigrants (1996) 30
International Migration Review 203; ME McIntosh, ME MacIver, DG Abel and DB Nolle,
Minority Rights and Majority Rule: Ethnic Tolerance in Romania and Bulgaria (1995) 73
Social Forces 939.
8 H Blumer, Race Prejudice as a Sense of Group Position (1958) 1 Pacific Sociological
Review 3.
Supporting Minority Rights 223

preventing or not preventing the institutional legitimisation of group-based
power claims.
This type of concern about the status quo is built against the background
of the principle of national self-determination which has laid the foundations for all modern day states since the later nineteenth century.9 Ethnic
groups concentrated on a particular territory claimed and were given the
right to politically control that territory in their own interest, gaining
national autonomy or becoming nation-states.10 Today, national majorities
are threatened by the application of the same principle of cultural/national
self-determination in claims for minority rights.11 The contradiction lies in
the potential of minority rights to either prevent or encourage national/territorial separatism and conflict. By institutionalising the recognition of
minorities rights to power sharing within the borders of the nation-state,
the inter-group situation may be stabilised by ensuring equal and fair representation of all groups within the political sphere.12 However, the fear is
that minorities will not be satisfied with such internal arrangements and
instead will continue their struggle for power by pursuing national separatism, thus threatening the territorial integrity of the nation-state.13
MINORITY RIGHTS IN THE RUSSIAN FEDERATION
In Russia, politics are closely intertwined with the sociological consequences of granting minority rights, because Russian policies of institutionalised multiculturalism provide cultural autonomy to certain ethnic groups,
the so-called titular groups.14 Of 128 ethnic groups living in Russia, 41 are
constitutionally defined as titular nationalities (1977 Soviet Constitution),
namely those groups granted territorial autonomy officially recognised and
defined as indigenous communities and the only legitimate bearers of state
level authority within the territory of their autonomy.15 For 21 of these
9 JJ Preece, National Minority Rights vs. State Sovereignty in Europe: Changing Norms in
International relations? (1997) 3 Nations and Nationalism 345; A Kreptul, The Constitutional
Right of Secession in Political Theory and History (2003) 17 Journal of Libertarian Studies
39; R Lukic, Twilight of the Federations in East Central Europe and the Soviet Union (1992)
45 Journal of International Affairs 576.
10 V Tishkov, Ethnicity, Nationalism and Conflict in and after the Soviet Union (London,
Sage, 1997); MG Marshall, States at Risk: Ethnopolitics in the Multinational States of
Eastern Europe in TR Gurr (ed), Minorities at Risk (Washington, United States Institute of
Peace Press, 1993); Lapidus, n 2 above.
11 See K De Feyter, Chapter 1.
12 Smith, n 6 above; T Rakowska-Harmstone, Chickens Coming Home to Roost: a Perspective on Soviet Ethnic Relations (1992) 45 Journal of International Affairs 519; DL Horowitz,
Ethnic Groups in Conflict (Berkeley, University of California Press, 1985).
13 Lukic, n 9 above.
14 Smith, n 6 above; Codagnone and Filippov, n 2 above.
15 Codagnone and Filippov, n 2 above, p 266.
224 Anca Minescu

titular nationalities, their autonomy is extended to the level of territorially
autonomous republics, which represents the highest level of self-governance
within the Russian federal system.
This type of ethnic federalism originated with the Soviet Nationalities
Policy around 1923, which officially institutionalised ethnicity as nationality, based on the size of the ethnic group and their historical association
with a particular territory.16 This territorialisation of ethnicity and its implications with respect to the enforcement of group rights leaves 86 non-titular
nationalities (6.4 per cent of Russias population) as well as 53 per cent of
all titular nationalities who live outside their own titular republics (in all
around 17 million of the total 27 million non-Russian people) without protection of their ethnocultural rights.17 In addition, concerns are raised with
respect to the conditions and rights of the Russian minorities living in the
titular autonomous republics, who also remain vulnerable.18
The question of minority rights is thus highly relevant in Russia, where
granting various degrees of cultural autonomy and officially recognising
some groups and their specific rights were means of managing the tremendous ethnic diversity. However, the ethnoterritorial principle of enforcing
minority rights is problematic in two crucial aspects: first, it strengthens
the borders of the autonomous units: what happens to those titular groups
living outside their autonomies? And, secondly, it may cultivate the seeds
for further territorial disintegration of the Federation: titular groups aim at
extending their rights to self-determination up to claiming separatism from
the Federation.19
Finally, the position of titular groups living in their autonomous republics
best illustrates the political and social dilemmas raised by the multicultural
doctrine: while it is in their interest vis--vis Moscow to support minority
rights (to achieve more group benefits), within their own republics opposing minority rights is an important means of establishing and enforcing
a dominant status and advantageous position vis--vis the other groups
(including the Russians) living within the borders of the republics.
The current research provides an empirical test to the extent to which
titular groups and Russians support for minority rights is affected by the
territorialisation of cultural rights, by the relative status of the groups inside
and outside the autonomous republics, as well as by their identification with
their ethnic groups and their subsequent perceptions of relative deprivation.
16
Tishkov, n 10 above; Rakowska-Harmstone, n 12 above; Lapidus, n 2 above.

Tishkov, n 10 above; V Stepanov, Ethnic Tensions and Separatism in Russia (2000) 26
Journal of Ethnic and Migration Studies 305.
18 Rakowska-Harmstone, n 12 above; Stepanov, n 17 above; Smith, n 6 above.
19 See Lukic, n 9 above; L Hagendoorn, H Linssen and S Tumanov, Inter-group Relations in
States of the Former Soviet Union: the Perception of Russians (Hove, Psychology Press, 2001)
for a discussion of the domino effect theory.
17

Furthermore, we investigate the strength of the association between supporting minority rights and the desire for more autonomy in the form of
independence from the Federation.
SUPPORTING MINORITY RIGHTS FROM THE PERSPECTIVE OF

SOCIOLOGICAL AND SOCIAL-PSYCHOLOGICAL THEORIES
We investigate if these theoretical and political controversies about minority rights are reflected in peoples attitudes towards minority rights. It is the
first aim of this chapter to examine the extent to which minority rights are
endorsed in the Russian Federation. Insights from sociological and socialpsychological theories are employed in order to formulate testable hypotheses. Blumers theory on prejudice as a sense of group position20 proposes
that, based on the status of their own group in the inter-group context,
people will be more or less inclined to support minority rights. The political
relevance and implications of the minority rights question provide different
motivations to pursue or oppose those rights whether one is in a dominant
or a subordinate position. In other words, the reasons why a multicultural
ideology is often embraced by subordinate groups and rejected by dominant
groups are structurally determined. The institutional power and status of
groups relative to each other result in an asymmetric interest in minority
rights, seen as threatening by the dominant groups, but as a means to promote group interests by subordinate groups.21
This sociological perspective is helpful in providing a framework for the
analysis of attitudes toward minority rights. The main claim is that ones
group position will, by definition, determine individual support for minority rights. However, this claim is only valid as long as group membership
is important to the individual. Therefore, social-psychological theories are
employed to provide the more specific individual mechanisms, which indicate how the effects of contextual/structural characteristics come to affect
individual attitudes. Such a multidisciplinary approach makes it easier for
the social scientist to analyse the way people think and approach minority rights. The two perspectives (sociological and social-psychological)
employed in the current chapter situate the analysis at the individual level,
leaving the larger context of the debate on group rights in the background.
Naturally, the national and international environment in which individuals live largely affects their normative beliefs. Some of these factors are
20
Blumer, n 8 above.
Baubock, n 7 above; Verkuyten, n 3 above; Verkuyten and Yildiz, n 4 above; P Scheepers,
M Gijsberts, and M Coenders, Ethnic Exclusionism in European Counties: Public Opposition
to Civil Rights for Legal Migrants as a Response to Perceived Ethnic Threat (2002) 18
European Sociological Review 17; Massey, Hodson and Sekulic, n 6 above.
21
226 Anca Minescu

extensively discussed in the various chapters of this book. The focus here,
however, is on how the perceptions of the individuals themselves of their
inter-group situation affect their own normative beliefs about minority
rights.
Social identity theory,22 including self-categorisation theory, proposes the
degree to which people identify with their social group as a central explanation for peoples behaviour in an inter-group situation. Categorising
themselves as a member of a particular group will have important consequences on peoples attitudes and behaviours, such as manifesting ethnocentric and antagonistic biases in favour of the ingroup, and derogating
and excluding outgroups.23 Self-categorisation is the central mechanism
through which individuals internalise the social structure, and which makes
individual attitudes responsive to the structural characteristics of the intergroup situation.
Self-categorisation as a central social-psychological mechanism relating
individuals to their social environment determines the extent to which
people are tolerant of outgroups and therefore willing to assist them in their
struggle to improve their status quo (ie supporting minority rights); or, on
the contrary, intolerant and denying that any inequalities in need of remedy/
redress even exist.24 If ethnic distinctions (ethnic categorisations) are highly
salient in a society, inter-group discrimination is more likely,25 and thus
the issue of minority rights can become highly divisive. Often, it is the case
that ethnicity is closely linked to claims for minority rights especially for
subordinate groups, who can benefit the most from employing such issues
in their power struggle with the dominant groups.
Furthermore, the salience of ethnic categories is also related to the degree
of group-based relative deprivation people perceive in their inter-group context.26 People who prioritise their ethnic group membership are more likely
to compare their group to others, and thus more likely to perceive group
differences in the distribution of social, cultural and political advantage.
22 H Tajfel, Social Identity and Intergroup Relations (Cambridge, Cambridge University

Press, 1982).
23 N Ellemers, R Spears and B Doosje, Self and Social Identity (2002) 53 Annual Review
of Psychology 161; CW Leach, A Iyer and A Pedersen, Angry Opposition to Government
Redress: When the Structurally Advantaged Perceive Themselves as Relatively Deprived
(2007) 46 (1) British Journal of Social Psychology 191204; M Brewer, The Psychology of
Prejudice: Ingroup Love or Outgroup Hate? (1999) 55 Journal of Social Issues 429.
24 MJ Hornsey and MA Hogg, Assimilation and Diversity: an Integrative Model of
Subgroup Relations (2000) 4 Personality and Social Psychology Review 143; Leach, Iyer,
and Pedersen, n 23 above; McIntosh, MacIver, Abel and Nolle, n 7 above.
25 Brewer, n 23 above; A Minescu, L Hagendoorn, and E Poppe, Types of Identification and
Intergroup Differentiation in the Russian Federation (2006, under review).
26 TR Gurr, Why Men Rebel (Princeton, Princeton University Press, 1970); Leach, Iyer and
Pedersen, n 23 above; McIntosh, MacIver, Abel and Nolle, n 7 above.

Runciman27 termed the feelings and perceptions of an unjust distribution of
outcomes between ingroup and outgroups as fraternal deprivation (different from personal deprivation). It was found that perceiving disadvantage
at the group level (relative fraternal deprivation) was associated to engagement in collective action to change the status quo.28 Relative deprivation
reflects the psychological experience of a social structure in which groups
are not treated equally, and will most likely be more central in the lives of
the subordinate than of the dominant groups.29
Ethnic identification and relative deprivation are expected to play an
important role in motivating individuals support for minority rights, a role
that is further conditioned by the structural position of the groups to which
these individuals belong.30
To sum up, this chapter aims to determine to what extent political controversies are reflected in individual attitudes toward minority rights, and
whether those attitudes can be explained by employing specific theoretical assumptions about the role of group position, ethnic identification
and perceptions of relative deprivation. By using sociological and socialpsychological theories, we systematically derive testable hypotheses on
the influence of specific structural and individual factors on supporting
minority rights.
RESEARCH QUESTIONS
First, to what extent do people support minority rights as a normative

political principle and what motivates this support? We specifically address
the normative support for minority rights, which indicates a general belief
in the ideology of multiculturalism. This specification is important, because
it underlies the substantive and empirical difference between normative
beliefs and peoples actual experiences with minority rights. It is assumed
that peoples a priori held opinions about what is the right and legitimate
way to deal with group-based claims will affect the way those people
experience minority rights in their daily lives. However, in this study, we
27 WC Runciman, Relative Deprivation and Social Justice: a Study of Attitudes to Social

Inequality in Twentieth Century England (Berkeley, University of California Press, 1966).
28 I Walker and TF Pettigrew, Relative Deprivation Theory: an Overview and Conceptual
Critique (1984) 23 British Journal of Social Psychology 301; S Guimond and L Dube-Simard,
Relative Deprivation Theory and the Quebec Nationalist Movement: the Cognition-Emotion
Distinction and the Personal-Group Deprivation Issue (1983) 44 Journal of Personality and
Social Psychology 526.
29 But see Leach, Iyer and Pedersen, n 23 above.
30 L Bobo, and VL Hutchings, Perceptions of Racial Group Competition: Extending
Blumers Theory of Group Position to a Multiracial Social Context (1996) 61 American
Sociological Review 951; L Bobo, Prejudice as Group Position: Micro-foundations of a
Sociological Approach to Racism and Race Relations (1999) 55 Journal of Social Issues 445.
228 Anca Minescu

investigate how specific individual perceptions and the inter-group situation
affect the more general normative support for minority rights. The next
analytical step for future research is to look into how the normative support
for minority rights and other factors are related to the actual experience of
these rights in more mundane situations.
Hypothesis 1 proposes that group members who are in a subordinate
position are more likely to normatively endorse minority rights. This prediction is based on the assumption that minority rights are seen as a means
to improve the subordinate group position vis--vis the dominant/majority
group. Thus, minority rights are seen as a threat and are therefore opposed
by majorities/dominant groups,31 while they are strongly endorsed by subordinate minorities as a solution to redress their systemic disadvantage.32
In the Russian Federation, titular groups represent a numerical minority
(altogether, non-Russians amount to less than 15 per cent of the total
population) and compared to Russians are in a subordinate cultural, social
and economic-political position. However, within their own titular autonomous republics, the status of the titular groups is greatly enhanced by their
constitutional recognition, which puts even the Russians living inside these
republics in a relatively disadvantaged position.33 We expect that in general, within the framework of the whole Federation, titular groups endorse
minority rights more than Russians; however, this relationship should be
moderated by the location of residence inside or outside the republics.
Titular groups should endorse minority rights more than Russians, especially when they live outside the protective boundaries of the autonomous
republics, where their subordination is salient (hypothesis 1a). At the same
time, the position of status (and sometimes even numerical) dominance
inside the republics should provide incentives to titular groups to oppose
minority rights. In a study of several East European countries, it was found
that minorities support minority rights significantly more than majorities.34
Thus, comparing titular groups as a majority/dominant group inside the
republics, with titular groups living outside the republic where they are
in a minority/subordinate position, we propose that the latter group will
endorse minority rights significantly more than the former group (hypothesis 1b). And, similarly, Russians living outside republics (in a position of
dominant majority) will endorse minority rights less than Russians living
inside titular republics (hypothesis 1c).
31 P Scheepers, M Gijsberts and M Coenders, Ethnic Exclusionism in European Counties:

Public Opposition to Civil Rights for Legal Migrants as a Response to Perceived Ethnic Threat
(2002) 18 European Sociological Review 17; Massey, Hodson and Sekulic, n 6 above.
32 Blumer, n 8 above; Bobo and Hutchings, n 30 above; Bobo, n 30 above; Verkuyten and
Yildiz, n 4 above.
33 Stepanov, n 17 above; Marshall, n 10 above.
34 Evans and Need, n 4 above.

The ideology of multiculturalism and minority rights is protective especially of those who belong to subordinate groups.35 Membership in subordinate groups is expected to be associated with a stronger belief in the
multiculturalism thesis regarding the importance of ones cultural/ethnic
identity.36 A high degree of group identification predicts taking action in the
name of the group and being involved in group level strategies of redressing
disadvantage.37 Hypothesis 2 proposes that identification with ones ethnic
group predicts normative support for minority rights, especially among the
subordinate groups, namely the titular groups.
At the same time, membership in a subordinate group may be associated
with feelings of vulnerability and increased perceptions of relative deprivation.38 Thus, supporting minority rights may be of instrumental concern to
those who need the protection of multicultural ideology and policies;39 in
other words, the more individuals perceive their group as being relatively
deprived, the more inclined they will be to pursue some form of collective
action to redress the situation. Supporting minority rights can be conceived
as a collective strategy to improve the ingroup status. Previous research
has verified this relationship with respect to individuals involvement in the
civil rights movement and their participation in riots,40 and also regarding
individuals support for nationalistic movements.41 Thus, we propose that
perceptions of relative deprivation are positively associated with more normative support for minority rights, and that this is the case for groups that
are especially vulnerable: titular groups living outside their republics and
Russians living inside titular republics (hypothesis 3).
Secondly, is normative support for minority rights associated with separatist claims? Minority rights and multicultural ideology are seen to pose a
threat to social cohesion by accentuating and strengthening the divisiveness
of ethnic boundaries.42 Some research documents a negative association
between supporting minority rights and believing in the importance of
state unity, especially among minority groups.43 Thus, it seems that allowing minority rights is perceived as a path to fragmentation of the current
national state. Politically, the right to cultural autonomy can be extended
35 Kymlicka, n 1 above; J Berry and R Kalin, R Multicultural and Ethnic Attitudes in

Canada: an Overview of the 1991 National Survey (1995) 27 Canadian Journal of Behavioral
Science 301.
36 Verkuyten, n 3 above.
37 Ellemers, Spears and Doosje, n 23 above.
38 Blumer, n 8 above; Bobo and Hutchings, n 30 above; Bobo, n 30 above; McIntosh,
MacIver, Abel and Nolle, n 7 above.
39 Berry and Kalin, n 35 above.
40 RD Vanneman and TF Pettigrew, Race and Relative Deprivation in the Urban United
States (1972) 13 Race 461; Walker and Pettigrew, n 28 above.
41 Guimond and Dube-Simard, n 28 above.
42 Barry, n 5 above; Kymlicka, n 1 above; Hornsey and Hogg, n 24 above.
43 Verkuyten and Yildiz, n 4 above.
230 Anca Minescu

to a higher level into claims for complete territorial separatism, especially
for groups considered as national minorities.44 It is often feared that groups
who are already given rights to collective autonomy will follow their political struggle by also claiming and implementing the right to secession.45 It
is expected that subordinate groups (titular groups) aiming at changing the
status quo will be more likely to see separatist claims as a positive/natural
extension of minority rights (hypothesis 4). However, one exploratory
question remains: how does the territorialisation of minority rights in the
form of cultural autonomy affect this relationship? Will the titular groups
who live inside the autonomous republics feel protected by their political
status and thus diminish their claims for more political power in the form
of separatism? Or, on the contrary, verifying the more pessimistic views,
will the association between normative support for minority rights and the
support for separatism be strengthened among those who feel encouraged
by territorial cultural autonomy?
METHODS
The way that individuals perceive issues around the minority rights question is analysed with survey data collected in the spring of 2005. In the
Russian multi-ethnic setting, inside and outside the territories of the autonomous republics, there is a natural variation in the dominant-subordinate
status of the Russian and titular groups, as well as in their group size across
several republics of the Federation.
The survey was conducted among 2,427 titular groups and 2,431
Russians, living inside five autonomous republics of the Russian Federation
(Bashkortostan, Karelia, Komi, Yakutia, Tatarstan: around 400 of each
titular group and 400 Russians living inside these republics), as well as
outside these republics, in five locations (around 100 Russians and 100
titular groups: Komi in Perm, Tatars in Saratov, Karels in Tver, Bashkirs in
Cheliabinsk, Yakuts in Moscow). This design was chosen to allow an analytical comparison of the attitudes of those groups living inside and outside
the territories of the autonomous titular republics. At the same time, within
each location, random samples of titulars and Russians were selected, in
order to indirectly control contextual characteristics, while the interest of
our investigation lay primarily with inter-group attitudes.
The selection of the respondents was done according to an elaborated
procedure aimed at achieving a random sample. Within each republic, only
urban locations with a population of more than 10 per cent Russians were
selected. Furthermore, a spiral was placed on top of the whole city plan in
44
45
Baubock, n 7 above; Kymlicka, n 1 above.

Lukic, n 9 above; Rakowska-Harmstone, n 12 above; Stepanov, n 17 above.

order to select 19 survey points. At each survey point (identified streets),
buildings and apartments were further selected by applying random rules.
Within a household the person whose birthday was closest to the interview
date was selected.
Both Russian and titular individuals were interviewed about their normative support for two general minority rights, phrased in the following ways:
Ethnic groups should be allowed to establish their own schools and Ethnic
groups should have the right to set up their political organisations. Also,
questions were asked regarding their perception of relative deprivation (The
[titular/Russian] people have better job opportunities than the [Russians/
titular group]; The use of the [indigenous/Russian] language at schools
and higher educational institutions reduces the educational opportunities of
the [Russians/titular group]). The results for these two questionnaire items
were combined in a mean score to provide the variable relative deprivation;
the reliability coefficients (Cronbachs alphas) for the new scale were: 0.68
for the Russians and 0.56 for the titular group. Respondents were also asked
to respond to statements about their identification with their ethnic groups
(for Russians: It is of great importance for me to be a Russian and I am
proud to be a Russian, and for the titular group: It is of great importance
for me to be regarded as a fellow [titular] person by the [titular group] and
I am proud to be regarded as a [titular] person). Those two identification
items were combined in one variable called ethnic identification with the
reliability coefficients for Russians being 0.87 and for the titular group 0.91.
Finally, support for separatism of the titular republics was assessed with the
responses to the statement: The republic should become fully independent
from Russia.
All questions could be answered on a scale from 1 (completely disagree)
to 5 (completely agree).
ANALYSIS AND RESULTS
The survey data was analysed statistically (using SPSS) to provide tests for
the hypotheses. In Table 11.1 the results of several analyses of variance
(ANOVA) are presented, to test hypothesis 1. This type of analysis compares
the mean scores on the normative support for minority rights across different groups: between titular and Russian, and between those living inside
and outside the autonomous republics. Thus, the main and interaction
effects of two factors: ethnic groups (Russian and titular) and location (their
current residence relative to the titular republics) are tested against standard
levels of significance. Separate analyses were conducted for the right of ethnic groups to have their own schools and the right of ethnic groups to have
their own political organisations, aiming to determine which group (ethnic
or location-based) scores higher on supporting these goals.
232 Anca Minescu

The findings largely support hypotheses 1, indicating that titular groups,
as subordinate groups in the Federation, normatively support minority
rights significantly more than the Russians. This is true for both rights,
especially among those groups living outside the republics: titular people
are more in favour of minority rights than Russians in the context of the
larger Federation (F(1,4583) = 9.27, p < 0.01 for right to own schools and
F(1,4583) = 10.15, p < 0.01 for right to political organisations), while the
difference is not significant inside the borders of the autonomous republics
(hypothesis 1 is verified).
Hypotheses 1b and 1c are only partially verified across the two types of
minority rights. With respect to the right to own schools, titular people living outside their republics are significantly more in favour than titular people
living inside the republics, where this right is already enforced (F(1,4583) =
13.43, p < 0.001; hypothesis 1b verified). For the Russians, there are no significant differences in support for this cultural right, probably because there are
Russian schools everywhere in the Russian federation. However, regarding
the right to political organisations, there is a significant difference among the
Russians depending on their current residence: Russians living inside titular
republics score higher on supporting this minority right than Russians living
outside the republics (F(1,4583) = 22.19, p < 0.001; hypothesis 1c verified).
These results indicate how normative support for minority rights is closely
linked to the social reality in which individuals live. Endorsing minority
rights is related to the status of ones group, but, even more specifically, this is
adapted to specific spheres of life where this status-difference is employed: the
cultural one for the titular people outside their republics, and the political one
for the Russians who might feel vulnerable (and insufficiently represented)
inside the titular republics.
Hypothesis 2 proposed an explanation for the normative support of
minority rights based in particular on the importance of ethnic identification to people belonging to subordinate groups. Hypothesis 3 advanced
an additional explanation, focusing on the perceptions of relative deprivation as a motivation for the normative support of minority rights. This
explanation should also apply in particular to those groups who feel more
vulnerable and appeal to the ideology of multiculturalism as a protection
mechanism.
Table 11.2 contains the results of multivariate analysis of covariance
(MANCOVA) providing the concomitant test of hypotheses 2 and 3, on
the two types of minority rights: the right to own schools and the right
to political organisations. This type of analysis allows for an overall test
of normative support for minority rights in general (across the two types of
rights) by providing a multivariate statistic (the Pillais F). At the same time,
it provides independent tests for each of the two minority rights, generating coefficients for the predictor variables for each outcome variable. The
analytical model contains two factors: ethnic groups and residence; two
9.27**
0.39 ns
0.00 ns
10.15**
Between inside and outside republics
Between titulars and Russians Inside republics
Between titulars and Russians Outside republics
3.38 (1.60)
22.19***
3.43 (1.54)
0.02 ns
3.98 (1.27)
Inside
N = 1832
3.04 (1.56)
3.99 (1.36)
Outside
N = 458
Russian
All variables measured on a scale from 1 (completely disagree) to 5 (completely agree). Higher scores indicate more normative support
for the minority right.
b Results of analysis of variance are reported; F value and significance levels: ***p < 0.001, **p < .001, and *p < .005, ns = non-significant
difference.
Anova tests of
differences
F(1,4583)
3.43 (1.37)
0.26 ns
Between titulars and Russians Outside republics
13.43***
4.25 (1.25)
Outside
N = 445
Titular
4.00 (1.32)
Inside
N = 1852
Between titulars and Russians Inside republics
Between inside and outside republics
Support for right to political organisations

Mean (SD)
Anova tests of
differences
F(1,4583)b
Support for right to own schoolsa

Mean (SD)
Current Residence Relative to the

titular Republics
Ethnic groups
Table 11.1: Normative Support for Minority Rights and Group Position
234 Anca Minescu

covariates as predictor variables: ethnic identification and relative deprivation; and several interaction effects between the covariates and the factors.
Significant interaction terms indicate whether the effects of ethnic identification and relative deprivation on the normative support for minority
rights are different between titular people and Russians (two-way interaction between the covariates and the ethnic groups factor), or between those
who live inside and outside the republics (two-way interaction between the
covariates and the residence factor), as well as between ethnic groups in a
particular location (three-way interaction between the covariates, the ethnic
factor and the residence factor). Where significant, the interaction terms are
further analysed by simple slope analyses, which provide coefficients for the
predictor variables for each level of the factors (for example, it indicates
how ethnic identification is related to normative support for minority rights
for Russians, and separately for the titular group).
Hypothesis 2 is verified by our analyses: ethnic identification is significantly and positively related to the normative support for minority rights in
general (Multivariate Pillais F(2,2226) = 10.99, p < 0.01), but more so for
the cultural right to own schools (Univariate F(1,4455) = 21.92, p < .001;
B = 0.10) than for the political right to political organisations (Univariate
F(1,4455) = 6.01, p < 0.05; B = 0.06). Furthermore, the significant interaction term between ethnic identification and ethnic groups and the subsequent
simple slope analysis revealed that this is the case only for the titular (subordinate) groups. For the Russians, the relationship between ethnic identification and their support for both minority rights is not significant. These
results correspond to findings of previous research, which indicate that the
multiculturalism thesis regarding the importance of ethnic/cultural identity
applies differently to subordinate than to dominant groups.46 It is especially
those who are in a disadvantaged position that seem to endorse a multicultural ideology, and for them ethnic identification is a reliable predictor for
their support of minority rights. For the dominant groups, multiculturalism
is often interpreted as a threat to the current status quo, and denying the
centrality of culture and ethnicity is a way to justify the lack of support for
minority rights. This seems to be the case in the Russian context as well.
Hypothesis 3 is also confirmed by the results: relative deprivation is a significant predictor for the normative support for minority rights, in general
(Multivariate F(2,2226) = 8.20, p < 0.001), and again more so the cultural
right to own schools (Univariate F(1,4455) = 16.17, p < 0.001; B = 0.08)
than for the political right to organisations (Univariate F(1,4455) = 6.37,
p < 0.05; B = 0.06). Moreover, significant interaction effects further qualify
this finding. Perceptions of relative deprivation are positively associated
46
Verkuyten, n 3 above; Verkuyten and Yildiz, n 4 above.

with more normative support for the cultural right to own schools for
the groups that are especially vulnerable: titular groups living outside their
republics (simple slope analysis of the three-way interaction between relative deprivation, ethnic groups and residence: F(1,4455) = 21.89, p < 0.001,
B = 0.24) and Russians living inside titular republics (simple slope analysis:
F(1,4455) = 7.41, p < 0.01, B = 0.06). The titular groups living outside their
republics are also the ones for whom higher scores on relative deprivation
correspond to higher support of the political right to organisations (simple
slope analysis: F(1,4455) = 15.48, p < 0.001, B = 0.25). When it comes to
residence effects, irrespective of the ethnic differences, it seems that relative
deprivation determines support for minority rights especially among those
living outside the republics (F(1,4455) = 11.64, p < 0.01, B = 0.12 for the
cultural right, and F(1,4455) = 7.41, p < 0.05, B = 0.12 for the political
right).
These findings indicate two aspects of the processes underlying normative
support for minority rights. On the one hand, the position of ones group in
a particular political setting can amplify or reduce ones feelings of vulnerability and perceptions of being in a relatively deprived position, and this
in turn will predict ones support or opposition to minority rights. On the
other hand, normative support for minority rights is a more differentiated
process than expected, or to put it differently, a particular type of minority
right is associated with a particular reaction. In our analyses, the effects of
ethnic identification and relative deprivation are related more strongly to
the cultural right to own schools than to the political right to organisations. This points to both the sensitivity of the cultural issues in the context
of Russian-titular relationships in Russia, and also raises a methodological
concern for future research with respect to the choice and variety of rights
about which respondents were interviewed.
Lastly, we investigated the relationship between the normative support for
minority rights and support for separatism of the republic from the Russian
Federation (see Table 11.3). The expectation that subordinate groups (titular groups) aiming at changing the status quo would be more likely to see
separatist claims as a natural extension of minority rights (hypothesis 4)
was confirmed. MANCOVA analyses were performed on each of the two
minority rights. While controlling the ethnic and residence differences on
supporting minority rights (two factors are introduced in the model: ethnic
groups and residence), we investigated the main effect of support for separatism (the covariate predictor) and its two-way interactions with the two
factors. In this way we can find out whether normative support for minority
rights is positively associated with support for separatism differently for the
two ethnic groups and between the two locations of the survey: inside and
outside the republics. Thus, we can answer the question whether the association between normative support for minority rights and the support for
5.37*
0.99 ns
6.99**
0.17 ns
7.41**
7.53**
16.17*** 0.08 (.02)

0.29 ns 0.01 (0.01)
4.84*
0.04 (0.02)
4.80*
0.04 (0.02)
11.64**
0.12 (0.04)
14.62***
Relative deprivation
Two-way interaction with ethnic groups
Two-way interaction with residence
Inside
Outside
Three-way interaction with ethnic groups and
residence
Inside
Titulars
Russians
Outside Titulars
Russians
0.23 ns 0.01 (0.03)

0.58 ns 0.02 (0.02)
15.48*** 0.25 (0.06)
0.12 ns 0.02 (0.06)
0.13 ns
6.37**
12.88***
0.08 ns
7.89**
8.20***
1.16 ns
4.08*
3.74*
6.62**
5.74**
5.40**
10.99**
11.78***
25.19***
0.27 ns
1.05 ns
Multivariate Pillais
F(2,2226)
Across both rights
B = unstandardized regression coefficient, SE = standard error.

Note: Results of multivariate analysis of co-variance are reported; Significance levels: ***p < 0.001, **p < 0.01, and *p < 0.05, ns =
non-significant difference.
6.09*
0.24 (0.10)
10.38**
0.39 (0.12)
6.01*
0.06 (0.03)
7.93**
0.06 (0.02)
15.16*** 0.12 (0.03)
0.04 ns
0.01 (0.03)
1.98 ns 0.04 (0.02)
10.32** 0.25 (.08)

0.90 ns
0.10 (.10)
21.92*** 0.10 (0.02)
23.18*** 0.08 (0.02)
49.98*** 0.18 (0.03)
0.52 ns
0.02 (0.03)
0.94 ns 0.02 (0.02)
Ethnic groups (Titulars/Russians)

Residence (inside/outside titular republics)
Ethnic Identification
Two-way interaction with ethnic groups
Titulars
Russians
Two-way interaction with residence
0.00 ns 0.00 (0.02)

7.41**
0.06 (0.02)
21.89*** 0.24 (0.05)
0.00 ns 0.00 (0.05)
Univariate F(1,4455);
B(SE)
Univariate F(1,4455);
B(SE)a
0.06 (0.02)
0.02 (0.02)
0.06 (0.02)
0.01 (0.02)
0.12 (0.04)
Support for right to

political organisations
Support for right to

own schools
Table 11.2: Predicting Normative Support for Minority Rights from Ethnic Identification and Relative Deprivation
236 Anca Minescu

separatism is strengthened or diminished for those protected by territorial
cultural autonomy (namely, titular groups living inside their republics).
The significant interaction between support for separatism and ethnic
groups and the subsequent simple slope analysis indicates that for titular
groups, supporting separatism does go hand in hand with their normative
support for both the cultural and the political minority rights (the relationship with the latter unsurprisingly being stronger: F(1,3890) = 38.95,
p < 0.001, B = 0.18 compared with F(1,3962) = 22.31, p < 0.001), B = 0.11
for the cultural right). For the Russians, there is also a positive relationship,
but only for the political right to organisations and it is much weaker than
that of the titular group (F(1,3890) = 7.10, p < .01, B = 0.11). This confirms hypothesis 4: supporting separatism is largely seen as an extension of
minority rights, especially for the subordinate titular groups.
To answer the more exploratory question regarding the effects of the territorialisation of the minority rights by institutionalising cultural autonomies
for the titular republics, we tested the interaction effect between support
for separatism and residence. It turns out that it is especially those titular
respondents who live outside the protective borders of their republics who
see a strong connection between separatism and minority rights: F(1,3962)
= 7.43, p < 0.01, B = 0.13 for the cultural right to schools and F(1,3890) =
17.32, p < 0.001, B = 0.23 for the political right to organisations. (Outside
the republics, the question on separatism was only asked to titular respondents.) For those living inside the republics, the association between separatism and the cultural right is insignificant, and it is much weaker between
separatism and the political right: F(1,3890) = 9.01, p < 0.01, B = 0.05.
It seems, therefore, that the territorialisation of minority rights in Russia
may have resulted in moderating the separatist claims for those who feel
protected by the borders of the republics (by the rights they can exercise
within these borders). For both Russians and titular people living on the territory of the autonomous republics, separatism does not seem such a natural extension of their normative support for minority rights; the association
between the two is either insignificant or quite weak. However, the titulars
who live outside their autonomous republics, and who feel unprotected and
vulnerable because they are not allowed to easily exercise any special rights,
seem to be more inclined to be more in support of separatism the more they
support other minority rights.
In line with previous speculation on the topic, it seems indeed that while
the territorialisation of minority rights does not protect and appease the
needs and claims of the titular groups living outside their own republics,
it has had beneficial effects for those living within the boundaries of their
cultural autonomies.47
47 Codagnone, and Filippov, n 2 above; Rakowska-Harmstone, n 12 above; Stepanov,
n 17 above.
238 Anca Minescu

Table 11.3: Relationship Between Support for Separatism and Normative
Support for Minority Rights
Support for the right to
political organisations
R2 = 0.01 (1,3962)
R2 = 0.01 F(1,3890)
Support for separatism
8.71**; 0.07 (0.02)
Two-way interactions:
support for separatism
MODELS
Support for the right

to schools
7.34**
X Ethnic groups
Titulars
22.31***; 0.11 (0.02)

0.95 ns; 0.03 (0.03)
Russians
X Residence
23.14***; 0.15 (0.03)

4.29*
38.95***; 0.18 (0.03)
7.10**; 0.11 (0.04)
4.95*
9.54**
Inside (Russians and titulars)
1.68 ns 0.02 (0.01)
9.01**; 0.05 (0.02)
Outside (titulars only)
7.43**; 0.13 (0.05)
17.32***; 0.23 (0.06)
Ethnic groups
5.78*
4.66*
Residence
0.01 ns
8.49**
Results of multivariate analysis of co-variance are reported, with the F-values and corresponding
significance levels: ***p < 0.001, **p < 0.01, and *p < 0.05, ns = non-significant difference. The
analyses of the interaction terms between Support for separatism and Ethnic groups, and Support
for separatism and Location are simple slope analyses, and results are reported for each level of
the two factors.
CONCLUSIONS AND DISCUSSION
The results of our investigation indicate that individual attitudes towards

minority rights do reflect the political stance on these issues. However, this
process is not straightforward and can be predicted by employing classic
sociological and social-psychological models.
The normative support for minority rights is conditioned to a great extent
by the relative position of groups in society, leading those who are in a subordinate position to invoke minority rights more than the dominant groups.
Our analyses reveal that the specific type of disadvantage experienced by a
group defines status relationships (the subordinate/dominant positions), and
thus influences the normative support for specific minority rights differently.
On the one hand, titular groups are mostly threatened by cultural extinction, and, as a consequence, living outside the protective boundaries of their
republics makes them more supportive of cultural rights. On the other hand,
Russians living on the titular-controlled territories of the republics feel more
vulnerable politically, and thus support political rights more strongly than
the Russians living within the larger context of the Federation.
Normative support for minority rights is also related to the importance
people place on their belonging to an ethnic/minority group, and this is especially the case for subordinate groups, such as the titular groups in Russia.

At the same time, peoples perceptions that their group is relatively disadvantaged fuel their support for minority rights, indicating the strategic use of
minority rights as a means to improve ones status in the inter-group context.
Perceptions of relative deprivation have a stimulating effect in particular
among those who are structurally at a relative disadvantage: titular groups
living outside their republics (where they lack the legal and political protection offered by the republican borders), but also, interestingly, Russians
living inside titular republics (where local laws are especially geared to the
advancement and protection of the titular groups, to the detriment of other
ethnic groups). Thus, we conclude that the impact of psychological factors
(ethnic identification and perceptions of relative deprivation) is further conditioned by the reality of the inter-group situation, namely the subordinate
or dominant position of ones group. The role the inter-group context plays
in affecting support for minority rights is a clear indication of the instrumental and calculative approach people have towards minority rights.
Considerations of group position, which (in the Russian context) are
greatly determined by the political status of territorial autonomies attributed to the titular republics, also affect the association between supporting
minority rights and separatism. The social consequence of institutionalising minority rights on a territorial (republican) basis is that titular groups
living inside their republics are not so quick to extend their support for
minority rights to separatism. However, titular groups living outside their
republics feel more vulnerable and seem to be more radical and quick to
manifest a stronger association between normative support for cultural
and political rights and supporting separatism. It seems that the autonomy
arrangements have provided those inside the republics with a solution for
the improvement of their group position.
In this study we employed theoretical insights to analyse the empirical reality of Russian-titular inter-group relationships regarding the controversial issue
of minority rights. In a systematic effort, we identified specific patterns of normative support for minority rights, as well as crucial social psychological and
sociological factors that can explain this normative support. Understanding
the social consequences of specific policies as well as their social-psychological interpretations has implications for both the theoretical refinement of
explanatory models and for the identification of the politically relevant public
opinions about minority rights. The classic sociological principle relating
structural dis-/advantage between dominant and subordinate groups to intergroup power struggles48 should be further specified according to the constitutional arrangements that make the same groups feel culturally or politically
vulnerable in one setting, but not in another. Additionally, the degree to which
individuals internalise and respond to the political arrangements that institutionalise group rights is remarkable. And it is even more remarkable that
48
Blumer, n 8 above.
240 Anca Minescu

for the same ethnic group (the titular populations or the Russians) the same
provisions can both reassure and threaten the status quo.49
Overall, one can expect that subordinate groups who can appeal to minority rights for the advancement of their status will more readily subscribe to
the discourses of multiculturalism than dominant groups who may feel
threatened by this. To activate the support of subordinate groups, appealing
to their ethnic/group identity and indicating the degree of relative deprivation experienced by the group is almost a guaranteed path to a successful
mobilisation. Furthermore, it seems that institutionalising multiculturalism
with arrangements of territorial autonomy prevents further claims to separatism among those who live protected by these laws within the designated
borders of privilege. But, in contrast, those living outside these borders are
left unprotected and vulnerable; they are the ones who would more readily
pursue the more extreme minority right option of separatism.
The current results also point to the difficulties of managing ethnic diversity, by showing how political controversies and structural group positions
affect individuals normative support for minority rights. Given the collective
nature of such rights (as opposed to the individual human rights), it seems
unsurprising that considerations of an inter-group nature affect peoples
normative beliefs. The contributions of sociology and social psychology
to the understanding of the minority rights issue consist exactly in emphasising which group- or individual-level factors can be addressed in order
to enhance more positive inter-group attitudes. However, as the present
analysis reveals, general predictions need to be specified to the context of
the particular political situation, in which minority rights become contested
in the power struggle between groups. The subordinate or dominant status
is defined by ethnicity in Russia, but more importantly it is also conditioned
by the political (territorial and administrative) entitlements associated with
a particular ethnicity. In this way, paradoxically, while in the Federation
titular groups are at a disadvantage within the Federation as a whole, within
their republics, they assume a dominant position. Equally, Russians may find
themselves struggling for their rights within the autonomous republics. In the
end, minority rights seem to be embraced at certain times by those who can
strategically use them in their inter-group power struggles.
SELECT BIBLIOGRAPHY
Barry, B, Culture and Equality: an Egalitarian Critique of Multiculturalism
(Cambridge, Polity Press, 2001)
Baubock, R, Cultural Minority Rights for Immigrants (1996) 30 International
Migration Review 203
49
Codagnone, and Filippov, n 2 above; Stepanov, n 17 above.

Berry, J and Kalin, R, Multicultural and Ethnic Attitudes in Canada: an Overview of
the 1991 National Survey (1995) 27 Canadian Journal of Behavioral Science 301
Blumer, H, Race Prejudice as a Sense of Group Position (1958) 1 Pacific Sociological
Review 3
Bobo, L and Hutchings, VL, Perceptions of Racial Group Competition: Extending
Blumers Theory of Group Position to a Multiracial Social Context (1996) 61
American Sociological Review 951
, Prejudice as Group Position: Micro-foundations of a Sociological Approach
to Racism and Race Relations (1999) 55 Journal of Social Issues 445
Brewer, M, The Psychology of Prejudice: Ingroup Love or Outgroup Hate? (1999)
55 Journal of Social Issues 429
Codagnone, C and Filippov, V, Equity, Exit and National Identity in a Multinational
Federation: the Multicultural Constitutional Patriotism Project in Russia
(2000) 26 Journal of Ethnic and Migration Studies 263
Ellemers, N, Spears, R and Doosje, B, Self and Social Identity (2002) 53 Annual
Review of Psychology 161
Etzioni, A, The Evils of Self-determination (1993) 89 Foreign Policy 2135
Evans, G and Need, A, Explaining Ethnic Polarisation over Attitudes towards Minority Rights in Eastern Europe: a Multilevel Analysis (2002) 31 Social Science
Research 653
Gilens, M, Sniderman, PM and Kuklinski, JH, Affirmative Action and the Politics
of Realignment (1998) 28 British Journal of Political Science 159
Guimond, S and Dube-Simard, L, Relative Deprivation Theory and the Quebec
Nationalist Movement: the Cognition-Emotion Distinction and the Personal-Group
Deprivation Issue (1983) 44 Journal of Personality and Social Psychology 526
Gurr, TR, Why Men Rebel (Princeton, Princeton University Press, 1970)
Hagendoorn, L, Linssen, H and Tumanov, S, Inter-group Relations in States of the
Former Soviet Union: the Perception of Russians (Hove, Psychology Press, 2001)
Hornsey, MJ and Hogg, MA, Assimilation and Diversity: an Integrative Model of
Subgroup Relations (2000) 4 Personality and Social Psychology Review 143
Horowitz, DL, Ethnic Groups in Conflict (Berkeley, University of California Press,
1985)
Kreptul, A, The Constitutional Right of Secession in Political Theory and History
(2003) 17 Journal of Libertarian Studies 39
Kymlicka, W, Multicultural Citizenship (Oxford, Clarendon Press, 1995)
, Nation-building and Minority Rights: Comparing West and East (2000) 26
Journal of Ethnic and Migration Studies 183
Lapidus, GW, Ethno Nationalism and Political Stability: the Soviet Case in R
Denber (ed), The Soviet Nationality Reader: the Disintegration in the Context
(Oxford, Westview Press, Inc, 1992)
Leach, CW, Iyer, A, and Pedersen, P, Angry Opposition to Government Redress:
when the Structurally Advantaged Perceive Themselves as Relatively Deprived
(2007) 46 (1) British Journal of Social Psychology 191204
Lukic, R, Twilight of the Federations in East Central Europe and the Soviet Union
(1992) 45 Journal of International Affairs 576
Marshall, MG, States at Risk: Ethnopolitics in the Multinational States of Eastern
Europe in TR Gurr (ed), Minorities at Risk (Washington, United States Institute
of Peace Press, 1993)
242 Anca Minescu

Massey, G, Hodson, R and Sekulic, D, Ethnic Enclaves and Intolerance: the Case
of Yugoslavia (1999) 78 Social Forces 669
McIntosh, ME, MacIver, ME, Abel, DG and Nolle, DB, Minority Rights and
Majority Rule: Ethnic Tolerance in Romania and Bulgaria (1995) 73 Social
Forces 939
Minescu, A, Hagendoorn, L and Poppe, E, Types of Identification and Intergroup Differentiation in the Russian Federation (2008) 63 Journal of Social
Issues 321
Preece, JJ, National Minority Rights vs. State Sovereignty in Europe: Changing
Norms in International Relations? (1997) 3 Nations and Nationalism 345
Rakowska-Harmstone, T, Chickens Coming Home to Roost: a Perspective on
Soviet Ethnic Relations (1992) 45 Journal of International Affairs 519
Runciman, WC, Relative Deprivation and Social Justice: a Study of Attitudes
to Social Inequality in Twentieth Century England (Berkeley, University of
California Press, 1966)
Scheepers, P, Gijsberts, M, and Coenders, M, Ethnic Exclusionism in European
Counties: Public Opposition to Civil Rights for Legal Migrants as a Response to
Perceived Ethnic Threat (2002) 18 European Sociological Review 17
Smith, G, Russia, Multiculturalism and Federal Justice (1998) 50 Europe-Asia
Studies 1393
Stepanov, V, Ethnic Tensions and Separatism in Russia (2000) 26 Journal of Ethnic
and Migration Studies 305
Tajfel, H, Social Identity and Intergroup Relations (Cambridge, Cambridge
Tishkov, V, Ethnicity, Nationalism and Conflict in and after the Soviet Union
(London, Sage, 1997)
Vanneman, RD and Pettigrew, TF, Race and Relative Deprivation in the Urban
United States (1972) 13 Race 461
Verkuyten, M, Ethnic Group Identification and Group Evaluation among Minority
and Majority Groups: Testing the Multiculturalism Hypothesis (2005) 88
Journal of Personality and Social Psychology 121
Verkuyten, M and Yildiz, AA, The Endorsement of Minority Rights: the Role of
Group Position, National Context and Ideological Beliefs (2006) 27 Political
Psychology 527
Walker, I and Pettigrew, TF, Relative Deprivation Theory: an Overview and
Conceptual Critique (1984) 23 British Journal of Social Psychology 301
Part V
Rights in a Global World
12
The Protection of Groups and
Group Rights in Europe
STEPHAN BREITENMOSER*
INTRODUCTION
he position of the individual in contemporary international law has

undergone a most remarkable development in the few last decades.
Until the proclamation of the United Nations Charter in 1945 the
main participants in international law were states and international organisations.1 Thus, individuals had no rights on the international level and no
standing before international institutions and courts. As an exception, individuals could receive diplomatic protection through their home state, but
this form of protection was and still is the prerogative of a state towards its
nationals, and not a right of the individual. Therefore, diplomatic protection2 can only be formally claimed and given by a state in its own interest,
and not by individuals or a group of individuals, in respect of an injury
suffered by one of its nationals.3
Since 1945, the individual has been acknowledged in various universal4
and regional conventions5 as a subject of international law in the sense
of an actor in the international sphere.6 In a second phase, individuals
* I would like to thank lic iur Chiara Piras, research assistant at the Faculty of Law at the
University of Basel, for her valuable help.
1 EPIL II (1995) Encyclopaedia of Public International Law 957.
2 EPIL I (1992) 1045.
3 EPIL II (1995) 957.
4 See the Charter of the United Nations (1945), the Universal Declaration of Human
Rights (1948), the UN Convention relating to the Status of Refugees (1951), the International
Covenant on Civil and Political Rights (ICCPR) (1966), the International Covenant on
Economic, Social and Cultural Rights (1966), the UN Convention on Racial Discrimination
(1966), the UN Convention on the Elimination of All Forms of Discrimination Against Women
(1981), the UN Convention on the Rights of the Child (1989).
5 K Hailbronner, Der Staat und der Einzelne als Vlkerrechtssubjekt in WG Vitzthum (ed),
Vlkerrecht (1997).
6 I Cameron, An Introduction to the European Convention on Human Rights (Uppsala,
Iustus Frlag, 1998), p 17.
246 Stephan Breitenmoser

were gradually enabled to pursue those rights before international
institutions and courts,7 and they may also, in relation to certain criminal acts, be legally responsible before national and international criminal
courts.8 During those two phases, members of ethnic, religious and
linguistic groups and minorities were protected by general prohibitions of
discrimination.9
In a third phase, the protection of human rights was broadened and
strengthened as a result of an evolving and dynamic jurisprudence by universal and regional committees and courts.10 New rights, which were also
applicable to members of groups and minorities, were recognised and, later,
positive obligations of states to provide a preventive protection for every
individual as well as for members of groups and minorities were developed.11 In 1993, after the end of the Cold War, human rights were recognised as universal and inseparable, and some fundamental rights were even
accepted as being ius cogens.12
This chapter presents an overview of the existing instruments directly or
indirectly protecting group and minority rights in Europe.
INDIVIDUAL VERSUS COLLECTIVE RIGHTS
Both human rights on the international level and constitutional rights on

the municipal level13 are primarily individual rights which give protection
to a single natural or legal person.14 In recent times, entities and groups
of individuals may also pledge a complaint before national and international courts and institutions. Within this second category two modes of
protection can be distinguished: (1) the protection of the collective rights
of a group, and (2) the protection of individuals belonging to a group.15
However, the latter mode of protection is, in fact, merely an enlargement of
traditional individual rights.
Ibid.
I Brownlie, Principles of Public International Law (5th edn, Oxford, Oxford University
Press, 1998), p 565.
9 Eg ICCPR, Art 26, EPIL I (1992) 1079.
10 Such as the European Court of Human Rights, UN Human Rights Committee, Bodies of
the American Convention on Human Rights (1969) and the African Charter of Human and
Peoples Rights (1981).
11 W Klin and J Knzli, Universeller Menschenrechtsschutz (Helbing & Lichtenhahn,
2005), p 117.
12 Ie for members of groups and minorities, important prohibitions of discrimination and
the right to self-determination.
13 Hailbronner, n 5 above, p 194.
14 See S Hobe and O Kimminich, Einfhrung in das Vlkerrecht (8th edn, Stuttgart, UTB,
2004), p 160.
15 E Riedel, Group Rights and Collective Aspects of Individual Human Rights in W Kalin
(ed), Current Problems of Human Rights Protection (CF Muller, 1994).
8
The Protection of Groups and Group Rights in Europe 247

Protection of the Group Itself
The recognition and enforcement of the collective rights of a group remains
the topic of vivid discussion in the academic community. The predominant
view in academic literature remains opposed to the idea of collective or
group rights. The basic argument lies in the fact that the historical notion
of human rights seeks to protect the individual from the state. However,
gradually, adherents of the opposite view, namely that collective or group
rights should be seen as a new and specific category of human rights, are
beginning to be more audible.16 Examples of such collective rights are, in
particular, (a) the right to self-determination17 and (b) development18 of
peoples, as well as (c) the prohibition of discrimination.19
The rights to self-determination and to development of peoples are considered part of the third generation of the collective rights of peoples (of the
South)20 and are primarily interpreted as colonial peoples right to political
independence.21 The third generation finds its normative expression in the
1981 African Charter on Human and Peoples Rights.22
(a) The rights of groups become very prominent in connection with the
principle, or right, of self-determination, which is defined as the right
of cohesive national groups to choose for themselves a form of political organisation as well as their relation to other groups. Since 1945,
developments in the United Nations have strengthened this position
and this right is generally seen as a legal principle.23
(b) The discussion in connection with peoples right to development
has been revived by the claim of inseparability of development and
human rights.24 The same problem arises in connection with the
16
See ibid p 64.

See EPIL IV (2000) 364; Hobe and Kimminich, n 14 above, p 111; D Brhl-Moser, Die
Entwicklung des Selbstbestimmungsrechts der Vlker unter besonderer Bercksichtigung seines
innerstaatlich-demokratischen Aspekts und seiner Bedeutung fr den Minderheitenschutz
(1994), p 3; S Oeter, Selbstbestimmungsrecht im Wandel, berlegungen zur Debatte um
Selbstbestimmung, Sezessionsrecht und vorzeitige Anerkennung (1992) 52 ZaRV 741.
18 See H Scharpenack, Das Recht auf Entwicklung (1996), p 98; P Slinn, The International
Law of Development: a Millenium Subject or a Relict of the Twentieth Century? in W Benedek,
H Isak and R Kicker (eds), Development and Developing International and European Law
(Frankfurt, Peter Lang, 1999).
19 EPIL I (1992) 1079.
20 The three generations or dimensions of human rights developed during the Cold War are
civil and political rights as a first dimension; economic, social and cultural rights as the second
dimension; and collective rights as a third dimension: E Riedel, Menschenrechte der dritten
Dimension (1989) EuGRZ 11.
21 M Nowak, Introduction to the International Human Rights Regime (Brill Academic
Publishers, 2003), p 23.
22 P Kunig, The Protection of Human Rights by International Law in Africa (1982) 25
German Yearbook of International Law 138.
23 Brownlie, n 8 above, p 599.
24 A Barthel, Entwicklung und Menschenrechte: das Recht aus Entwicklung als
Menschenrecht (1986), p 61.
17

right to the use of shared freshwater, which creates a new challenge
for the international community. States have to consider collective
actions to ensure the use of collective goods without any political
boundaries.25
(c) The UN Charter, which entered into force in 1945, contains a significant number of references to human rights and fundamental
freedoms for all without distinction as to race, sex, language or religion. These general provisions for the prohibition of discrimination
have provided the background for a substantial body of multilateral
conventions and practices by the organs of the United Nations.26 By
1965, at the latest, it was possible to conclude that the principle of
respect and protection of human rights had become recognised as a
legal standard.27
Protection of Individuals Belonging to a Group
After having exhausted all national court remedies according to the local
remedy rule,28 individuals belonging to a group who feel that their rights
have been violated may either apply to an independent court or to a
committee of independent experts. While such committees exist primarily on the universal level of the United Nations and its conventions, the
European,29 American30 and African states31 have created regional conventions and courts. A third possibility would be a state application to these
courts,32 a route which has, however, been remarkably underused because
of diplomatic restraint or considerateness.33
In practice, the possibility of an application procedure for individuals
before an independent international court and the right given to individuals
and organisations to challenge the Contracting Parties is the real value, and
the reason for the effectiveness, of the European Convention on Human
25 E Benvenisti, Collective Action in the Utilization of Shared Freshwater: the Challenges
of International Water Resource Law (1996) AJIL 384.
26 See n 4 above.
27 Brownlie, n 8 above, p 602.
28 See P Leach, Taking a Case to the European Court of Human Rights (2nd edn, Oxford,
Oxford University Press, 2005), p 134.
29 European Convention for the Protection of Human Rights and Fundamental Freedoms
(1950), amended by 14 Protocols (19512006). The ECtHR was established in 1998 as a court
on a permanent basis by Amendment No 11 to the ECHR.
30 American Convention on Human Rights (1969). The Inter-American Court of Human
Rights is a permanent body and an autonomous organ of the Organisation of American States.
31 African Charter on Human and Peoples Rights (1981) (so-called Banjul Charter).
32 ME Villiger, Handbuch der Europischen Menschenrechtskonvention (2nd edn, 1999),
p 118; see F Matscher, Kollektive Garantie der Grundrechte und die Staatenbeschwerde nach
der Europischen Konvention fr Menschenrechte in B-C Funk (ed), Der neue Rechtsstaat vor
neuen Herausforderungen, Festschrift fr Ludwig Adamovich (2002).
33 Leach, n 28 above, p 16.

Rights (ECHR).34 It is up to the states to secure the rights and freedoms
defined in the ECHR within their jurisdiction. This means that nationality
and place of residence are irrelevant to the right to complain to the court
regarding violations of the ECHR, reflecting the obligation in Article 1 of
the ECHR on the Contracting Parties to secure ECHR rights for everyone on their territory.35 Members of groups can (provided they meet the
application criteria) also submit their claims before the European Court of
Human Rights (ECtHR) in Strasbourg.36
INDIVIDUAL APPLICATIONS ACCORDING TO ECHR, ARTICLE 34
Article 34 of the ECHR is the main provision of that Convention concerning the admissibility criteria for applications addressed to the ECtHR.
It states that the Court may receive applications from any person, nongovernmental organization or group of individuals.37 For a legal person
(eg an association or trade organisation) to act for its members without
claiming a violation of its own rights (but arguing that the collective rights
of the members have been violated), it is essential that the organisation can
prove its entitlement to represent its members as well as the identity of the
affected members.38 Otherwise, the application will be seen as anonymous
and will be declared inadmissible on this ground alone. After all, under
such circumstances the grouping of individual applications is concerned.39
Different Types of Applicants
In accordance with ECHR, Article 34, an applicant bringing a claim before
the ECtHR must claim to be the victim of a violation of one or more
Convention rights. The Court will only consider the particular circumstances
of each case and will not permit abstract challenges (actio popularis),40
nor will the Court admit hypothetical breaches.41 The test applied by the
34 Convention for the Protection of Human Rights and Fundamental Freedoms, CETS
No 005.
36 Ibid p 5.
37 See A Haefliger and F Schrmann (eds), Die Europische Menschenrechtskonvention und
die Schweiz (2nd edn, 1999), p 388; T Buergenthal, International Human Rights in a Nutshell
(3rd edn, West Publishing Co, 2002), p 133.
38 See A Peters, Einfhrung in die Europische Menschenrechtskonvention (Munich, CH
Beck, 2003), p 232; P Van Dijk and GJH Van Hoof, Theory and Practice of the European
Convention on Human Rights (The Hague, Kluwer Law, 1998), p 46.
39 C Grabenwarter, Europische Menschenrechtskonvention (2005), p 68.
40 Lindsay and others v United Kingdom, 17 January 1997, 31699/94, (1997) 23 EHRR
CD199 (the application, claiming to represent more than 1 million people in Northern Ireland,
was declared inadmissible under the provisions of the ECHR).
41 Buckley v United Kingdom, 25 September 1996, 20348/92, EHRR 1996-IV, 1271.

ECtHR is that the applicant must show that he or she has been personally
or directly affected by the alleged violation of the ECHR.42
Yet, Article 34 may permit an applicant to complain that the law itself
violates his or her rights as provided for by the ECHR, even if there has
been no specific measure implemented against them. Thus, potential victims
of Convention violations must show the Court that there is a real personal
risk of being directly affected by the violation. Those considered to be at
risk fall into various categories,43 including those at risk of criminal prosecution.44 An individual who is not directly affected by a particular measure
or omission may nevertheless have been indirectly affected by the violation
of the Convention rights of another person, eg family members of a person
subject to a deportation decision.45
Examples of Group-related Applications to the European Court of
Human Rights
According to ECHR, Article 34, individuals, groups of individuals, nongovernmental organisations (NGOs), companies, shareholders, trusts,
professional associations, trade unions, political parties and religious
organisations may all submit applications to the ECtHR.46
Groups of Individuals
In Guerra and others v Italy,47 40 inhabitants of an Italian town brought
an application under ECHR, Articles 2, 8 and 10 complaining of the risks
of pollution or a major accident at a chemical factory a kilometre away. In
the case of Balmer-Schafroth v Switzerland,48 10 applicants living in the
vicinity of a nuclear power plant at Muhleberg challenged the granting of
an operating licence, invoking ECHR, Articles 2, 6(1), 8 and 13.49
Companies and Shareholders
In Sunday Times v United Kingdom,50 the publisher, editor and a group of
journalists from the Sunday Times invoked ECHR, Article 10 in challenging
42
Leach, n 28 above, p 62.

Dudgeon v United Kingdom, 24 February 1983, 7525/76, A/59, and Norris v Ireland,
26 October 1988, 10581/83, A/142, and Modison v Cyprus, 22 April 1993, 15070/89, A/259,
concerned domestic legislation criminalising homosexual acts.
45 Ibid p 129.
46 Ibid p 115.
47 Guerra and others v Italy, 19 February 1998, 14967/89, EHRR 1998-I, 210.
48 Balmer-Schafroth v Switzerland, 26 August 1997, 22110/93, EHRR 1997-IV, 1346.
49 See also Hatton and others v United Kingdom, 7 August 2003, 36022/97, EHRR 2003VIII, 189 and Fadeyeva v Russia, 9 June 2005, 55723/00.
50 Sunday Times v United Kingdom, 26 November 1991, 13166/87, A/217.
43

the obtaining of an injunction by the Attorney General which prevented
the publication of articles concerning the drug Thalidomine, which was the
subject of legal proceedings.
Trade Unions
In Swedish Engine Drivers Union v Sweden,51 the applicant union challenged the system of collective bargaining which could only be carried out
with the State Employees Union, invoking ECHR, Articles 11, 13 and 14.
Religious Bodies
In Canea Catholic Church v Greece,52 the church challenged a Greek civil
courts refusal to acknowledge that it has legal personality, resulting in it
being unable to take legal proceedings, invoking ECHR, Articles 6(1), 9, 14
and Article 1 of Protocol 1.
Non-governmental Organisations
In Rai, Allmond and Negotiate Now v United Kingdom,53 the applicant organisation, which sought to promote peace in Northern Ireland,
challenged the refusal to permit a rally in Trafalgar Square, invoking
ECHR, Articles 9, 10, 11, 13 and 18.
Political Parties
In Freedom and Democracy Party (zdep) v Turkey,54 the applicant political party complained about its dissolution by the Constitutional Court and
the banning of its leaders from holding similar office in any other political
party, invoking ECHR, Articles 9, 10, 11 and 14.
Minority Rights
The protection of minorities is a further historical antecedent of international human rights protection, which is also closely related to the
protection power of national states. Ethnic, linguistic and religious minorities developed as new borders were drawn between states in the aftermaths
of war.55
51
Swedish Engine Drivers Union v Sweden, 25 April 1996, 5614/72, EHRR 1996-II, 637.
Canea Catholic Church v Greece, 16 December 1997, 25528/94, Reports 1997-VIII,
2843.
53 Rai, Allmond and Negotiate Now v United Kingdom, 6 April 1995, 25522/94, (1995)
19 EHRR CD 93.
54 Freedom and Democracy Party v Turkey, 8 December 1999, 23885/94, 1999-VIII, 293.
55 Nowak, n 21 above, p 18.
52

Protection of Minority Rights and the Development of Such Protection
Efforts to furnish an internationally accepted guarantee of the protection
of minority rights are made on both a universal and regional level, especially in Europe, and such efforts began even before 1945. The League
of Nations politically motivated system of protection of minority rights
after the First World War was the first phase in the attempt to establish a
universal protection of minority rights: The victorious forces of that war
attempted to control tensions between minorities, which were provoked by
the new borders and states, by signing peace treaties under which the newly
created states agreed to grant certain minimum rights to their national
minorities.56
In a second phase, the protection of minorities developed within the
measures taken for the protection of human rights after the Second World
War. However, even the general prohibition of discrimination in Article 27
of the International Covenant on Civil and Political Rights was based on an
individual approach which negated the existence of group rights.57
In a third phase, minority rights were recognised as non-binding within
the measures adopted by the United Nations for the protection of groups.
This was because the majority of states still feared that the acceptance of
collective minority rights would be the first step towards the acceptance of a
general right to self-determination,58 leading inevitably to further ambitions
of autonomy and secession.59
Although nowadays the protection of minorities by bilateral and multilateral treaties is generally recognised,60 there is no universally valid definition of minority, either on the international or on the European level.61
Nevertheless, there is a common understanding of the objective and subjective elements of affiliation to a minority, which were presented to the
United Nations for the first time by Francesco Capotorti in 1978.62 The
Parliamentary Assembly of the Council of Europe specified its own definition
56 See P Thornberry and M Estebenez (eds), Minority Rights in Europe (Strasbourg,

Council of Europe Publishing, 2004).
57 See S Breitenmoser, B Riemer and C Seitz (eds), Praxis des EuroparechtsGrundrechtsschutz
(Schulthess, 2006), p 422 et seq.
58 See J Castellino, International Law and Self-Determination (The Hague, Kluwer Law
International, 2000), p 75.
59 See EPIL III (1997) 410.
60 A Bloed and P Van Dijk (eds), Protection of Minority Rights through Bilateral Treaties
(The Hague, Kluwer Law International, 2000); Thornberry and Estebenez, n 56 above; T
Malloy, National Minority Rights in Europe (Oxford, Oxford University Press, 2005).
61 See JA Frowein and Roland Bank, The Effect of Member States Declarations Defining
National Minorities upon Signature or Ratification of the Council of Europes Framework
Convention (1999) ZaRV 649.
62 F Capotorti, tude des droits des personnes appartenant aux minorits ethniques,
religieuses et linguistiques (Doc E /CN. 4/Sub. 2/1979/384, Publications des Nations Unies,
Genve, 1979).

of the characteristics of minorities in its recommendation 1201 of 199363
on an additional protocol to the ECHR on the protection of the rights of
national minorities.64
The basic element of any definition of minorities is constituted by the
distinctive features of minorities when compared to the majority of the
inhabitants of a given state. A minority is a group which is numerically inferior to the rest of the population of a state and in a non-dominant position,
whose members possess ethnic, religious or linguistic characteristics which
differ from those of the rest of the population and who, if only implicitly,
maintain a sense of solidarity directed towards preserving their culture,
traditions, religion or language.65
In the absence of legal remedies and enforceability of the prevailing
definition of minorities, a great number of states (even in Europe) deny the
existence of such minorities on their national territories. The fear is that if
they were to achieve a stronger position, those minorities would then rely
on their right of self-determination66 and therefore on an advanced right
to autonomy and secession, which would question the effective national
borders.
The ECHR, considered the most important instrument of the Council of
Europe, provides only indirectly for the protection of minorities67 under
Article 14,68 freedom from discrimination,69 and Protocol No 12 to the
ECHR.70 Initially, the intention was to include the protection of minorities
63 Parliamentary Assembly of the Council of Europe, Recommendation 1201 (1993) (1) on
an additional protocol on the rights of national minorities to the European Convention on
Human Rights.
64 For the purposes of this Convention, the expression national minority refers to a
group of persons in a State who (a) reside on the territory of that State and are citizens thereof,
(b) maintain longstanding, firm and lasting ties with that State, (c) display distinctive ethnic,
cultural, religious or linguistic characteristics, (d) are sufficiently representative, although
smaller in number than the rest of the population of that State or of a region of that State, (e)
are motivated by a concern to preserve together that which constitutes their common identity,
including their culture, their traditions, their religion or their language.
65 EPIL III (1997) 411.
66 EPIL IV (2000) 364.
67 C Hillgruber, Minderheitenschutz im Rahmen der Europischen Menschenrechtskonvention-Stand und Entwicklung in D Blumenwitz and G Gornig (eds), Minderheiten- und
Volksgruppenrechte in Theorie und Praxis (Kln, Wiss U Pol, 1993); R Hofmann, Minority
Rights: Individual or Group Rights? A Comparative View on European Legal Systems (1997)
40 German Yearbook of International Law 356.
68 ECHR, Art 14: The enjoyment of the rights and freedoms set forth in this Convention
shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority,
property, birth or other status.
69 J Fawcett, The International Protection of Minorities in Minority Rights, Group Report
No 41 (1979); I Diaconu, Minorities from Non-Discrimination to Identity (Bucuresti, Lumina
Lex, 2004).
70 Art 1 of Protocol No 12 to the ECHR: (1) The enjoyment of any right set forth by law
shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority,

in a separate Protocol. In 1993, a great number of Member States rejected
this approach, fearing that a submission to the ECtHR would narrow their
sovereign latitude of judgement. Nevertheless, recommendation 1201 of
the Parliamentary Assembly in support of an additional protocol, in particular Articles 10 and 11 thereof, has been very important. In addition,
cooperation between the European Council and the European Union is
essential since the member states of both organisations have to fulfil the
criteria of the Copenhagen Summit which also provide for the protection
of minorities.71
For many years now, proposals have been made for the formation of
a court for the protection of minority rights.72 Considering the subsidiary character of the ECHR, the protection of group rights through such
a court would require that the court acts as a court or tribunal of first
instance, until the national legislator implements the development(s) of its
jurisprudence.73
Protection of Minorities by the Organisation for Security and
Co-operation in Europe (OSCE)
The protection of human and minority rights through the OSCE74 is known
as the human dimension. It consists of a number of tools which monitor
the implementation of commitments made by participating states in the
field of human rights and democracy.75
That protection is composed of two instruments: the Vienna and
Moscow Mechanisms, the latter partly constituting a further elaboration
of the Vienna Mechanism. The Vienna Mechanism allows participating
states, through an established set of procedures, to raise questions relating
to the human dimension situation in other OSCE states. If the information provided appears insufficient, there is the possibility to inform other
OSCE participating states, as well as bilateral negotiations.76 The Moscow
property, birth or other status. (2) No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.
71
Conclusions of the Copenhagen Summit of 22 June 1993, SN 180/1/93, 13.

A Verstichel, Recent Developments in the UN Human Rights Committees Approach
to Minorities, with a Focus on Effective Participation (2005) 12 International Journal on
Minority and Group Rights 25.
73 S Breitenmoser and D Richter, Die Verwirklichung der KSZE-Grundstze zum Schutze
nationaler Minderheiten durch Organleihe bei der EMRK (1991) EuGRZ 141.
74 Before the Budapest Conference in 1994, the abbreviation was CSCE (Conference on
Security and Cooperation in Europe).
75 See J Binder, The Human Dimension of the OSCE: From Recommendation to
Implementation (Vienna, Verlag, 2001); A Bloed, The OSCE and the Issues of National
Minorities in E Phillip and A Rosas (eds), Universal Minority Rights (Turku, Abo Akademi,
1995).
76 M Harris, Human Rights Monitoring and the CSCE: a Perspective from Budapest (HM,
1995), p 18.
72

Mechanism builds on this and provides for the additional possibility for
participating states to establish ad hoc missions of independent experts to
assist in the resolution of a specific human dimension problem, either on
their own territory or in other OSCE participating states.
The Office of the OSCE High Commissioner on National Minorities was
established in 1992 to identify and seek early resolution of ethnic tensions
that might endanger peace, stability or friendly relations between OSCE
participating states.77 The High Commissioners task is to provide for an
early warning and, if appropriate, an early action at the earliest possible
stage with regard to tensions involving national minority issues, which in
the judgement of the High Commissioner have the potential to develop into
a conflict within the OSCE area.78
PROTECTION OF GROUPS BY THE COUNCIL OF EUROPE
Notwithstanding the above-mentioned limitation concerning the protection

of groups in the procedure before the ECtHR, the ECHR itself contains a
number of rights that are vital for members of different groups in order to
preserve and protect their affiliation to these groups.
Protection of Group Members in the ECHR
ECHR, Article 14 (Prohibition of Discrimination)
The general principle of equality and non-discrimination is a fundamental
element of international human rights law. Within the Convention system,
the relevant provision in this respect is ECHR, Article 14. It prohibits any
discrimination on any ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin, association with a
national minority, property, birth or other status. However, the protection
provided by Article 14 with regard to equality and non-discrimination is
limited in comparison with the corresponding provisions of other international instruments.79 The principal reason is that ECHR, Article 14, unlike
similar provisions in other instruments, does not contain an independent
prohibition of discrimination. It prohibits discrimination only with regard
to the enjoyment of the rights and freedoms set forth in the Convention.80
77 A Rnquist, The Functions of the OSCE High Commissionar on National Minorities

with Special Regard to Conflict Prevention in E Klein (ed), The Institution of a Commissioner
for Human Rights and Minorities and the Prevention of Human Rights Violations (1995).
78 Breitenmoser, Riemer and Seitz, n 57 above, p 390.
79 Eg Universal Declaration of Human Rights, Art 7 or ICCPR, Art 26.
80 Council of Europe, Explanatory Report on Protocol 12 to the Convention for the
Protection of Human Rights and Fundamental Freedoms (ETS No 177), p 1.

The prohibition in Article 14 is clearly an accessory to other, substantive
guarantees in the ECHR. Because it complements the substantive provisions
of the Convention and Protocols, it enjoys a status of an auxiliary provision
and has also been seen as a parasitic provision.81
ECHR, Article 14 safeguards individuals and groups of individuals,
placed in similar situations, from discrimination in the enjoyment of the
rights and freedoms set forth in other provisions of the Convention. Thus,
Article 14 is very frequently invoked by applicants and the court very often
deals with allegations under this article.82
Under the principle of equality, equal situations must be treated equally
and unequal situations differently. A failure to do so would amount to
discrimination. Therefore, discrimination is an act that makes distinctions or introduces limitations of a discriminatory character where the
criteria employed have no reasonable and adequate relationship with the
qualification used. In other words, discrimination may be established if
the differential treatment has no objective and reasonable justification or
if proportionality between the aim sought and the means employed is lacking.83 Not every distinction has to be regarded as discriminatory, but every
limitation needs a legitimate objective and reasonable justification.84
Discrimination on the Basis of Language
In the Belgian Linguistic case,85 the ECtHR found a breach of ECHR,
Article 8 in combination with violations of Article 14 and Protocol No 1,
Article 2. The applicants, French-speaking inhabitants of the surroundings of Brussels, submitted six applications, both on their own behalf and
on behalf of their under-aged children, against the Kingdom of Belgium.
The applicants argued that provisions of the Belgian linguistic legislation
relating to education violated the requirements of the Convention and its
Protocol No 1. They wanted their children to be educated in French. The
Brussels regional area belongs to the part of Belgium considered by law as
Dutch-speaking. They complained that the Belgian state did not provide
or subsidise French-language education in the municipalities where the
applicants lived and did not allow the applicants children to attend the
French classes which existed in certain places. The ECtHR held that only
one provision of the Act of 1963, concerning access to the French-language
schools existing in the six communes in the regional area of Brussels, did
81 L Wildhaber, Protection against Discrimination under the European Convention on
Human Rights: a Second-Class Guarantee? (Riga, Graduate School of Law, 2001).
82 M Tsatsa-Nikolovska, Non-discrimination: a Human Right: Seminar Marking the Entry
into Force of Protocol No 12 to the European Convention on Human Rights (2005), p 26.
83 Ibid p 29.
84 Grabenwarter, n 39 above, p 431.
85 Belgian Linguistic case, 23 July 1968, 1474/62; 1677/62; 1691/62; 1769/63; 1994/63;
2126/64, A/6.

not comply with the requirements of ECHR, Article 14 read in conjunction
with the first sentence of Protocol No 1, Article 2. It reserved, for the
applicants concerned, the right, should the occasion arise, to apply for just
satisfaction in regard to this particular point.
Discrimination on the Ground of Sex86
In Petrovic v Austria,87 the applicant, an Austrian national, was denied
a parental leave allowance to look after his child. The applicant brought
a claim of discrimination under ECHR, Article 8, as well as Article 14 in
conjunction with Article 8. The ECtHR held that there was no violation
of Article 14 in conjunction with Article 8. A concurring opinion argued
that equality of treatment between men and women under the ECHR did
not require that they be treated absolutely alike under tax and economic
provisions; rights such as parental leave were indisputably inspired by the
biological and psychological bond between mother and child, especially in
the period following birth.
ECHR, Article 8 (Right to Respect for Private and Family Life)
ECHR, Article 8 provides a right to respect for a persons private and family life, his home and his correspondence, subject to certain restrictions
that are in accordance with the law and necessary in a democratic society.
This article clearly provides a right to be free of unlawful searches. Since a
definition is lacking, the rights laid down in this provision cannot be clearly
distinguished from each other.
Such circumstances were taken into account by the doctrine and jurisprudence in the areas of family and marriage law, where a distinction between
the terms has often been dropped. Instead, the composite term of private
and family life has been adopted.88
There is no exhaustive classification and containment of the four protected rights that permit a dynamic case law of the ECtHR. Consequently,
it leads to an expansion of the protected rights in ECHR, Article 8(1).
Article 8 is vital for members of groups to protect their affiliation to the
group and to respect their distinctions.
Private Life in Connection with Homosexuality
In Dudgeon v United Kingdom,89 the applicant was a shipping clerk and gay
activist living in Belfast, Northern Ireland, where he was interrogated by the
Royal Ulster Constabulary about his sexual activities. The ECtHR agreed with
86
87
88
89
EPIL IV (2000) 390.

Petrovic v Austria, 27 March 1998, 20458/92, EHRR 1998-II, 579.
Breitenmoser, Riemer and Seitz, n 57 above, p 49.
Dudgeon v United Kingdom, 22 October 1981, 7525/76, A /45.

the Commission that the criminalisation in Northern Ireland of homosexual
acts between consenting adults was a violation of ECHR, Article 8.
Adoption by Homosexuals
France,90
the applicant, a French national, alleged a violation by

In Frett v
France of Article 8 in conjunction with Articles 14 and 6. The Paris Social
Services, Child Welfare and Health Department opened a social inquiry into
the applicants request for approval to adopt a child. During the interview
with a psychologist from the Department, the applicant revealed that
he was a homosexual. The Paris Social Services Department rejected his
request for authorisation to adopt indicating that, among other aspects, the
applicants choice of lifestyle did not seem to be one that would provide a
child a suitable home.
The ECtHR held that the decision to reject the applicants application for
authorisation pursued a legitimate aim, namely to protect the health and
rights of children who could be involved in an adoption procedure. Taking
into account the broad margin of discretion to be left to states and the need
to protect childrens best interests, the Court concluded that the refusal
to authorise adoption did not infringe the principle of proportionality.91
Private Life in Connection with Transsexuality
In Christine Goodwin v United Kingdom,92 the applicant, a post-operative
male to female transsexual, claimed that she faced sexual harassment at
work during and following her gender re-assignment. She also alleged that
the fact that she kept the same national insurance number meant that her
employer had been able to discover that she previously worked for them
under another name and gender, with resulting embarrassment and humiliation. The ECtHR found a violation of ECHR, Article 8 (right to respect
for private and family life); a violation of Article 12 (right to marry and
to found a family); and did not find a violation of Article 13 (right to an
effective remedy). It found that no separate issue had arisen under article
14 (prohibition of discrimination).93
ECHR, Article 9 (Freedom of Thought, Conscience and Religion)
According to ECHR, Article 9, everyone has the right to freedom of
thought, conscience and religion. This right includes freedom to change
90
Frett v France, 26 February 2002, 36515/97, Reports 2002-I, 345.

92 Christine Goodwin v United Kingdom, 11 July 2002, 28957/95, EHRR 2002-VI, 1.
93 See also Cossey v United Kingdom, 27 September 1990, 10843/84, A/184, and Rees v
United Kingdom, 17 October 1986, 9532/81, A/106.
91

ones religion or belief and a freedom to manifest ones religion or belief in
worship, teaching, practice and observance, either alone or in a community
with others, in public or privately. Freedom to manifest ones religion or
beliefs shall be subject only to such limitations as are prescribed by law and
are necessary in a democratic society in the interest of public safety, for the
protection of public order, health or morals, or for the protection of the
rights and freedoms of others. Freedom of thought, conscience and religion
is one of the foundations of a democratic society within the meaning of the
Convention. It is, in its religious dimension, one of the most vital elements
that make up the identity of believers and their conception of life, but it is
also a precious asset for atheists, agnostics, sceptics and the unconcerned.94
That freedom entails, inter alia, freedom to hold or not to hold religious
beliefs and to practise or not to practise a religion.95
In Chaare Shalom ve Tsedek v France,96 the ECtHR found no violation
of ECHR, Articles 9 or 14 (the two provisions were examined together).
The case concerns the situation of a minority within a minority. The applicant association was an Orthodox Jewish liturgical association wishing to
secure ritual slaughter according to the standards of its particular conviction, standards not satisfied (in their view) by the ritual slaughter performed
by mainstream Jewish organisations in France under the umbrella of the
Jewish Consistorial Association of Paris (ACIP). The applicant association
argued that the fact that the French state would not grant them an authorisation for a ritual slaughter violated both Articles 9 and 14 since such
authorisation had been granted to the ACIP. The ECHR does not guarantee
as such the right of minorities to be recognised. However, if recognition
and privileges have been granted to one religious group, church, conviction
or other minority institution, this should be done on a non-discriminatory
basis. The ECtHR confirmed that ritual slaughter comes within the ambit
of the right to religion and it pronounced that by establishing an exception
to the principle that animals must be stunned before slaughter, French law
gave practical effect to a positive undertaking on the States part intended
to ensure effective respect for freedom of religion. The Court did not find
an interference with Article 9 (by 12 votes to 5).
ECHR, Article 11 (Freedom of Assembly and Association)
ECHR, Article 11 protects the right to form or join a political party or
another group, and the right to belong to a trade union. This includes the
right to protest peacefully by holding meetings and demonstrations. It also
94 Breitenmoser, Riemer and Seitz, n 57 above, p 76; B Kaufmann, Das Problem der
Glaubens- und berzeugungsfreiheit im Vlkerrecht (Dissertation, Zurich, Schulthess, 1989),
p 250.
95 Buscarini and others v San Marino, 18 February 1999, 24645/94, EHRR 1999-I, 605.
96 Chaare Shalom ve Tsedek v France, 27 June 2000, 27417/95, EHRR 2000-VII, 231.

means that the police may have to act to protect people holding a meeting
or demonstration from anyone trying to stop it.97 The right to join a trade
union excludes police officers, soldiers and some other groups who work
for the government. Article 11 also guarantees the right to refuse to join a
union.
Article 11 contains one of the most important rights in connection with
the protection of groups and group rights. In fact, the ECtHR has had
many applications claiming a violation of Article 11 in connection with the
prohibition of political parties in Turkey.98 The right to form parties and
groups is one of the fundamentals of every group activity. The protection
of this right is vital for their existence.
In the joint cases of Sorensen and Rasmussen v Denmark,99 two employees were required to become members of a specified trade union as a
condition for their employment with their respective employers. These
requirements were set out in their terms of employment and duly accepted
by both. They subsequently sought to challenge this practice, referred
to as closed-shop agreements, where typically an employer undertook
to employ only members of a specified trade union with which they had
a collective agreement. The ECtHR qualified this as an unlawful restriction of their rights to individual freedom of association under ECHR,
Article 11.
ECHR, Protocol No 12
Protocol No 12 to the ECHR100 will bring considerable improvements
with regard to the protection of human rights (adopted by the Committee
of Ministers in June 2000 and entered into force on 1 April 2005). This
Protocol contains a general and free-standing prohibition of discrimination. Unlike ECHR, Article 14, Protocol No 12 is not accessory to other
substantive guarantees in the Convention. It contains an umbrella guarantee, which applies throughout the law and all areas of public activity. The
general prohibition of discrimination provides a flexible framework which
leaves room for national courts and the ECtHR to apply the basic nondiscrimination principle in specific contexts. Thus, Protocol No 12 usefully
complements and informs the application of the national legislation.101 Far
97

United Communist Party of Turkey and others v Turkey, 30 January 1998, 19392/92,
EHRR 1998-I, 1.
99 Sorensen and Rasmussen v Denmark, 11 January 2006, 52562/99 and 52620/99.
100 Protocol No 12 to the Convention for the Protection of Human Rights and Fundamental
Freedoms, CETS No 177.
101 P-H Imber, Foreword in M Tsatsa-Nikolovska, Non-discrimination: a Human Right:
Seminar Marking the Entry into Force of Protocol No 12 to the European Convention on
Human Rights (2005).
98

from being revolutionary, Protocol No 12 simply fills an important gap in
the Conventions collective guarantee.102
As an additional Protocol, it does not amend or abrogate Article 14 of
the Convention, which will therefore continue to be applied, including to
states that are parties to the Protocol. Consequently, there is an overlap
between the two provisions. In accordance with ECHR, Article 32, any further question of interpretation concerning the precise relationship between
those provisions falls within the jurisdiction of the ECtHR.103
Protection of Groups in the European Social Charter
The European Social Charter (ESC)104 (an agreement for the harmonisation
of social rights and the promotion of the expansion of national social and
economic human rights) belongs to the conventions realised by the Council
of Europe. The rights guaranteed by the Charter concern all individuals
in their daily life. Even though individuals are not allowed to invoke the
rights protected by the ESC, the signification of the Charter should not be
underestimated, since the political and moral reputation of a state can be
seriously damaged by failure to comply with it. As a guide for the interpretation of national and international jurisprudence, the Charter is highly
valued.
Instead of having a juridical system of enforcement, each year the states
parties submit a report indicating how they implement the ESC in law
and practice. Each report concerns some of the accepted provisions of the
Charter. The European Committee of Social Rights (ECSR) examines the
reports and decides whether or not the situations in the countries concerned
are in conformity with the Charter. Its decisions, known as conclusions,
are published every year.
If a state takes no action on an ECSR decision to the effect that it does
not comply with the Charter, the Committee of Ministers addresses a recommendation to that state, asking it to change the situation in law or in
practice. The Committee of Ministers work is prepared by a governmental
committee comprising representatives of the governments of the states,
parties to the ESC, assisted by observers representing European employers
organisations and trade unions.105
The collective complaint procedure established by the Protocol of 1995,
which came into force in 1998, provides the opportunity for complaints
102
Ibid.
104 European Social Charter, ETS No 035, adopted on 18 October 1961 and revised in
1996. Following its revision, the 1996 revised European Social Charter, which came into force
in 1999, is gradually replacing the initial 1961 Treaty.
105 European Trade Union Confederation (ETUC), the Union of Industrial and Employers
Confederations of Europe (UNICE) and the International Organisation of Employers (IOE).
103

of violations of the Charter to be lodged with the ECSR by employers
organisations and trade unions in the country concerned, as well as NGOs
with participative status within the Council of Europe.
The Contracting Parties recognise the right of those organisations to
lodge a complaint alleging unsatisfactory application of the ESC by a
Contracting Party. The designation as a collective complaint expresses the
fact that no individual can be an applicant, but only the above-mentioned
organisations.106
The notion collective refers here to the object of the complaint, which
is not so clear in the wording of the Protocol. The intention of the authors
of the Protocol was to make sure that the subject of the complaint would
never be any individual case. The possibilities provided by the collective
complaint procedure are provided in addition to those of the traditional
report system.107
European Charter for Regional or Minority Languages
The European Charter for Regional or Minority Languages108 was badly
received by the states concerned and, thus, entered into force as late as
1998. Its aim is to protect linguistic diversity as an essential element of the
European cultural heritage based on a set of state obligations. Its international monitoring system is limited to a simple reporting procedure before
the Committee of Ministers, assisted by a special Committee of Experts.109
In Article 1 of that Charter, regional or minority languages are defined
as languages that are traditionally used within a given territory of a State
by nationals of that State who form a group numerically smaller than the
rest of the States population; and are different from the official language(s)
of that State.
European Framework Convention for the Protection of National
Minorities
The European Framework Convention for the Protection of National
Minorities110 of 1995 is the first international agreement dedicated to a general
and global protection of members of national minorities. It was established
to find a compromise between states adhering to a traditional protection of
minorities, and obliging them to take specific positive measures to protect
106 Breitenmoser, Riemer and Seitz, n 57 above, p 150 et seq; Buergenthal, n 37 above,
p 181.
107 K Grillberger, Die Kollektivbeschwerde nach der Europischen Sozialcharta in
W Geppert, C Klein and R Leutner (eds), Sozialpolitik ist Gesellschaftspolitik (Vienna,
MANZsche, 2001).
108 European Charter for Regional or Minority Languages, ETS No 148.
109 Nowak, n 21 above, p 181.
110 Framework Convention for the Protection of National Minorities, ETS No 157.

their minorities. The state obligations and the monitoring mechanism of
this Framework Convention are rather weak. First, it is only a framework
agreement, whose provisions are quite vaguenot even the term national
minorities is defined. Secondly, there may be rights for minorities set out in
the Convention; however, state obligations to protect minorities against the
majority through positive measures are practically non-existent. Thirdly, the
monitoring system does not draw on the judicial legal remedies of the ECHR
but on the reporting system of the ESC, which is weak by comparison and
has the Committee of Ministers acting as the final political decision-making
body. Despite these restrictions, the Advisory Committee has so far tried to
take an independent and critical position on various state reports and has
actually succeeded in making the system modestly efficient. Another positive
sign is the fact that most European states, including non-member states of the
Council of Europe, have ratified the Framework Convention.111
PROTECTION OF GROUPS BY THE EUROPEAN UNION
Prohibition of Discrimination in the Law of the European Union

Within the European Union, the European Council has issued several
Directives to define Articles 12 and 13 of the EC Treaty. The Directives
constitute a significant body of measures that ensure equal treatment and
the prohibition of discrimination in the European Union:
implementation of the principle of equal treatment between persons
irrespective of racial or ethnic origin;112
establishment of a general framework for equal treatment in employment and occupation;113
amendment to the Council Directive114 on equal treatment for men
and women in employment and vocational training;115
Council Decision116 establishing a Community action programme to
fight against discrimination (2001 to 2006).
European Charter of Fundamental Rights
The European Charter of Fundamental Rights117 was solemnly proclaimed
by the European Parliament, the Council of the European Union and the
European Commission in December 2000 in Nice.
111
112
113
114
115
116
117
Nowak, n 21 above, p 181.

Council Directive 2000/43/EC, [2000] OJ L180/22.
Council Directive 2000/78/EC, [2000] OJ L303/16.
Council Directive 76/207/EEC, [1976] OJ L39/40.
Parliament and Council Directive 2002/73/EC, [2002] OJ L269/15.
Council Decision of 27 November 2000, [2000] OJ L303/23.
European Charter of Fundamental Rights 2000/C 364/01, [2000] OJ C364/1.

The Charter lays out the fundamental rights of citizens of the European
Union. For the citizen, the Charter points out in a visible way the status of
human rights built by European jurisprudence. The Preamble to the Charter
reflects the ideals and principles which are the common heritage of the
European Union, as well as human dignity, freedom, equality and solidarity, the principles of democracy and the rule of law as fundamentals for the
peoples of Europe to build and share a peaceful future.
The Charter is the latest catalogue of measures concerning human rights
and freedoms in Europe. It contains human, economic and social rights of
the EU citizen as well as of all other people living on EU territory. However,
the Charter does not provide any legal remedy in case of a breach of the
rights contained therein. The citizen can only use the action of nullity given
by Article 230(4) of the EC Treaty.118
With regard to group rights, the following provisions are relevant:
118
Article
Article
Article
Article
Article
Article
Article
Article
7 (respect for private and family life);

10 (freedom of thought, conscience and religion);119
12 (freedom of assembly and of association);120
20 (equality before the law);
21 (non-discrimination);121
22 (cultural, religious and linguistic diversity);122
25 (the rights of the elderly);
26 (integration of persons with disabilities);

Explanations relating to the Charter of Fundamental Rights of the European Union,
Convent 49, 11 October 2000, p 12: The right guaranteed in paragraph 1 corresponds to
the right guaranteed in Art 9 of the ECHR and, in accordance with Art 52 para 3 of the
Charter, has the same meaning and scope. Limitations must therefore respect Art 9 para 2 of
the Convention, which reads as follows: Freedom to manifest ones religion or beliefs shall be
subject only to such limitations as are prescribed by law and are necessary in a democratic
society in the interests of public safety, for the protection of public order, health or morals, or
for the protection of the rights and freedoms of others.
120 Ibid p 14: The meaning of the provisions of para 1 is the same as that of the ECHR,
but their scope is wider since they apply at all levels including the European level. In accordance with Art 52 para 3 of the Charter, limitations on that right may not exceed those
considered legitimate by virtue of Art 11 para 2 of the ECHR. This right is also based
on article 11 of the Community Charter of the Fundamental Social Rights of Workers.
Para 2 of this article corresponds to Art 191 of the Treaty establishing the European
Community.
121 Ibid p 22: Para 1 draws on Art 13 of the EC Treaty, Art 14 of the ECHR and Art 11 of
the Convention on Human Rights and Biomedicine as regards genetic heritage. Insofar as this
corresponds to Art 14 of the ECHR, it applies in compliance with it. Para 2 corresponds to
Art 12 of the EC Treaty and must be applied in compliance with the Treaty.
122 Ibid p 23: This article is based on Art 6 of the Treaty on European Union and on Art
151 paras 1 and 4 of the EC Treaty concerning culture. It is also inspired by the declaration No
11 to the Final Act of the Amsterdam Treaty on the status of churches and non-confessional
organisations.
119

Article 27 (workers right to information and consultation within the
undertaking);
Article 28 (right of collective bargaining and action);123
Article 38 (consumer protection).
Protection of Minorities in the European Union
In the context of the European Union, the competence for the protection
of minority rights lies with the Member States. Nevertheless, the European
Parliament has adopted measures which call upon the Member States to
facilitate regional languages and cultures. A European Bureau for Lesserused Languages was also created, in Dublin, under a Parliament resolution.
In its external relations, the European Union has for many years pursued
the protection of minority rights as human rights. New association agreements contain the obligation to ameliorate the protection of minorities.
Article 6 of the EU Treaty obliges the Member States to respect human
rights and fundamental freedoms, which include the protection of minorities. Article 22 of the European Charter of Fundamental Rights states
that the European Union shall respect the cultural, religious and linguistic
diversity within Europe. The citizen cannot take any individual rights under
this article.
Article 151(1) and (4) of the EC Treaty states that the Community
shall contribute to the flowering of the cultures of the Member States,
while respecting their national and regional diversity and at the same time
bringing the common cultural heritage to the fore and shall take cultural
aspects into account in its action under other provisions of this Treaty, in
particular in order to respect and to promote the diversity of its cultures.
In particular, the general provisions of Articles 13 and 12 of the EC Treaty
empower the Council to take appropriate action to combat discrimination
based on sex, racial or ethnic origin, religion or belief, disability, age or
sexual orientation.
Furthermore, there is a close collaboration between the European Union
and the European Council in the area of the protection of minorities that
has been concluded with a common programme between the European
Commission and the European Council for National Minorities.124 There
is also an agreement between the European Community and the European
123 Ibid p 27: This article is based on Art 6 of the European Social Charter and on the
Community Charter of the Fundamental Social Rights of Workers (points 12 to 14). The right
of collective action was recognised by the European Court of Human Rights as one of the
elements of trade union rights laid down by Art 11 of the ECHR. As regards the appropriate
levels at which collective negotiation might take place, see the explanation given for the above
article. Collective action, including strike action, comes under national laws and practices,
including the question of whether it may be carried out in parallel in several Member States.
124 Working Document of the European Commission, 22 May 2001, SEC(2001)801, p 50.

Council for the creation of a close collaboration between the European
Monitoring Centre on Racism and Xenophobia (EUMC) and the European
Council. A further collaboration between the European Union and the
European Council also exists in respect of the stability pact for South-East
Europe, which has been agreed in connection with the Kosovo crisis.125
The stability pact also aims at protecting minorities in connection with the
stabilisation of the region.126
In Bickel and Franz,127 before the European Court of Justice (ECJ), the
applicant Mr Bickel, a lorry driver of Austrian nationality, was resident
at Nziders in Austria. On 15 February 1994, while driving his lorry at
Castelbello in the Trentino-Alto Adige Region of Italy, he was stopped by
a carabinieri patrol and charged with driving while under the influence of
alcohol. Mr Franz, a German national resident at Peissenberg in Germany,
visited the Trentino-Alto Adige as a tourist. In the course of a customs
inspection, he was found to be in possession of a type of knife that was
prohibited. In each case, the accused made a declaration in the presence
of the District Magistrate of Bolzano that he had no knowledge of the
Italian language and, relying on rules concerning the protection of the
German-speaking community of the Province of Bolzano, requested that
the proceedings be conducted in German. The ECJ pointed out that the
right conferred by national rules to have criminal proceedings conducted
in a language other than the principal language of the state concerned
falls within the scope of the EC Treaty and must comply with Article 6
thereof.
Article 6 of the EC Treaty precludes national rules which, in respect of a
particular language other than the principal language of the Member State
concerned, confer on citizens whose language is that particular language
and who are resident in a defined area the right to require that criminal
proceedings be conducted in that language, without conferring the same
right on nationals of other Member States travelling or staying in that area,
and whose language is the same.
CONCLUSIONS
The efforts of the international community to protect and raise the standard of group and minority rights have been gradually enforced over the
last few decades. The protection of collective or group rights as such, or
of individuals belonging or representing a group or a minority, shows a
125 Common Position of 17 May 1999, 1999/345/CFSP, concerning the Stability Pact for
South-Eastern Europe.
126 Breitenmoser, Riemer and Seitz, n 57 above, p 197.
127 Case C-274/96 Bickel and Franz[1998] ECR I-7637.

similar, but time-delayed development of several years in comparison with
the protection of human rights. As is the case with human rights, group and
minority rights seem to be most developed in Europe thanks to the active
role both of the Council of Europe and the European Union.
A first phase of codification of group and minority rights into conventions and agreements began in the late 1980s and has not yet been
completed. For example, there is still no clear and undisputed definition
of minorities. In the last few decades, several proposals have been made
for the creation of a new international court for the protection of minority
rights in Europe.
Nevertheless, group and minority rights are gradually beginning to be
recognised and applied by national and international norms and institutions. In Europe, several conventions contain a reporting system with bodies and committees of independent experts. In addition, treaty provisions
protecting human rights may be invoked by several individuals together or
by legal persons in judicial proceedings before courts.
Just how long the respective phases are going to last is open to debate,
but an extensive interpretation of the individual application according to
ECHR, Article 34 can already be seen as a vital improvement of an effective and judicial protection of the therein mentioned groups and minorities.
Obviously, the adoption of Protocol No 12 to the ECHR also brings an
important fortification of the protection of groups and minorities from all
forms of unjustified discrimination. However, since this new Protocol has
been ratified by only a small number of states, the ECtHR has not yet been
able to apply it in its evolving and dynamic jurisprudence.
SELECT BIBLIOGRAPHY
Barthel, A, Entwicklung und Menschenrechte: das Recht aus Entwicklung als
Menschenrecht (1986)
Benvenisti, E, Collective Action in the Utilization of Shared Freshwater: the
Challenges of International Water Resource Law (1996) AJIL 384
Binder, J, The Human Dimension of the OSCE: From Recommendation to
Implementation (Vienna, Verlag, 2001)
Bloed, A, The OSCE and the Issues of National Minorities in E Phillip and A Rosas
(eds), Universal Minority Rights (Turku, Abo Akademi, 1995)
Bloed, A and Van Dijk, P (eds), Protection of Minority Rights through Bilateral
Treaties (The Hague, Kluwer Law International, 2000)
Breitenmoser, S and Richter, D, Die Verwirklichung der KSZE-Grundstze zum
Schutze nationaler Minderheiten durch Organleihe bei der EMRK (1991)
EuGRZ 141
Breitenmoser, S, Riemer, B and Seitz, C (eds), Praxis des Europarechts
Grundrechtsschutz (Schulthess, 2006)
Brownlie, I, Principles of Public International Law (5th edn, Oxford, Oxford

Brhl-Moser, D, Die Entwicklung des Selbstbestimmungsrechts der Vlker unter
besonderer Bercksichtigung seines innerstaatlich-demokratischen Aspekts und
seiner Bedeutung fr den Minderheitenschutz (1994)
Buergenthal, T, International Human Rights in a Nutshell (3rd edn, West Publishing
Co, 2002)
Cameron, I, An Introduction to the European Convention on Human Rights
(Uppsala, Iustus Frlag, 1998)
Castellino, J, International Law and Self-Determination (The Hague, Kluwer Law
International, 2000)
Diaconu, I, Minorities from Non-Discrimination to Identity (Bucuresti, Lumina
Lex, 2004)
Fawcett, J, The International Protection of Minorities in Minority Rights, Group
Report No 41 (1979)
Frowein, JA and Bank, R, The Effect of Member States Declarations Defining
National Minorities upon Signature or Ratification of the Council of Europes
Framework Convention (1999) ZaRV 649
Grabenwarter, C, Europische Menschenrechtskonvention (2005)
Grillberger, K, Die Kollektivbeschwerde nach der Europischen Sozialcharta in
W Geppert, C Klein and R Leutner (eds), Sozialpolitik ist Gesellschaftspolitik
(Vienna, MANZsche, 2001)
Haefliger, A and Schrmann, F (eds), Die Europische Menschenrechtskonvention
und die Schweiz (2nd edn, 1999)
Hailbronner, K, Der Staat und der Einzelne als Vlkerrechtssubjekt in WG
Vitzthum (ed), Vlkerrecht (1997)
Harris, M, Human Rights Monitoring and the CSCE: a Perspective from Budapest
(HM, 1995)
Hillgruber, C, Minderheitenschutz im Rahmen der Europischen
Menschenrechtskonvention-Stand und Entwicklung in D Blumenwitz and G
Gornig (eds), Minderheiten- und Volksgruppenrechte in Theorie und Praxis
(Kln, Wiss U Pol, 1993)
Hobe, S and Kimminich, O, Einfhrung in das Vlkerrecht (8th edn, Stuttgart,
UTB, 2004)
Hofmann, R, Minority Rights: Individual or Group Rights? A Comparative
View on European Legal Systems (1997) 40 German Yearbook of International
Law 356
Imber, P-H, Foreword in M Tsatsa-Nikolovska, Non-discrimination: a Human
Right: Seminar Marking the Entry into Force of Protocol No 12 to the European
Convention on Human Rights (2005)
Klin, W and Knzli, J, Universeller Menschenrechtsschutz (Helbing & Lichtenhahn,
2005)
Kaufmann, B, Das Problem der Glaubens- und berzeugungsfreiheit im Vlkerrecht
(Dissertation, Zurich, Schulthess, 1989)
Kunig, P, The Protection of Human Rights by International Law in Africa (1982)
25 German Yearbook of International Law 138
Leach, P, Taking a Case to the European Court of Human Rights (2nd edn, Oxford,
Oxford University Press, 2005)
Malloy, T, National Minority Rights in Europe (Oxford, Oxford University Press,
2005)

Matscher, F, Kollektive Garantie der Grundrechte und die Staatenbeschwerde nach
der Europischen Konvention fr Menschenrechte in B-C Funk (ed), Der neue
Rechtsstaat vor neuen Herausforderungen, Festschrift fr Ludwig Adamovich
(2002)
Nowak, M, Introduction to the International Human Rights Regime (Brill
Academic Publishers, 2003)
Oeter, S, Selbstbestimmungsrecht im Wandel, berlegungen zur Debatte um
Selbstbestimmung, Sezessionsrecht und vorzeitige Anerkennung (1992) 52
ZaRV 741
Peters, A, Einfhrung in die Europische Menschenrechtskonvention (Munich, CH
Beck, 2003)
Riedel, E, Menschenrechte der dritten Dimension (1989) EuGRZ 11
, Group Rights and Collective Aspects of Individual Human Rights in W Kalin
(ed), Current Problems of Human Rights Protection (CF Muller, 1994)
Rnquist, A, The Functions of the OSCE High Commissionar on National
Minorities with Special Regard to Conflict Prevention in E Klein (ed), The
Institution of a Commissioner for Human Rights and Minorities and the
Prevention of Human Rights Violations (1995)
Scharpenack, H, Das Recht auf Entwicklung (1996)
Slinn, P, The International Law of Development: a Millenium Subject or a Relict of
the Twentieth Century? in W Benedek, H Isak and R Kicker (eds), Development
and Developing International and European Law (Frankfurt, Peter Lang, 1999).
Thornberry, P and Estebenez, M (eds), Minority Rights in Europe (Strasbourg,
Council of Europe Publishing, 2004)
Tsatsa-Nikolovska, M, Non-discrimination: a Human Right: Seminar Marking the
Entry into Force of Protocol No 12 to the European Convention on Human
Rights (2005)
Van Dijk, P and Van Hoof, GJH, Theory and Practice of the European Convention
on Human Rights (The Hague, Kluwer Law, 1998)
Verstichel, A, Recent Developments in the UN Human Rights Committees
Approach to Minorities, with a Focus on Effective Participation (2005) 12
International Journal on Minority and Group Rights 25
Villiger, ME, Handbuch der Europischen Menschenrechtskonvention (2nd edn,
1999)
Wildhaber, L, Protection against Discrimination under the European Convention
on Human Rights: a Second-Class Guarantee? (Riga, Graduate School of Law,
2001)
13
International Human Rights Law in
Theory and Practice
JEAN ALLAIN
t has taken two hundred years for states to tame the beast unleashed
during the French Revolution: that which we call rights. This notion,
manifest in the slogan Libert, Equalit, Fraternit, challenged the
European establishment, by mobilising a French peoples army to protect
the revolution and, through the Napoleonic Wars, to threaten the royal
prerogatives of European ruling elites. The successes of the anti-slavery
and peace movements of the nineteenth century demonstrated that states
had at that time yet to come to grips with the ideological power vested in
populist movements grounded in the notion of rights. It was only in the
wake of the Second World War that states, collectively, understood that the
means of controlling the ideology of rights was to grant such rights; but
on their terms and in their interests. Thus, the 1948 Universal Declaration
of Human Rights, while recognising the inherent dignity and inalienable rights of all members of the human family, also recognised that it is
essential, if man is not to be compelled to have recourse, as a last resort,
to rebellion against tyranny and oppression, that human rights should be
protected by the rule of law.
Thus, for the international community of states, human rights were to
be accorded as a type of a pressure-valve that could regulate the extent to
which individuals might be protected from the abuse of states: they were
not to be a social good established in absolute terms. In fact, for states, the
approach to international human rights law was antithetical to the concept
itself: international human rights remain above all crafted in the interests of
the state. At the international level, the nature of the anarchic legal system
allows states much more leeway to construct human rights in their image
as opposed to those they are meant to protectthe individual. This chapter
considers the gap that exists between international human rights law as it is
and international human rights law as it ought to beor as Koen De Feyter
notes in Chapter 1, the move from the realm of ideas to the world of practical solutionsas a means of demonstrating the manner in which states have
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created an international human rights legal regime that reflects their interests. What the present study seeks to explore is the fundamental paradox of
international human rights law: that the entities which are meant to protect
rights and legislate them into existence are those that violate the same-said
rights. Consideration thus falls to the gap between the ought and the is
of international human rights law, through an examination of both the
United Nations system of human rights promotion and the regional systems
of human rights protection (African, European and Inter-American) so as
to demonstrate the manner in which this fundamental paradox has created
a system which is quite divorced from the ideal type and ultimately services
the interest of states, at the expense of protecting the rights of individuals.
What emerges is a willingness of states to privilege individual rights over
group rights; civil and political rights over social and economic rights; and,
above all, the dictates of the state over the rights of human beings.
The starting place to consider the effectiveness of any law is to consider
its impact. Starting from this premise, the question which is posed is this:
can we say that international human rights law has had an overall positive effect since its introduction? In essence, this research question seeks to
take as its starting point the promise of the 1948 Universal Declaration of
Human Rightsthe oughtand consider the manner in which it has been
translated into law: the is. The Universal Declaration starts thus:
Article 1: All human beings are born free and equal in dignity and rights. They
are endowed with reason and conscience and should act towards one another in
a spirit of brotherhood.
Article 2: Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or
other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a
person belongs, whether it be independent, trust, non-self-governing or under any
other limitation of sovereignty.
As laid out, the Universal Declaration is radically egalitarian, declaring that

human rights are endowed by virtue of ones humanity, which is vested in
reason and conscience; and, as a result, the Declaration states that all are to be
considered equal in dignity and in rights. In adopting the Universal Declaration,
the UN General Assembly stated that it was to be a common standard of
achievement for all peoples and all nations. If we are to take the international
community of states at its word, then we must accept at face value their 1993
Declaration made in Vienna, that all human rights are universal, indivisible
and interdependent and interrelated1 and consider that civil and political rights
such as free speech and the prohibition against torture have the same standing
1 United Nations World Conference on Human Rights, Vienna Declaration and Programme
for Action, 1993.
International Human Rights Law in Theory and Practice 273

in law as social and economic rights such as the right to an adequate standard
of living or right to work. But what of this common standard of achievement
today? Is the human race more egalitarian today than it was in the aftermath
of the Second World War: if not, has the gap between rich and poor narrowed
as a result of international human rights which mandate an adequate standard
of living including a right to food, shelter and health? If, as will be shown, that
gap has actually grown, then how has the regime of international human rights
law failed? It is this gap between the ought and the is that will be considered
so as to demonstrate the manner in which international human rights law privileges certain structures of power manifest in the state that, in essence, reinforce
the status quo rather than seeking to challenge and redress it.
STATE OF THE HUMAN RACE
Before considering the legal regime of international human rights, let us

first turn to the state of development of the human race. Are we, as a
human race, better off today then we were in 1948 and the promise of the
Universal Declaration; or in 1950 with the European Convention of Human
Rights; or in 1966, when the International Covenants on Economic, Social
and Cultural Rights and on Civil and Political Rights were signed; or in
1969 with the American Convention on Human Rights; or in 1981 with
the African Charter on Human and Peoples Rights? The United Nations
Human Development Programme has, since 1990, been providing an annual
index of the state of the world, considering indicators such as infant mortality, life expectancy and literacy to gauge the state of human development.
Since then, it has been able to compare and to evaluate the progress which
has been made, and to demonstrate in a number of fundamental ways the
manner in which the gap between rich and poor continues to grow. The
2005 UN Human Development Report, notes for instance that for:
most of the worlds poorest countries the past decade has continued a disheartening trend: not only have they failed to reduce poverty, but they are falling further
behind rich countries. Measured at the extremes, the gap between the average
citizen in the richest and in the poorest countries is wide and getting wider. In
1990 the average American was 38 times richer than the average Tanzanian.
Today the average American is 61 times richer.2
Granted, as the quote indicates, this example is an extreme; yet in real

terms, the gap between rich and poor states, between the rich and poor
people within states, which is already large, continues to widen:
One in five people in the worldmore than 1 billion peoplestill survive on
less than $1 a day, a level of poverty so abject that it threatens survival. Another
2 United Nations Development Programme, Human Development Report 2005,
International Cooperation at the Crossroads: Aid, Trade and Security in an Unequal World
(2005), pp 367.
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Jean Allain
1.5 billion people live on $1$2 a day. More than 40% of the worlds population
constitute, in effect, a global underclass, faced daily with the reality or the threat
of extreme poverty.
This is in contrast to a world of prosperity, where on average, people born

in a developing country today can anticipate being wealthier, healthier and
better educated than their parents generation.3
The 2005 UN Human Development Report notes the fundamental issue
in the starkest of terms: We may live in a world where universal rights
proclaim that all people are of equal worthbut where you are born in
the world dictates your life chances.4 While there have been successes in
reducing poverty, this has been driven by the extraordinary success of East
Asia, particularly China:
At the other end of the spectrum, Sub-Saharan Africa had almost 100 million
more people living on less than $1 a day in 2001 than in 1990. South Asia reduced
the incidence of poverty, though not the absolute number of poor people. Latin
America and the Middle East registered no progress, while Central and Eastern
Europe and the CIS experienced a dramatic increase in poverty. The number of
people living on less than $2 a day in Central and Eastern Europe and the CIS
rose from 23 million in 1990 to 93 million in 2001, or from 5% to 20%.5
The 2005 Human Development Report is also of interest because it does

not only look back on the past 15 years of development but seeks to look
to the future and to the UN Millennium Development Goals, whereby
states have committed themselves to the aim of halving extreme poverty
and to extending universal rights to all by 2015. While acknowledging that
projections based on trends provide insights into one set of possible outcomes. They do not define the inevitable, the Report is rather facetious in
saying that where the Millennium Development Goals are concerned, this
is unambiguously good news;6 this is so, because states are nowhere near
achieving their aims! The 2005 Report notes that from the perspective of
2015, there is a growing danger that the next 10 years (like the past 10) will
go down in history not as a decade of accelerated human development, but
as a decade of lost opportunity, half-hearted endeavour and failed international cooperation. It notes that if current trends continue, the headlines in
2015 may include the failure of states to meet child mortality targets which
allowed for 4.4 million children to die. And that over the next 10 years the
cumulative gap between the target and the current trend adds more than
3
Ibid pp 24 and 19.

Ibid p 25.
5 Ibid p 34. The Report goes on to note (at p 38) that: Income inequalities between countries account for the bulk of global income inequality. About two-thirds of overall inequality
can be traced to this source. Inequality within countries accounts for the balance. Reproduced
at a national level, the gap between rich and poor countries would be regarded as socially
indefensible, politically unsustainable and economically inefficient.
6 Ibid p 18.
4

41 million children who will die before their fifth birthday from the most
readily curable of all diseasespoverty.7
LEGAL REGIME OF INTERNATIONAL HUMAN RIGHTS LAW
Considering the apparent gap between the promise of the Universal Declaration of Human Rights that all should be treated equally, and the Vienna
Declaration that all rights are universal, on the one hand, and the reality of
the human condition, on the other hand, which sees an ever-widening gap
between rich and poor, not only over the last 15 years but also projected
into the future, it is now time to seek to understand the role that human
rights law plays (or fails to play) internationally and the way in which
it reflects this disjuncture. Let us first consider the system of the United
Nations, which is meant to be universal in scope, before going on to consider the regional human rights systems.
The Universal System of Human Rights Promotion
As has been noted, the 1948 Universal Declaration was a promise made
by the international community of states to its citizens. Though framed
in legal language, the Declaration was meant to be just that: aspirational,
not binding as law. This is so, because, at its heart, the United Nations is
an inter-state organisation meant to provide collective security for states,
wherein the issue of the human rights of individuals was considered as
marginal, at best. Thus, as conceived in 1945, the United Nations did not
envision the protection of human rights as being part of its mandate. While
the UN Charter speaks of promoting and encouraging respect for human
rights, and seeks to create conditions of stability necessary to peaceful
co-existence among states through the universal respect for and observance of human rights and for fundamental freedoms, nowhere in the UN
Charter do states commit themselves to actually protecting human rights
through enforcement. It was upon this weak foundation that the Universal
Declaration emerged in 1948. The promise of the universality of the
Universal Declaration was, it must be said, sidelined when states moved, in
1966, to take the aspirations of the Universal Declaration on Human Rights
and to translate them into law.
In 1966, divided by the Cold War, the United Nations agreed to establish two
human rights instruments, calling them covenants: the International Covenant
on Economic, Social and Cultural Rights (ICESCR) and the International
Covenant on Civil and Political Rights (ICCPR). These treaties reflect some
of the largest gaps between the ought and the is of international human
7
Ibid pp 17 and 18.
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Jean Allain
rights law, as they demonstrate a number of fundamental departures from

the concept of human rights as conceived of in 1948. Of course, the unspoken premise at the heart of the Universal Declaration and the Covenants
is that they are cloaked in terms of individual rights and not group rights.
Further, the Covenants lay to waste the myth, still perpetuated 30 years later,
that all human rights are universal, indivisible and interdependent and interrelated. The ICCPR emphasised so-called first generation8 human rights,
which are typically portrayed as negative rights, in juxtaposition to second
generation, positive, human rights, as found in the ICESCR. Not only was
the universality, indivisibility, interdependence and interrelatedness of human
rights sidelined at the normative level in the Covenants, but also at the level
of application, where states set down two very different means of ensuring
respect for their conventional undertakings. Under Article 2 of the ICESCR,
states parties have agreed:
to take steps, individually and through international assistance and co-operation,
especially economic and technical, to the maximum of its available resources,
with a view to achieving progressively the full realization of the rights recognised
in the present Covenant by all appropriate means, including particularly the
adoption of legislative measures. [Emphasis added]
while what should be the analogous provision in the ICCPR reads:

to respect and to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognised in the present Covenant, without distinction of
any kind, such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.
Thus, while the rights of the ICCPR are automatically applicable, those of
the ICESCR are meant to be applicable only in an incremental manner.9
Beyond this division into generations of human rights and differences in
their applicability, the Covenants are also a reflection of what is endemic to
United Nations treaties meant to protect human rights: they provide very
little protection, properly understood. That is to say, the Covenants, like
the five other main UN human right treaties,10 have limited supervisory
mechanisms and no ability (in an obligatory manner) to make a determination as to a states possible violation of an individuals rights. Thus, as we
8 The notion of generations of human rights was introduced by Karl Vasak, when he
was Director of the Human Rights and Peace Division at UNESCO: C Ovey and R White,
Jacobs and White: The European Convention on Human Rights (Oxford, Oxford University
Press, 2006), p 5.
9 For the manner in which rights are to be applied under the ICESCR, see Committee
on Economic, Social and Cultural Rights, General Comment 3, The Nature of States Parties
Obligations, UN Doc E/1991/23 (1990).
10 International Convention on the Elimination of All Forms of Racial Discrimination,
1965; Convention on the Elimination of All Forms of Discrimination against Women, 1979;
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, 1984;
Convention on the Rights of the Child, 1989; and International Convention on the Protection
of the Rights of All Migrant Workers and Members of their Families, 1990.

shall see, while the regional systems have human rights courts to adjudicate
claims, no such institution functions at the universal level, within the United
Nations. Instead, supervisory bodies (committees) have been established
not to determine violations, but instead to seek to establish a dialogue and
to assist states in attempting to carry out their obligations. The supervisory committees main task then is to consider periodical reports of states
parties application under the various UN human rights treaties. On the
basis of such considerations, the committees will deliver their Concluding
Observations in which they provide both positive and negative feedback
to states. A further output of these committees are so-called General
Comments or General Recommendations which are authoritative pronouncements11 of the current nature of a given provision (eg Article 4) of
a treaty.
In certain circumstances, individuals may petition these committees to
have their claims of human rights violations heard; however, this petition process reveals a fundamental flaw of the international legal system
which acts to the detriment of human rights protection internationally. As
opposed to the domestic legal order which is based on coercion (ie where
the state maintains a monopoly on legitimate violence through its law
enforcement system manifest in the police, the judiciary, and the penal system), the international system functions on the basis of anarchy wherein all
states are considered equal, with no state allowed to force legal undertakings on another: in essence, the system is one of cooperation not coercion.12
This means therefore that states are only bound by the laws they consent
to, which creates a system whereby some states are party to some human
rights treaties whereas other states may not be. Beyond this limitation, in
certain situations states may accept, for example, the 1951 Convention on
the Status of Refugees but can, through so-called reservations, opt out
of certain provisions (eg Articles 3 and 12), thus limiting their obligations
under that instrument. Where this is relevant to individual petitions (called
communications) is that once a state has consented to a treaty, it must make
a further declaration accept the possibility of persons petitioning against
it, or in the case of the ICCPR, by consenting to a new legal instrument.13
Thus, a second active decision has to be made by states beyond ratifying
a treaty; that is, in order to opt in to a system of allowing individuals to
make claims, states must mobilise their domestic legislation once more to
give consent. One final point concerning the petitions system before human
11 J Allain, International Law in the Middle East: Closer to Power than Justice (Aldershot/
Birmingham, Ashgate, 2004), p 201.
12 Here anarchy should be understood not in the pejorative sense, but as the basis of a
system of governance lacking central authority, as considered in H Bull, The Anarchical
Society (1977) and summarised in E Capouya and K Tompkins (eds), The Essential Kropotkin
(London, Liveright Publishing Corporation, 1975), pp 10920.
13 Optional Protocol to the International Covenant on Civil and Political Rights, 1976.
278 Jean Allain

rights bodies: the decisions of the committees, while they may be persuasive, are not binding on states. States have no legal obligation to follow the
decisions in such cases.
Consideration of the United Nations system in this chapter has so far
concentrated on what states have set down as treaty law. However, sight
should not be lost of the so-called Charter-based system of the United
Nations which functions on the minimalist provisions of the UN Charter
mentioned earlier. On this basis, while the UN Security Council could act
on issues of human rights and arguably has done so in the past, its mandate
is to focus on international peace and security and it thus does not have
the authority under the Charter to overtly act to protect human rights: it
may do so only as a byproduct of seeking to secure international peace.
Instead, the UN organ tasked with dealing with issues of human rights is
the UN General Assembly (and its Economic and Social Council) which,
in March 2006, abolished the Commission on Human Rights in favour of
a Human Rights Council. The Council, consisting of 47 states, meets at
regular intervals for no less than 10 weeks a year, and was established as
an attempt to become disassociated from the discredited Commission by
emphasising the importance of ensuring universality, objectivity and nonselectivity in the consideration of human rights issues, and the elimination
of double standards and politicization.14 It remains to be seen whether the
Human Rights Council will actually be able to escape the trappings of the
former Commission, as the very nature of consideration of human rights
norms by such a political body isnot surprisinglypolitical. Thus, the
past pattern is bound to repeat itself: states have been willing to highlight
the human rights violations of their foes while remaining silent about their
friends; or been unwilling to challenge powerful states for fear of damaging bilateral relations. Beyond the Council, mention should be made of
the former Sub-Commission for the Promotion and Protection of Human
Rights which acted as a kind of think-tank for the former Commission, and
was a rather progressive force in pushing states to examine human rights
situations in various countries by way of so-called Special Procedures. The
Sub-Commission, made up of experts acting in their personal capacity, also
drafted both thematic reports and country specific report for consideration
by the Commission, though the latter function was taken away from it by
the Commission in 2000, as states felt targeted by having their domestic
human rights records the topic of an international human rights report.
The Sub-Commission was then voted out of existence in June 2006 to be
replaced by an Advisory Body to the new Human Rights Council. To summarise: in regard to the universal system, it may be said that the United
Nations has gone about setting normative standards for human rights, but
14 UN General Assembly, Resolution adopted by the General Assembly: Human Rights
Council, UN Doc A/RES/60/251, 3 April 2006.

has not succeeded in having states, through legal redress, protect the rights
of those within their jurisdictions.
Regional Systems of Human Rights Protection
Regional human rights systems have moved beyond promotion of human
rights through establishing normative standards, to constituting international courts to protect human rights. Yet, the very establishment of
these structures of adjudication have spawned a new set of difficulties
that increase the gap between what international human rights law
ought to be and what, in fact, it is. First, before considering the various
systems, it should be emphasised that the regional systems of human
rights protection exclude the majority of the worlds populations since
no such system exists in Asia. As for the systems themselves; until
recently, they could easily be presented as part of a continuum based on
the mechanisms used to protect rights. The European system functions
exclusively on the basis of a court; the Inter-American system with a
commission and a court, and the African system solely with the use of
a commission. The conceptualisation of the regional systems as a continuum no longer holds, however, as in 2004 the African system introduced a court to accompany its commission (this will be discussed in
further detail later). Let us instead turn to consider each of the regional
systems individually as a means of highlighting factors which widen the
gap between the ought and the is.
As a result of the manner in which minorities were treated by the
Nationalist Socialists of Germany during the Second World War, and the
failure of the United Nations to establish a system of human rights protection manifest in the adoption of the Universal Declaration, European states
established the Council of Europe in 1948 as an ideological counterpart
to NATO, as the advent of the Cold War had created a chill in East-West
relations throughout Europe. In 1950, under the auspices of the Council
of Europe, statesusing the triad of democracy, rule of law and respect
for human rightssigned into existence the European Convention for the
Protection of Human Rights and Fundamental Freedoms (ECHR). The
European Convention established a European Commission and European
Court to oversee the application and interpretation of the Convention.
While human rights commissions, per se, will be considered later, it suffices
to note here that the European Commission ceased to exist in 1998 as a
result of Protocol No 11 to the ECHR coming into force. The European
Court of Human Rights (ECtHR) is thus mandated with the exclusive
supervision of the ECHR and its ProtocolsProtocols which, it must be
said, have not only amended the procedures and structures agreed to in
1950, but have, over the years, added a number of new rights to the normative order of Europe. By way of example, Protocol No 12 (which came
280
Jean Allain
into force in 2005) amends the ECHR by making non-discrimination a

stand-alone right as opposed to a parasitical15 one; that is, before Protocol
No 12, issues of non-discrimination could only be adjudicated upon if
it could be shown that discrimination had been attached to another
Convention right.
The European system, which is often laurelled as the most advanced and
best human rights system in the world, suffers one major blind spot. That
myopia is not a result of what it does (though those within the ECtHR
would argue that the system itself is imploding, a victim of its own success,
as a result of the burden which has been placed on the Court by the tens
of thousands of applications it receives each year);16 instead, the blindness
can be attributed to what it does not do. The European Convention which
enumerates civil and political rights is not, in fact, the European system, as
the Council of Europe also has other treaties, including the seldom considered 1961 European Social Charter which was revised in 1991. The way
in which the Social Charter functions is instructive in demonstrating the
manner in which the European system promotes civil and political rights
and fails to give the same treatment, or even adequate treatment, to issues
related to social and economic rights, and thus reinforces the status quo.
The European Social Charter does not fall under the remit of the
European Court of Human Rights and thus its rights are non-justiciable.
Instead, much like the United Nations system, economic and social rights
in Europe are supervised by a committee of independent experts to which
states provide periodic reports. Interestingly, the European Social Charter
explicitly allows for the divisibility of rights, as it obliges each state to
declare which rights it will seek to uphold and which it will not be bound
by (of the 31 enumerated rights, states must indicate at least 22 rights they
are prepared to accept).17 Further, the European Social Charter stands out,
as it does not allow individuals to petition the European Committee of
Social Rights; instead, if states individually agree by way of a declaration
on the basis of a 1995 Protocol, a collective complaints procedure has been
established allowing for trade unions and international NGOs to petition.
Once again, in such an event, recommendations made by the Council of
15 See S Livingstone, Article 14 and the Prevention of Discrimination in the ECHR (1997)
25 European Human Rights Law Review 25.
16 The Council of Europe recognises the burden which has been placed on the ECtHR and
is seeking to rectify this by way of the 2004 Protocol No 14 to the ECHR, which will amend
the supervisory system of the Convention.
17 The undertaking of states is a bit more complicated than what has been indicated above,
as Art A of the European Social Charter reads: 1 Subject to the provisions of Article B below,
each of the Parties undertakes: b) to consider itself bound by at least six of the following
nine articles of Part II of this Charter: Articles 1, 5, 6, 7, 12, 13, 16, 19 and 20; c) to consider
itself bound by an additional number of articles or numbered paragraphs of Part II of the
Charter which it may select, provided that the total number of articles or numbered paragraphs by which it is bound is not less than sixteen articles or 63 numbered paragraphs.

Europe to a state found in breach of the Social Charter are not binding on
the party: they remain mere recommendations.
In the period between 1980 and 1998, the European and Inter-American
conventions were analogous. While Protocol No 11 has abolished the
European Commission, during this period both constitutive instruments
provided for a commission and a court to supervise the execution of the
treaties. While on paper the ECHR and the 1969 American Convention on
Human Rights appeared similar, in practice they functioned in truly diverging ways, as the Strasbourg court dealt with hundreds of cases on an annual
basis, while the Inter-American Court, languishing in San Jos, Costa Rica,
gave final judgment in only 16 cases over the 18-year period considered
here.18 Yet how is this possible, in light of the fact that during the 1980s,
Latin America states were in the midst of major upheavals as literally millions of human rights abuses transpired in a United States-backed attempt
by rightist elements to weed out so-called communists from the Western
Hemisphere? First, it should be made plain that in distinction to the ECHR
which, after Protocol No 11 makes the jurisdiction of the ECtHR mandatory for all Members of the Council of Europe, in the Inter-American context a large number of states had yet to accept the American Convention or
to make a declaration accepting the Courts jurisdiction. To this day, in fact,
Canada, most Caribbean states and the United States remain outside the
system. A second limitation is that, structurally, the American Convention
made it difficult for a case actually to reach the Court. In the words of
Judge Rodolfo Piza Escalante in a concurring opinion to the first case considered by the Inter-American Court of Human Rights:
I have come to the conclusion that unfortunately the system of the Convention
appears to make [human rights protection] impossible because the American
States in drafting it did not wish to accept the establishment of a swift and effective jurisdictional system but rather they hobbled it by interposing the impediment of the Commission, by establishing a veritable obstacle course that is almost
insurmountable, on the long and arduous road that the basic rights of the individual are forced to travel.19
Judge Piza points to the Commission as a significant impediment to human

rights protection in the Americas. In the Inter-American system, as in the
African system, individuals cannot directly access the human rights court,
but commissions, staffed by individuals appointed by states, bring cases on
their behalf. The Inter-American Commission not only considers whether a
petition is admissible (as does the Inter-American Court), but also makes a
determination as to whether it wishes to proceed with the case having first
18 See J Allain, A Century of International Adjudication: the Rule of Law and its Limits
(The Hague, TMC Hasser Press, 2000), pp 93125.
19 Inter-American Court of Human Rights, In the Matter of Viviana Gallardo, 13
November 1981, p 99.
282
Jean Allain
sought to settle the issues through negotiations with the states accused of
what would have been mass violations of the American Convention. The
Inter-American Court openly criticised the Commission for failing to bring
cases forward during this period, stating:
Although the Convention does not specify under what circumstances a case
should be referred to the Court by the Commission, it is implicit in the functions
that the Convention assigns to the Commission and the Court that certain cases
should be referred by the former to the Court.20
A third and final limitation affecting the effectiveness of the American

Convention was that the states, having established the system, failed to provide adequate funding for that system; so that while states could, at a rhetorical level, point to the establishment of a human rights system, the reality
was inadequate safeguarding of the rights of individuals in the Americas.
Throughout the 1980s and 1990s, the Inter-American Court never received
more than US$1 million a year from the Organization of American States,
having instead to rely on the host state for subsidies and being rather
creative in sharing resources with the non-governmental Inter-American
Institute of Human Rights. The inadequacies of budgeting are best reflected
in the fact that the Court, which functioned with part-time judges, had only
four employees (one of whom was a driver) paid for by the states which
established it. An overall assessment of the Inter-American system during
this time frame might well coincide with that of Judge Mximo Cisneros,
expressing his disappointment in 1986, having sat on the Court for six years
and who was, at that stage, retiring, saying that he felt a sense of frustration
in leaving the Court before it has had the opportunity to hear a single case
of a violation of human rights, in spite of the sad realities of our America
in this field.21 Thus, the three factors noted here demonstrate a rather wide
gap with regard to the protection of civil and political rights, between the
Inter-American and the European systems of human rights protection during the period under review. It must be said that since the end of the period
considered (1998), the Inter-American Court and the Commission have
been cooperating, the Organization of American States has been willing to
release more money into the system, and ultimately, the Court has rendered
more judgments, though the Courts effectiveness has remained limited: we
are speaking about one or two handfuls of cases settled per year as opposed
to the now thousands of cases settled per year by the ECtHR.
The final regional system to be considered is the system based on the 1981
African Charter on Human and Peoples Rights which, to date, has functioned exclusively on the basis of supervision by the African Commission
20 Inter-American Court of Human Rights, Compulsory Membership in an Association

Prescribed by Law for the Practice of Journalism, 1 November 1985, p 96.
21 Ibid p 145.

on Human and Peoples Rights, situated in Banjul, the Gambia. This is so
because, although the 1998 Protocol on the Establishment of an African
Court on Human and Peoples Rights came into force in 2004, and judges
were elected in 2005, the Court itself only became operational in mid-2007,
as a result of problems related to integrating the African human rights
system, which was conceived under the Organization of African Unity, into
the new African Union, and specifically the relationship between the human
rights court and the African Unions African Court of Justice. With regard
to the African system, the issue which might be highlighted with regard to
the gap between the ought and the is, is the lack of acknowledgement
thus far in the 25-year history of the African system, of peoples rights
despite its centrality within the so-called Banjul Charter.
The African Charter not only enumerates a number of individual (primarily first generation) human rights, it also introduces into international
human rights law so-called third generation rights, solidarity or peoples
rights, such as the right of non-discrimination amongst peoples (Article
19), to self-determination (Article 20), over wealth and natural resources
(Article 21), to development (Article 22), to peace (Article 23), and to a
satisfactory environment favourable to their development (Article 24).22
The Commission has had two opportunities to deal with issues of peoples
rights, yet in both cases has side-stepped the issue. In the first, it found in
1995 that the claim of the Katangese, in what was then the Congo, to a right
of self-determination lacked evidence, noting that whether the Katangese
consist of one or more ethnic groups is for this purpose immaterial and no
evidence has been adduced to that effect. Instead, the Court decided that it
would be obligated to uphold the sovereignty and territorial integrity23 of
any state in light of challenges by groups within an established state seeking
to secede. The second situation where the Commission failed to engage with
the notion of group rights in any substantive manner was with regard to a
case against Shell Petroleum Development Corporation in Nigeria, this in
spite of the fact that the African Commission made plain that it would be
willing to give effect to all of the provisions in the Banjul Charter:
The uniqueness of the African situation and the special qualities of the African
Charter on Human and Peoples Rights imposes upon the African Commission an
important task. International law and human rights must be responsive to African
circumstances. Clearly, collective rights, environmental rights, and economic
and social rights are essential elements of human rights in Africa. The African
22 For consideration of peoples rights, see R Murray and S Wheatley, Groups and the
African Charter on Human and Peoples Rights (2003) 25 Human Rights Quarterly 213
and RN Kiwanuka, Note: the Meaning of People in the African Charter on Human and
Peoples Rights (1988) 82 American Journal of International Law 80.
23 African Commission on Human and Peoples Rights, Katangese Peoples Congress v
Zaire, African Commission on Human and Peoples Rights, Communication 75/92 (1995).
284
Jean Allain
Commission will apply any of the diverse rights contained in the African Charter.
It welcomes this opportunity to make clear that there is no right in the African
Charter that cannot be made effective.24
However, in a case where peoples rights were clearly at issue, and where
the Commission found violations in respect to the right to food, to a generally satisfactory environment favourable to their development, and to
people freely disposing of their wealth and natural resources, it did not
explicitly determine that the Ogonis were a people nor did it elaborate on
the parameters of these unique sets of rights.
CONCLUSION
While this chapter has sought to illustrate the gap between the ought and
the is of international human rights is in fact a desirable current, flowing
near the surface of what the reader will have discerned as the individualised
versus the collective nature of rights, which has been promoted internationally when moving from rights in the abstract to rights as law. Through the
critique presented, it becomes apparent that individual rights, and not group
rights, have primarily been privileged as being the subject of legal rights and
that the various systems of international human rights promotion or protection are ill-equipped to deal adequately with group rights even where (as
in the context of the Banjul Charter and the establishment of peoples rights)
such rights have been established. This chapter has expanded upon Koen
De Feyters consideration of the limits of the law presented in Chapter 1 by
demonstrating the extent of the gap between international human rights as
it ought to be and international human rights as it is.
It is within this gap that human rights activists struggle to make law
more effective. While a somewhat negative picture has been painted of the
overall regime of international human rights law, it should be remembered
that the international system is not meant to be a panacea; instead, it is
meant to catch those who fall through the cracks of the domestic system
which is where human rights shouldand mustbe protected. The gap
between the ought and the is of international human rights law can, first,
be measured in terms of the failure to give voice to group rights generally,
and specifically with regard to the African Commissions failure to actually
engage with peoples rights. That gap is widened further by an unwillingness on the part of states actually to abide by the universality, indivisibility,
interdependence and interrelatedness of human rights, by privileging civil
and political rights over social and economic rights. The promoting of first
generation human rights is seen in the manner in which these rights have
24 African Commission on Human and Peoples Rights, Social and Economic Rights
Action Center and Center for Economic and Social Rights v Nigeria, Communication 155/96
(2001).

been made internationally justiciable, while second generation rights have
not. While regional systems have gone beyond the United Nations system to
provide protection of human rights, that protection has favoured civil and
political rights and has been (at least in the context of the Inter-American
and African systems) a rhetorical system rather than an effective system of
human rights protection. When one considers that the international human
rights legal regime is a system set up by states, in their interest, it is easy to
see why there exists a rather large gap between the ought and the is.
SELECT BIBLIOGRAPHY
Allain, J, A Century of International Adjudication: the Rule of Law and its Limits
(The Hague, TMC Hasser Press, 2000)
, International Law in the Middle East: Closer to Power than Justice (Aldershot/
Birmingham, Ashgate, 2004)
Bull, H, The Anarchical Society (1977)
Kiwanuka, RN, Note: the Meaning of People in the African Charter on Human
and Peoples Rights (1988) 82 American Journal of International Law 80
Livingstone, S, Article 14 and the Prevention of Discrimination in the ECHR
(1997) 25 European Human Rights Law Review 25
Murray, R and Wheatley, S, Groups and the African Charter on Human and
Peoples Rights (2003) 25 Human Rights Quarterly 213
Ovey, C and White, R, Jacobs and White: The European Convention on Human
Rights (Oxford, Oxford University Press, 2006)
United Nations Development Programme, Human Development Report 2005,
International Cooperation at the Crossroads: Aid, Trade and Security in an
Unequal World (2005)
14
Human Rights and
International Relations
NICOLA CATELLANI
INTRODUCTION
his chapter concentrates on an analysis of the process of

internationalisation of human rights and its increasing relevance
both to theory and practice in international relations (IR). This has
contributed substantially to rendering the categorisations of human rights
provided by IR scholars in the early post-Cold War years more and more
difficult to use to interpret the dynamics that characterise the contextualisation of human rights in contemporary international relations. This chapter
focuses on the aspects that make traditional categorisations increasingly
obsolete rather than on a review of those categorisations.
Two main elements characterise the process of internationalisation of
human rights: first of all the increasing significance of the third generation
of rights, in particular group and minority rights, as issues that drive and
occupy the political agenda of many state actors in Europe and around the
world, especially after the end of the Cold War; secondly, the increasing
impact of structural phenomena which can result in human rights violations
(for example, migration).
The difficulties in categorising human rights within the realm of the IR
debate can also be seen as a more structural weakness of state actors in
managing the domestic and the international spheres as two separate policy
domains. It also raises questions about contradictions deriving from the
export of human rights through foreign policy and the restriction of individual liberties domestically.
One argument put forward in this chapter is that the issue of human
rights, at least in the European context, has become increasingly an element of many (Western) states foreign polices but that, at the same time,
international organisations have increasingly become the leading actors in
promoting actions against violations of human rights.
288 Nicola Catellani

FRAMING HUMAN RIGHTS IN THE INTERNATIONAL
RELATIONS DEBATE
The theme of human rights has increasingly been acquiring centrality both
in scholarly debate and in the actual foreign policies of states. During the
Cold War, the attention gained by human rights grew in parallel with institutional and legislative instruments developed mainly at United Nations
level, such as the 1948 Universal Declaration of Human Rights and the
numerous international human rights conventions. Consequently, there
emerged a body of legal norms and mechanisms as well as political instruments, ranging from human rights diplomacy to humanitarian intervention and international war crimes tribunals, which regulate governments
treatment of their citizens. Though very fragile, they did offer a ground to
submit the domestic conduct of governments to some sort of scrutiny by
individuals, domestic and international non-governmental organisations,
other states and international organisations.
However, it was only with the end of the Cold War and the redefinition
of the role of many actors on the international stage that human rights
gained importance as an issue on the political agenda of organisations like
OSCE, the European Union, as well as in several national foreign policies.
In other words, it can be argued that a process of internationalisation of
human rights has been emerging in the past few decades. This means that
the issue of human rights has been moving from the domestic to the international level, and that it has therefore entered the sphere of international
relations, bringing with it a number of questions which are strictly linked
to the debate among IR scholars.
Before considering the essence of the process of internationalisation of
human rights, it is crucial to tackle the question of where human rights
should be placed in the context of the main IR theories. The answer to this
question varies to a great extent according to the actors that are considered
central to the international system: states, individuals, international organisations, NGOs.
Indeed, when reading human rights in international relations, the main
focus is on the centrality attached to states and international institutions. In
fact, if we look at classic IR theories like realism/neo-realism and idealism/
liberalism, individuals and other actors, such as NGOs, play a marginal
role. This is an element that characterises most of the debate about human
rights and international relations: states are either seen as the main actor of
the game, and as the principal protector of human rights, or as the problem
at the origin of human rights abuses.
International institutions are also a constant element of the debate and, as
we will see below, increasingly play an active role on the international stage
on issues related to human rights. However, the discussion about the role
of international institutions in the context of the main IR theories relates to
Human Rights and International Relations 289

their capacity to express a truly supranational actorness and subjectivity,
rather than their raison detre as a tool merely reflecting state interests.
As Donnelly argues, there are three competing theoretical models of the
place of human rights in international relations, each with its own conception of the character of the international community.1
The statist model sees human rights principally as a national matter.
States are the primary actors entitled to deal with the issue. An international
community with a subjectivity of its own does not exist according to this
model. This approach has its roots in the realist/neo-realist tradition which
sees the international system as a place characterised by anarchy where survival is the objective to be achieved by maximising power and by furthering
(national) interests.2
The cosmopolitan model considers the role of individuals as important
players who, together with NGOs, constitute a challenge to states which,
nonetheless, remain the actors governing world politics. This approach puts
forward the idea of an existing global community; but, in spite of the fact
that it can certainly be argued that NGOs and individuals may be already
thinking and doing global politics (as demonstrated, for example, by the
anti-globalisation movement or NGOs such as Amnesty International), one
must note that such a community does not have an effective set of international institutions supporting it.
The internationalist model falls between the two extremes represented
by the statist and the cosmopolitan model. This model is, in principle, the
idea of a society of states which regulates and sets out norms. As Donnelly
points out, in this model international human rights activity is permissible
only to the extent authorised by the norms of the society of states.3
Donnellys categorisation could be interpreted as a continuum in which
the internationalist model represents the model getting closer in descriptive
terms to the current international setting. That categorisation can be seen
to a great extent as a re-elaboration of Vincents approach.4
Vincents argument in fact is characterised by the following three views
of the nature of international politics:
(a) the view that the only world community is a community of states,
and that the rules of this community are the rules of states and not
of individuals;
J Donnelly, International Human Rights (Westview Press, 1998), p 28.

S Kardas, Human Rights Policy and International Relations: Realist Foundations
Reconsidered, Working Paper No 31 (HRHW, University of Denver, 2005), available at
www.du.edu/gsis/hrhw/working/2005/31-kardas-2005.pdf
3 Donnelly, n 1 above, p 29.
4 R Vincent, Human Rights in International Relations (Cambridge, Cambridge University
Press, 1986), pp 11318.
2

(b) the view that there is a cosmopolitan community whose members are
individuals;
(c) the view that the human rights discourse is only a matter of interests
in disguise.
As one can see, this approach reflects the importance of states, individuals
and to a lesser extent that of international organisations.
These attempts to categorise human rights in the context of IR lack two
elements, the first of which concerns the role of structural phenomena:
neither position considers external factors such as migrations, or factors
such as the rise of new forms of capitalism that have repercussions on a
global scale (for example, China and Russia), or the rise of religious fundamentalism. In other words, these are static models and therefore do not
consider some of the key structural aspects of world politics that emerge
partially as a result of what is known as globalisation.
This leads us to the second element, the evolutionary nature of human
rights.
The centrality of human rights in international politics, or better still, in
the foreign policy agenda of states and/or in the political agenda of international organisations, is constantly evolving because of new international
settings. For example, the emergence of actors like the European Union in
international politics has introduced important elements of change in the
dynamics that characterise international relations and, as a result of that,
the role of human rights. One should, in fact, observe that EU relations
with third countries (at least in its wider neighbourhood) are not shaped by
power politics backed by a military threat but rather by economic aspects,
as well as by mechanisms of incentives and conditionality. In the foreign
policy approach promoted by the European Union, there appears to be,
in sum, greater attention paid to role values (and their export). As a result
of this, human rights have emerged, at least on paper, as an element that
has an increasing centrality in the European Unions external policies. In
parallel, its Members States have increasingly attached centrality to human
rights-related questions in the implementation of their national foreign
policies.
One therefore could argue that there is an element of increasing interdependence between human rights and the international system that the
models put forward above do not seem to take fully into consideration.
The three generations of rights constitute an example, as pointed out by
Koen De Feyter5 in Chapter 1, of how the emergence of a certain sensitivity/
attention towards a particular type of right (social and economic rights
during the Cold War and minority rights at the beginning of the 1990s)
See K De Feyter, Chapter 1.

is the result of political conditions which produce change at systemic level
(creation of the two blocs, and later on collapse of the system in the late
1980s/early 1990s with a new impetus both for a proliferation of nation
states and integration processes at regional level).
If we consider the European context, the early 1990s were characterised
by the revival of nationalism(s) that led to the break-up of Yugoslavia and
to the tensions in Balkan Europe and to a lesser extent in Eastern Europe,6
on questions related to minorities and group rights. At the same time, a
parallel process of progressive strengthening of international organisations
such as the Organisation for Security and Cooperation in Europe (OSCE)
and the Council of Europe on the one hand, and also of the European
integration process through the development of the Common Foreign and
Security Policy (as a result of the Maastricht Treaty) on the other, has created conditions for a more active role of such organisations.
The attention paid to the protection of group rights has been increasing
in parallel with the capacity of international organisations to express an
increased subjectivity on the international arena.
Is it therefore possible to draw a link between the inability of states as
actors to deal individually with violations concerning minorities and the
increasing role attached to international organisations in such matters, or
in multilateral contexts?
Generally speaking, the answer to such question is yes. The trend, at
least in the European context, that is emerging is rather clear. Institutions
like the European Court of Human Rights or the International Criminal
Court represent a new additional institutional level to which human rights
matters can be addressed when states fail to deal with violations. In the
same way, institutions like the Council of Europe or EU institutions like the
European Parliament have increasingly been providing an arena where issues
concerning human rights find political visibility, with frequent debate on the
centrality of human rights in the European foreign policy agenda.
Paradoxically, despite the difficulties state actors face in attempts actually to protect collective rights in Eastern Europe, and particularly in the
Balkans, the response to the violations of the rights of minorities has been
the creation of new states where the minorities became the majority.
If we go back to the question of internationalisation of human rights,
what then are the elements of systemic change that are emerging from the
current international context?
(1) States find difficulty in adapting to change. In particular, the evolution of human rights from the second to third generation has shown
6 Problems with the minorities emerged, though not so tragically as in the former
Yugoslavia, not only in Eastern Europe but, eg in the Baltic countries (Russian minority), in
Romania, Moldova and to a lesser extent in Bulgaria.

that states are in general better equipped to protect individual rather
than collective rights.
(2) The revival of the role of international organisations has not been
matched by their capacity to act effectively. One might in fact argue
that states have tried to push international organisations to deal
with the protection of human rights without granting them effective
instruments that can have an actual impact. The actions undertaken
by these organisations are declaratory in essence, as the case of the
condemnation of the Council of Europe of the extraordinary rendition practices7 has demonstrated.
(3) Due also to structural factors (that can be summarised under the label
of globalisation) it is increasingly difficult to separate the domestic
from the international sphere; particularly in the European context,
where economic integration taking place within the framework of the
European Union is speeding up such process, human rights issues are
increasingly becoming transnational in essence and therefore states,
because of their very nature, are the actors that suffer most from
this situation.
In parallel, what we can call a foreign policy paradox is emerging, where a
foreign policy that attaches greater centrality to the promotion or protection of human rights in the world indirectly leads to the reduction of liberties domestically.
In countries such as the United States and the United Kingdom8 (and others such as Italy), the development and implementation of a foreign policy
aimed at fighting terrorism through military intervention in Afghanistan
and Iraq, justified with reference to human rights concerns, has led to the
adoption of national legislation on issues ranging from privacy to measures
concerning policy custody, that reduce the rights of their citizens.
It is also interesting to note how, in the cases of both the United States
and the United Kingdom, it was the violation of group rights that contributed to the construction of the image of the enemy in order to justify
intervention. In Afghanistan, human rights concerns and the oppression of
women were key elements of the discourse aimed at creating the ground
for an intervention; similarly, the violations of human rights towards the
Kurdish minority, carried out in Iraq under the regime of Saddam Hussein,
were portrayed as one of the main reasons (together with the issue of weapons of mass destruction) for taking action.
7 Council of Europe Parliamentary Assembly, Alleged Secret Detentions in Council of

Europe Member States, AS/Jur (2006) 03 Rev, http://assembly.coe.int/
8 See eg Foreign and Commonwealth Office, Human Rights Annual Report 2005, available
at www.fco.gov.uk/

It is therefore paradoxical that an attempt to improve the human rights
situation in countries like Afghanistan or Iraq has indirectly led to more
restrictive measures being introduced in the domestic sphere.
FINAL REMARKS
Human rights are increasingly acquiring centrality as a foreign policy issue.

Such a trend has been strengthened, on the one hand, by the emergence
on the international scene of international organisations and, on the other
hand, by global phenomena that have been producing change in the dynamics that characterised international politics until the end of the Cold War.
Furthermore, the foreign policy paradox outlined in the previous paragraph
can be considered an example of how the domestic and the foreign spheres
are increasingly becoming interdependent.
The very principle that sees the role of the sovereign states as the key
actors capable of promotion/protection of human rights appears to be
weakening, and the traditional categorisations are becoming less and less
capable of effectively framing the evolution or the internationalisation of
human rights as a policy issue. Therefore, the focus of future IR research
should address the development of a new framework of analysis, less
centred on the role of actors and more centred on the dynamic elements
that influence (foreign) policy-making processes and more generally affect
international politics.
SELECT BIBLIOGRAPHY
Donnelly, J, International Human Rights (Westview Press, 1998)
Kardas, S, Human Rights Policy and International Relations: Realist Foundations
Reconsidered, Working Paper No 31 (HRHW, University of Denver, 2005)
Vincent, R, Human Rights in International Relations (Cambridge, Cambridge
15
Human Rights and Development
Policies: Some Critical Issues
regarding the Idea of Community
in the Development Field
FEDERICA TARABUSI AND IVO GIUSEPPE PAZZAGLI*
HUMAN RIGHTS AND HUMAN DEVELOPMENT: A COMPLEX

RELATIONSHIP
Human rights and human development share a common vision and a common
purposeto secure the freedom, well-being and dignity of all people everywhere ...
Human freedom is the common purpose and common motivation of human rights
and human development. The movements for human rights and for human development have had distinct traditions and strategies. United in a broader alliance,
each can bring new energy and strength to the other.1
s the Human Development Report (HDR) 2000,2 published on

behalf of the United Nation Development Programme (UNDP),
shows, the last decade has been characterised by a strong relationship between human rights and human development.
From the outset, human rights and human development have followed
distinct traditions in promoting different strategies for analysis and action:
on the one hand, discussion of human rights has largely been dominated by
political activists, lawyers and philosophers who aim to mobilise political
* Although the reflections and observations in this chapter have been jointly developed by
the authors, it must be noted that the first and second paragraphs of the first section are by
Ivo Giuseppe Pazzagli alone, and that the first and third paragraphs of the second section, as
well as the chapters conclusion, are written by Federica Tarabusi.
1 United Nations Development Programme, Human Development Report 2000 (Oxford
University Press, 2000), pp 12.
2 Ibid. The Human Development Report of 2000 was an attempt to promote the mission of
the United Nations, which is incorporated into the UN Charter and the Universal Declaration
of Human Rights in a more complex manner. The aim was to put forward indications and
strategies for global development that would go beyond the dichotomic vision that accompanied the Cold War years, when civil and political rights were seen as separate from social and
economic rights.
296 Federica Tarabusi and Ivo Giuseppe Pazzagli

pressure, legal reform and ethical questioning; on the other hand, the field
of human development has been dominated by economists, social scientists
and policy-makers whose aim is to promote economic and social progress.
In spite of their originating from different movements, according to the
HDR both human rights and human development seem to follow parallel
paths in both concept and action: the basic idea behind human rights is that
all people have claims to social arrangements that protect them from the
worst abuses and deprivationsand that secure the freedom for a life of
dignity, while human development can be considered a process of enhancing human capabilitiesto expand choices and opportunities.3
Around 1990, the trends emerging in the field of human development
influenced global meetings and international conferences at which different
social and organisational actors were coming together to discuss and share
a new transnational discourse, which we will call the new development
rhetoric. Processes of change in human development policy were the result
of the failures of top-down strategies within a scenario where change was
generalised, both epistemologically and politically.
According to the discourse of the HDR and of UN development strategies, the age of globalisation should be characterised by a strong relationship between human rights and human development, each reinforcing the
other, since the former is seen as the tool for enhancing human capabilities
expanding choice and opportunity and the latter as a means for protecting
and defending human rights.4
However, moving from that assumption, we argue that the relationship
between human rights and development requires profound analysis, for we
consider it to be a unique one, in which the heterogeneous development community (policy-makers, practitioners, academics, officials) takes the protection of human rights for granted, often failing to consider what kinds of
rights are being referred to and peoples representations and interests in the
promotion and defence of their own rights.
In addition, if we consider the contemporaneous debate which reflects
on differences between individual and group rights, it is evident just how
many international aid projects frequently refer to human rights as community rights in ambiguous terms. Indeed, many international agencies
(bilateral and multilateral organisations, NGOs, grassroots associations,
etc) frequently focus their development programmes and goals on attempts
to protect disability rights, womens rights, indigenous rights, etc, constructing holistic and essentialist categories in order to make various social
groups visible as the development beneficiaries.5
3
Ibid p 2.
Ibid.
5 OD Nyamwaya, Three Critical Issues in Community Health Development Projects
in Kenya in RD Grillo and RL Stirrat (eds), Discourses of Development: Anthropological
Perspective (Oxford, Berg, 1997).
4
Human Rights and Development Policies 297

Despite the huge amount of energy currently devoted to generating the
right policy model (such as community participation, where a community
is active in the defence of its own human rights and in promoting its own
development), strangely little attention has been given to investigating what
participation means in terms of practice6 and to exploring the complex
relationship between human rights and development policies.
If the contemporary world is characterised by the growth of complexity
identifiable in the network of transnational flows, intercultural relations
and processes of social change,7 it is thus necessary to take an anthropological view which considers both human rights and human development, not
as static and abstract pictures, but as complex and dynamic realities where
transnational flows of discourses, representations and ideas are negotiated
among different social and institutional actors.
That anthropological investigation, which looks at the relationship between human development and human rights in more complex terms, can
help us to understand how the arena of development shapes different rights
discourses, meanings and concepts, and how different social and organisational actors share and negotiate different representations of community
(as in community rights).
Moreover, significant ethnographic insights can induce us to open up for
discussion some of the critical issues in contemporary transnational discourses, such as, for example, participatory development strategy.
While it is important for us to analyse developers representations and
practices in deconstructing some fixed categories embedded within development policies (such as the idea of community rights and community
participation), we shall also reflect on anthropologists interest in peoples
practices and representations of their own rights.
CHANGING PARADIGMS
Human rights and the field of human development seem to have followed
parallel historical paths. Human rights were defined in the 1950s, following
the 1948 Universal Declaration of Human Rights. The origins of human
development, which arose out of an increasing flow of international aid,
managed by what has been called the development industry, can be dated
back to the same time.
6 N Nelson and S Wright (eds), Power and Participatory Development: Theory and Practice
(London, Intermediate Technology Publications, 1995); Grillo and Stirrat, n 5 above; D Mosse,
Colonial and Contemporary Ideologies of Community Management: the Case of Tank
Irrigation Development in South India (1999) 33 Modern Asian Studies 303.
7 A Appadurai, Disgiunzione e differenza nelleconomia culturale globale in Featherstone
(ed), Cultura globale. Nazionalismo, globalizzazione e modernit (Seam, 1996); U Hannerz,
La complessit culturale: lorganizzazione sociale del significato (Bologna, Il Mulino, 1998);
M Callari Galli (ed), Nomadismi contemporanei: rapporti tra comunit locali, Stati-nazione e
flussi culturali globali (Rimini, Guaraldi, 2004).

When we refer to human development today we are referring not only
to a number of different ideologies but also to specific theories of social and
historical change, as well as certain ways of taking account of both the perspectives of institutions and the representations of human rights developers.
In the history of human development, the original definition of the word
development comes from the oldest existing policy model, known as modernisation theory. The modernisation paradigm reflected an evolutionary
and linear concept of change, based on the idea of progress as a deterministic shift from community to capitalistic society, from rural to urban. Forcing
all societies into a modernisation process based on a linear, static idea of
history, this theory considered development to be a means to become a
modern capitalistic society by replicating Western and Northern models.
From 1949 (when Truman announced that development would be the
primary goal in order to solve the problems of underdeveloped areas of the
globe) to 1970, the term referred particularly to the economic dimension:
conceptualising progress within poor societies as the implementation of
technological and production resources.8
The second definition of the term dates back to the mid-1970s, when development was defined not as a movement in history but an activity of social
programmes9 focusing on quality of life and reduction of poverty. The
meaning of the word development thus underwent a shift, from the historical to the moral.
As Ferguson stresses:
Liberals and development bureaucrats regularly conflate these two meanings,
implicitly equating modernisation with the elimination or alleviation of poverty.10
Both definitions of development can be considered part of the same liberal

approach, which considered the development apparatus, composed of different kinds of aid agencies, to be a practical tool for the solution of global
problems.11 As post-structuralist scholars stress, this is the maximum expression of the technocratic and bureaucratic dimension of development.
In contrast with this ethnocentric manner of conceptualising development, some radical critiques, associated with neo-Marxism and dependency
theory, understand development to be an imperialistic and capitalistic force
of domination spreading out from the centre (Western society) to the periphery (Southern and poor society). In this approach, which sees development as exploitation processes that incorporate new territories into the
world system,12 capitalism is not the reason for development but an obstacle
8 J Ferguson, Expectation of Modernity: Myths and Meanings of Urban Life on the

Zambian Copperbelt (Berkeley/London, University of California Press, 1999).
9 Ibid.
10 Ibid p 15.
11 Ibid.
12 I Wallerstein, Alla scoperta del sistema mondo (Roma, Manifestolibri, 2003).

to it. The main issue for the neo-Marxist school is how this apparatus
produces historical mechanisms of dependency between the First and Third
Worlds.
Transnational processes of cultural change contributed to the creation of
a new understanding and awareness of development. An important contribution to the decolonising of development came from anthropologys
self-critique during the 1980s13 as an epistemological and methodological
inside enquiry.
A new type of anthropologist thus emerged, defining themselves as anthropologists of development, as opposed to anthropologists who uncritically
investigate development programmes. These new anthropologists conceive
of development in terms of discourse,14 making it possible to maintain the
focus on domination by developers.
Moving on from Foucaults insights into colonial and post-colonial situations, an anthropology of development has emerged from scholars such
as Edward Said, VY Mudimbe and Homi Bhabha, among others, who have
carried out creative studies and have introduced new ways of thinking about
representations of the developing world.
As Escobar stresses:
More recently the development of new tools of analysis in gestation since the
late 1960s but the application of which became widespread only during the
1980s, has made possible analyses of this type of colonosation of reality which
seek to account for this very fact: how certain representations become dominant
and shape indelibly the ways in which reality is imagined and acted upon ... the
general questions some of this work raised serve as markers for the analysis of
development as a regime of representation.15 (emphasis added)
Escobars analysis of development as a historically produced discourse

which represents otherness as the underdeveloped, reflects on how developers frame reality in accordance with Western European categories.
Similarly to Escobars work, both Hobarts insights into the different
languages of development and Fergusons work in Lesotho analysing the
development apparatus as an anti-politics machine, focus on the institutions, discourses, practices and representations of developers.
With modernity now seen as a world view that has shaped development
practices and representations over a long period, the new issue for critique
13 J Clifford and GE Marcus (eds) , Writing Culture: The Poetics and Politics of Ethnography
(Berkely, CA, University of Californis Press, 1986).
14 M Foucault, Larcheologia del sapere (Milano, Rizzoli, 1971); A Escobar, Anthropology
and the Development Encounter: the Making and the Marketing of Development Anthropology (1991) 18 American Ethnologist 658; R Apthorpe and D Gasper (eds), Arguing Development Policy: Frames and Discourses (London, Frank Cass, 1996); Grillo and Stirrat, n 5 above.
15 A Escobar, Encountering Development: the Making and Unmaking of the Third World
(Princeton, NJ, Princeton University Press, 1995).

anthropology is to deconstruct a history based on illusions and the myth of
modernisation.16
Community Participation: a Transnational Discourse
Post-modernist approaches are historically situated within a changing scenario of strong critiques of the top-down strategies and traditional technocratic aid policies that are culturally embedded in bureaucratic development
institutions such as the World Bank and the American governmental agency
USAID.
To conceive of development as a cultural, political and social process means
to reflect upon previous intervention failures and the most pervasive effects
of development, moving from a new, more complex view of contemporary
change processes and transnational dynamics.
In the political space created by shifting interdependencies among political
actors, by the decline of the state, by new local, regional and transnational
collective actions and flows, a key role is being played by a growing numbers of new groups, identified as non-governmental organisations (NGOs),
in promoting human rights and social justice, implementing grassroots
development, pursuing civil society involvement and many other issues
formerly ignored by governmental agencies.17
Issues such as community participation, sustainable development, or empowerment based on bottom-up approaches are shaping new contemporary
transnational discourses that stress the importance of giving a political voice
to all people and of considering the local community as the main actor in its
own development.
An anthropological view of new transnational discourse phenomena
shows how the historically parallel movements in the fields of human rights
and human development need to be conceived of in more complex terms.
Despite growing interest in encouraging civil societies to participate in
their own development and rights, anthropologists still need to take account
of a number of linked, unresolved issues in the fields of both human rights
and development.
While the myth of development was gradually unfolding, the translation
of the Universal Declaration of Human Rights from international law into
everyday practices similarly highlighted the illusion of combining a global
institutional activity with the diversity of the worlds local realities: technologies alone cannot guarantee development as laws alone cannot guarantee
human rights.18 As the case described below regarding the drafting of the
16
Ibid; Ferguson, n 8 above.

WF Fisher, Doing Good? The Politics and Antipolitics of NGO Practices (1997) 26
Annual Review of Anthropology 439.
18 UNDP, Human Development Report 2000, n 1 above.
17

Declaration of Indigenous Peoples shows, participation may frame transnational institutions discourses, but some critical issues remain unresolved.19
In November 1995, the draft United Nations Declaration on the Rights
of Indigenous Peoples was subject to a preliminary political reading by a
Working Group of the Commission of Human Rights. While the adoption
of a declaration on the rights of indigenous people was one of the goals of
the International Decade of the Worlds Indigenous Peoples (19952005),
member states had also committed to promote and protect the rights of
indigenous peoples beyond the traditional meaning of human rights.20
Contradiction and ambiguity are easily seen when we look closely at the
indigenous participation issue embedded in UN procedures for preparing
the declaration.
Indigenous peoples have not always enjoyed unrestricted access to meetings of the Working Group of the Commission of Human Rights. Even
though the chair stressed that the draft declaration should truly reflect the
values, beliefs, aspirations of the people concerned, the Working Group did
not admit non-governmental organisations unless they had obtained consultative status with the Economic and Social Council, a status achieved by
only 12 indigenous organisations in the world.21 Considering that 10 of those
organisations represent indigenous peoples of the North, there were only
two that could speak on behalf of indigenous peoples of the South, where
an estimated 90 per cent of the worlds indigenous people live. Indeed, even
accredited NGOs were not permitted to submit formal proposals at drafting sessions, where decisions were taken by the participating governments
by consensus.
An anthropological approach would take into account the meaning of
the term indigenous in the representations of each of the member states.
Contrasting and opposite definitions of the term indigenous highlight the
representations and prejudices of different actors in relation to minorities
and to the North-South relationship.
According to some representatives of some states, indigenous peoples
do not exist in countries where the original inhabitants were not put on
reservations but lived in harmony together in one society; according to
another view, indigenous means a minority claiming special rights or is
critically understood as the result of European countries pursuit of colonial
policies in other parts of the world. Member states representatives argue
in favour of these various different perceptions resulting in contrasting
proposals being put forward regarding the application of indigenous rights.
For example, Canada, New Zealand and France restate the universality of
19 RL Barsh, Indigenous People and the UN Commission on Human Rights: a Case of the
Immovable Object and the Irresistible Force (1996) 18 Human Rights Quarterly 782.
20 Ibid.
21 Ibid.

human rights, strongly opposing Asian representatives hypotheses regarding regionalisation of the application of the draft Declaration.
Different indigenous representations related to different world views lead
to different ways of understanding both the nature of rights and the goals
of the Declaration.
For example, Latin-American states take account of the political dimension of the term indigenous, emphasising indigenous action and effective
participation in national political affairs. On the other hand, the United
States argues that the sole function of the Declaration should be to fight
discrimination based on indigenous origins and to guarantee full equality
before the law. Similarly, some states argue for a collective dimension of
indigenous rights which should be subordinate to individual rights.
In contrast, others stress that collective and individual rights should be
balanced without creating a fixed hierarchy: it is an ethnocentric presumption that individual and collective rights are mutually exclusive.22
These contrasting representations of indigenous rights are related to
critical issues regarding indigenous self-determination and the relationship
between state and community. According to a conservative viewpoint, indigenous communities are a bounded entity within a state, while from a progressive viewpoint, indigenous equality means giving such communities a
political voice in national and foreign affairs, for example by transferring
the management of resources from the state to the community.
Thus, it is not difficult to see how the Declaration of Indigeneous Peoples
has become an arena in which different representations, understandings
and meanings of human rights, as well as community rights, are negotiated
among different social and institutional actors.
RETHINKING COMMUNITY RIGHTS: SOME ETHNOGRAPHIC
INSIGHTS
Anthropological analysis shows how, within development discourses, the

word community invokes various representations of social life.23
Nyamwayas fieldwork in a community health development project in Kenya
in the 1990s shows how modernisation theory continues to shape developers
practices and representations from behind a mask of participation.24
As in the classical view, community (seen within an evolutionary theory
of social change), is here presented as a bounded, simple, interpersonal field
of action that contrasts with aspects that characterise modern societies,
22
Ibid.
Mosse, n 6 above.
24 Nyamwaya reviews international interventions and governmental initiatives realised between
1980 and 1993, showing how participation began to play an increasingly central role in development policies.
23

such as bureaucracy, thus distinguishing developers from those who are
part of community.25
The community thus needs to be modernised and development activities
are planned in terms of the future, in order to improve the communitys
future situation.
In contrast with developers discourses advocating rights to health, the
anthropologist Nyamwaya puts the Kenyan peoples right to choose first.
If the ambiguous concepts of participation and empowerment are based on
the implicit assumption that communities can only develop once they have
assimilated specialised technical and material inputs from outside(emphasis
added),26 can the role played by people in defending their rights to health
be considered a political one?
Ethnographic accounts seem to show not only how empowerment often
becomes a means for achieving development goals, but also how the right
to health discourse assumes a very dangerous role in politically legitimising several kinds of Western practices that are culturally and institutionally
situated or embedded. As Nyamwaya stresses:
While in theory communities are supposed to play a leading role in the healthdevelopment process, that process is still largely controlled by government and
NGO development experts who do not allow communities to play major roles.27
Thus, participation takes on an instrumental meaning, placing individuals

in the position of beneficiaries within the development apparatus rather
than in a role that is politically decisive for defining and implementing intervention. Moreover, it is expressed in the language of developers: an elitist
set of experts, bureaucrats, project-leaders, NGO managers and researchers which, although heterogeneous, nevertheless belongs to the world of
expertise and technology.
While we should examine developers representations and health practices, we also need to reflect upon how aid interventions are based on the
holistic idea of the homogenisation of communities, whereby social categories are constructed and it is assumed that each group is a bounded entity
with shared characteristics, needs, representations and expectations:
In my view, much effort is spent on mobilising or constituting social groups
because projects are planned without due regard to the heterogeneity of communities and their felt needs. Such efforts are expended because development
agencies and the government wish to have visible objects in development interventions. The quest for visibility leads to the construction of social groups which
may exist only in the project personnels imagination and reports. Visible social
25
Mosse, n 6 above.
OD Nyamwaya, Three Critical Issues in Community Health Development Projects in
Kenya in Grillo and Stirrat, n 5 above.
27 Ibid p 184.
26

groups can be controlled, and this seems to be the hidden agenda of development
agencies.28
Moreover, contemporary ethnographies show how human rights cannot be

understood as something fixed and static but must be conceived within a
dynamic and complex local-global system.
David Mosses ethnography investigates rights to water and control of
access to natural resources in a rural development project in Tamil Nadu
(India). He analyses how the tank irrigation system (an indigenous form of
irrigation in a semi-dry zone of Southern India) becomes a space in which
developers fixed representations of community rights emerge.
Here, developers policies mask a different idea of community which
embodies not so much a theory of change (towards modernisation) but
rather a theory of stasis. Southern villages and indigenous communities are
often characterised as being timeless and unchanging, a view which ignores
the fact that the indigenous system is equally embedded in processes of
social and historical change.29
Moving on from considering how intensive government think-tank modernisation programmes are justified by reference to traditional community-based mechanisms, Mosse shows how an idea of the past embodies
distinctly the modern principles of gender and class equality, participation,
democracy.30
After the myth of modernity, the focus of rural and environmental discourses started to shift toward the narrative of tradition. The notion of community became an idealised counterpart to the damaging forces of modern
change and development, providing a locus for an ideological critique of the
modernising strategies of the centralised state and the dominance of Western
technology over indigenous perspectives.31 Rural development policies produce narratives and myths of tradition and community management and
shape their practices, moving on from an ahistorical, static idea of community rights and using tradition to legitimise Western activities.
According to ethnographic accounts, tank irrigation represents not only
a technology and a resource but also a system of social relations which
defines sets of rights, obligations, entitlements within the villages, and both
between villages and between villages and state.32
As the British anthropologist argues: The unchanging traditional community management of the traditional tank is largely fictional.33
Historical and cultural analysis of indigenous systems, from the pre-colonial
definitions of community rights and access to water to contemporary state
28
29
30
31
32
33
Ibid p 189.
Mosse, n 6 above.
Ibid p 146.
Ibid.
Mosse, n 6 above.
Ibid p 149.

policies, shows how rights to water have to be considered embedded in a
changing set of social relations and in wider political transformations.
Pre-colonial times were characterised by unequal access to resources within
and between villages, where rights and shares were defined by caste and kingroup membership. So while dominant castes and kinsmen had privileged
access to tank water, other rights and obligations of caste groups were only
services-related. Mosse provides a complex analysis which takes into account
all levels (village, regional and state links), showing how rights and rules rested
on political authority determined by vertical relations, from village headmen
through regional chiefs to the king.34 Under the colonial system, British rules
isolated Tamil villages from previous political linkages. In fact, private property distinguished rights to land from rights over public resources (ownership
of the colonial state), thus dismantling the indigenous political system.
The ethnohistorical view shows how the nature of the rights to village
tanks changed from politically and socially defined shares (defined by
reciprocal caste-based relationships between landed patrons and labouring
clients) to private landholding title based on market relations and loosely
tied to caste identity. Caste-based structures of rights and obligations were
replaced by market relations. Today, the new participatory institutions are
unable to resolve conflict over water rights and continue to protect the interests of dominant caste groups.
As David Mosses fieldwork shows, there is a strong relationship between
participatory methods and the social and power dynamics of a community
where the elites often speak on behalf of the community.35 But he also shows
how anthropology is able to understand peoples practices of their own rights
by analysing village, regional, state and transnational levels and linkages.
CONCLUSION
First, these ethnographic insights show how participation projects often

mask an ethnocentric and essentialistic view and holistic ideas of community, without taking into account local reality as embedded in social and
power relations. Secondly, an anthropological contribution is needed to
explore peoples practices and understanding of their own rights.
In truthas contemporary ethnographers of development stressit is
the very use of the term community that needs to be questioned,36 in situations where local people do not identify with an ethnocentric concept,
34
Ibid p 145.
D Mosse Authority, Gender and Knowledge: Theoretical Reflections on the Practice of
Participatory Rural Appraisal (1994) 25(3) Development and Change 497526.
36 Nelson and Wright, n 6 above; C Giordano, Dal punto di vista del progetto. Dinamiche
etnografiche in un contesto di sviluppo (Baluchistan settentrionale) in U Fabietti (ed), Etnografia
e culture. Antropologi, informatori e politiche dellidentit (Roma, Carocci, 1998).
35

structured around the tradition/modernity dualism, itself linked to the jargon of planners. As Giordano remarks:
The concept of community can be said to be of the type that is near to experience for the project, but the same cannot be said for a Pashtun population in
Baluchistan, organised according to criteria of kinship and solidarity constituting
socio-territorial entities that are not described by the word community.37
In conclusion, the issue of community participation links rights discourses38

to development discourse (based on liberal or populistic rhetorics) in legitimising several kinds of different institutional and organisational practices
which usually negotiate between opposing interests and contrasting perceptions.39 Therefore, analysis of the relationship between the rhetoric of
community rights participation (in health, education, water, etc) and the
practices of development agencies is not only one of the main issues in contemporary aid anthropology; it also represents an excellent opportunity to
engage politically with human rights issues in more complex terms.
SELECT BIBLIOGRAPHY
Appadurai, A, Disgiunzione e differenza nelleconomia culturale globale in M Featherstone (ed), Cultura globale. Nazionalismo, globalizzazione e modernit (Seam, 1996)
Apthorpe, R and Gasper, D (eds), Arguing Development Policy: Frames and Discourses (London, Frank Cass, 1996)
Barsh, RL, Indigenous People and the UN Commission on Human Rights: a Case
of the Immovable Object and the Irresistible Force (1996) 18 Human Rights
Quarterly 782
Callari Galli, M (ed), Nomadismi contemporanei: rapporti tra comunit locali,
Statinazione e flussi culturali globali (Rimini, Guaraldi, 2004)
Clifford, J and Marcus, GE (eds), Writing Culture: The Poetics and Politics of
Ethnography (Berkeley, CA, University of California Press, 1986)
Cooke, B and Kothari, U (eds), Participation: the New Tyranny? (London, Zed
Books, 2001)
Escobar, A, Anthropology and the Development Encounter: the Making and the
Marketing of Development Anthropology (1991) 18 American Ethnologist 658
, Encountering Development: the Making and Unmaking of the Third World
(Princeton, NJ, Princeton University Press, 1995)
Ferguson, J, The Anti-politics Machine: Development, Depoliticization and Bureaucratic Power in Lesotho (Minneapolis, University of Minnesota Press, 1994)
, Expectation of Modernity: Myths and Meanings of Urban Life on the
Zambian Copperbelt (Berkeley/London, University of California Press, 1999)
37
Giordano, n 36 above, p 88.

R Thompson, Ethnic Minorities and the Case for Collective Rights (1997) 99 American
Anthropology 786.
39 D Mosse, Is Good Policy Unimplementable? Reflections on the Ethnography of Aid
Policy and Practice (2004) 35(4) Development and Change 63971.
38

Fisher, WF, Doing Good? The Politics and Antipolitics of NGO Practices (1997)
26 Annual Review of Anthropology 439
Foucault, M, Larcheologia del sapere (Milano, Rizzoli, 1971)
Gardner, K and Lewis, D, Anthropology, Development and the Post-modern Challenge
Giordano, C, Dal punto di vista del progetto. Dinamiche etnografiche in un
contesto di sviluppo (Baluchistan settentrionale) in U Fabietti (ed), Etnografia e
culture. Antropologi, informatori e politiche dellidentit (Roma, Carocci, 1998)
Grillo, RD and Stirrat, RL (eds), Discourses of Development: Anthropological
Perspectives (Oxford, Berg, 1997)
Hannerz, U, La complessit culturale: lorganizzazione sociale del significato
(Bologna, Il Mulino, 1998)
Hobart, M, An Anthropological Critique of Development (London, Routledge,
1993)
Marcus, G and Fisher, M, Antropologia come critica culturale (Roma, Meltemi,
1998)
Mosse, D, Authority, Gender and Knowledge: Theoretical Reflections on the
Practice of Participatory Rural Appraisal (1994) 25(3) Development and Change
497526
, Colonial and Contemporary Ideologies of Community Management: the
Case of Tank Irrigation Development in South India (1999) 33 Modern Asian
Studies 303
, Is Good Policy is Unimplementable? Reflections on the Ethnography of Aid
Policy and Practice (2004) 35(4) Development and Change 63971
Nelson, N and Wright, S (eds), Power and Participatory Development: Theory and
Practice (London, Intermediate Technology Publications, 1995)
Nyamwaya, OD, Three Critical Issues in Community Health Development Projects in Kenya in RD Grillo and RL Stirrat (eds), Discourses of Development:
Anthropological Perspective (Oxford, Berg, 1997)
Thompson, R, Ethnic Minorities and the Case for Collective Rights (1997) 99
American Anthropology 786
United Nations Development Programme, Human Development Report 2000
(Oxford University Press, 2000)
Wallerstein, I, Alla scoperta del sistema mondo (Roma, Manifestolibri, 2003)
Index
A
Adopt A Right, 198, 199, 200, 202,
203, 204
Adoption
right of homosexuals, 258
Alexy, R, 167, 169, 170
Anthropology
concern for human rights, 72
cultural dynamics of, 78, 79
general orientations of, 71
relativism, 74
universalism, 74, 75
B
Barnett, CR
on cultural differences, 72
Barth Effect, 60
Baxi
on adoption of universal declaration, 26
Benhabib
dual track approach, 127
on feminism, 120, 121, 125, 126
C
Cervantes, 12
Children
Adopt A Right, Potentials and
Contradictions, 199, 204
Adoption rights of homosexuals, 258
ethnographic approach to the rights of,
194, 195, 196, 197.
Citizenship
Contextualization, 208, 209, 210, 211
Marshalls view, 53, 54, 208
Civil Rights
legal equality, 53
Comte, Auguste
law of three stages, 50
Convention on the Elimination of Racial
Discrimination (CERD), 1965
first treaty against discrimination,
139, 140
Convention on the Elimination of All Forms
of Discrimination Against Women
Reservation dialogue, 108, 109, 110
Article 5, 111, 114
Article 16, 111, 113, 114, 116, 117
Article 2, 108, 112
Article 9, 114
Article 23, 115

Convention on Prevention and Punishment
of Crime of Genocide, 1948
Article 2, 22
Convention on the Rights of the Child, 115
Culture
Nuances of, 184
D
Davidson, D, 161, 162, 170
De Tocquevile
on individualisation, 51
Doctrine(s) of universal human rights
prerequisites, 57
Doughty PL, 72
Durkheim
civil law, 50
organic solidarity, 50
penal law, 50
Dworkin, R, 162, 169, 170
E
Emigration
and human rights, 81, 82
European Convention on Human Rights
adoption by homosexual, 258
article 11, 259
article 12, 258
article 13, 258
article 14, 255, 256, 258
article 8, 257, 258
article 9, 258
discrimination on basis of language, 256
discrimination on ground of sex, 257
homosexuality, 257
protection of groups, 255, 256
transexuality, 258
European Charter for Regional/Minority
Languages
article 1, 262
European Framework Convention for
Protection of National Minorities, 262, 263
European Charter of Fundamental Rights
article 7, 264
article 10, 264
article 12, 264
article 20, 264
article 21, 264
article 22, 264
310 Index
article 25, 264
article 26, 264
article 27, 264
article 28, 264
article 38, 264
European Court of Human Rights
applications to
admissibility criteria, 249251
protection of minority rights, 252254
European Social Charter
protection of groups, 261, 262
European Union
prohibition of discrimination, 263, 265,
266
F
Federal Union of European Nationalities, 97
Feminism, 120
Freeman, 26
G
Gemeinschaft, 42
Gesellschaft, 43
Genocide
legal definitions of, 22
prohibition of, 22, 23
Gender Equality
Benhabib
multicultural arrangement, 120, 121,
125, 126
Leyla Sahib case, 123, 124
Prostitution, 186, 187, 188, 189, 190
sex discrimination, 257
Gomez
methodology of, 21
Group Rights
collective solidarity rights, 19
immigrant minorities
rights of 61, 62
meaning of, 19
non discrimination, 139, 140
protection of group, 247, 248
protection of individuals belonging to
group, 248, 249
protection of, under European social
charter, 261, 262
right against discrimination, 256, 257
right to private life, 257, 258
right to self-determination, 19
rights of persons belonging to minorities,
141
sociological perspective of, 45
H
Habermas, J, 120, 128, 129, 146, 147
Herskovits, Melville, 71
Homosexual
right to adopt, 258
right to private life, 257
Human Rights
Adopt a Right, 199204
anthrapological approach, 5
building support for, 65
community rights, 302305
compliance problems, 20
conditions of normativity, 148, 149, 150
emigration, 81, 82
ethnographic approach, 194, 195, 196, 197
ethnographic study, 85
Grootboom decision, 24
human development, 297
impact of litigation, 23
in educational contexts, 194
individual rights, 2
individualism and private conceptions of
rights, 152, 153, 154
intercultural approach, 83, 84
interdisciplinarity, 13
interdisciplinary approach ,need for, 4
internationalisation of, 284
multidisciplinary, 13
non individualism 147
philosophical justifications of, 26
international relations, 289293
pluralistic approach, 82, 83
politological approach, 5
process of legalization 17
public conceptions of rights, 155
realisation process, 5
regional systems of protection, 279284
role of judges, 18
sociological approach, 5
sociological perspective, 46
universality of, 6
violation
assessment of, 23
Human Actions
approach to, 46
cultural view, 46, 47, 48
structural view, 46, 47, 48, 49
I
International law
interpretations of treaties, 29
Inter American Convention on Human
Rights
Article 29, 32
International Covenant on Civil and
Political Rights
article 2(1), 115
article 3, 115
article 6, 31
article 26, 122
article 27, 122, 141
Index 311
International Convention on Rights of
Persons with Disabilities, 16
International Human Rights Law
universal system of human rights
promotion, 275279
International relations theory
insights of, 20, 21
International Covenant on Economic, Social
& Cultural Rights, 133
K
Kant
principle of universalisation, 167, 168, 169
Klabber
interdisciplinarity, 13
Klein
objectives of interdisciplinarity, 13
Kripke, S, 161, 171
M
Messer, E
on anthropology, 72
Migration
anthropological approach, 207211
migrating communities,
disaggregation, 211213
transnational migration & sedentarist
policies, 217219
Minority Rights
building support for, 65
EctHR, 252254
European Bureau for Lesser-Used
Languages, 100
Europe, development of, 89, 90, 91
Federal Union of European Nationalities,
97, 98
historical perspective
Europe, development in, 93, 94, 95
immigrant and national minorities
distinctions between, 64
Non Governmental Organisations, 96
normative support, 227, 228, 229, 235
OSCE, 254, 255
rights of immigrant minorities, 62
Russian federation, 223, 224, 225
social psychological theories, 225227
sociological perspective, 45
territorialisations, 237
N
Nowak
process of legislation of human rights, 17
O
OByrne
human rights analysis, 22
Organisation for Security & Cooperation

in Europe
protection of minorities, 254, 255
P
Prostitution
rights of women, 175181
R
Rainer Baubock
ethnicisation, 61
Ralston Saul, 12
Reese, 12
Research
Action Project 198
Adopt a Right, 198204
Falk, Richard, 15
Right(s)
civil, 53
individual vs collective rights, 246
immigrant minorities, 61, 62
political, 52, 53
social, 53
women
prostitution, 175181
Right(s) to
adoption by homosexual, 258
language equality, 256
life, 30, 31
livelihood, 30
private life
homosexuals, 257
property, 31, 32, 34
sex equality, 257
S
Sociology
critical science, 44
general science, 44
multidisciplinary science, 44
Solidarity
collective, 19
organic, 50
Social Rights
equality of opportunity, 53
Stavenhagen, Rodolfo
tension between human rights and group
rights, 33
T
Theories of
international relations, 20
practice, 159
self categorization, 226
social identity, 226
312 Index
Treaties
Interpretations, 29
interpretative methods
ordinary meaning, 29
special meaning, 30
telelogical method, 30
Terrorism
explosion of, 76, 77
U
Universal Declaration of Human Rights
article 1, 132
article 2, 132
Article 28, 2
binding nature of, 15
codification process, 36
criticism of, 59
minority rights, 34
multiculturalism, 134
universalism, 131, 132, 137
universalisation, principles of, 168, 169
V
Vienna Convention on Law of Treaties,
29, 30
W
Weber, Max
kadi law, 50
Williamson, T, 152, 160, 171

Pavlakos, G. and de Feyer, K., The Tension Between Group Rights and Human Rights

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Pavlakos, G. and de Feyer, K., The Tension Between Group Rights and Human Rights

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THE TENSION BETWEEN GROUP RIGHTS

AND HUMAN RIGHTS

Human Rights Law in Perspective

Gender, Culture and Human Rights

To Han and Estelle

The Tension Between

OXFORD AND PORTLAND, OREGON

Published in North America (US and Canada) by

The editors and contributors severally 2008

Hart Publishing, 16C Worcester Place, OX1 2JW

British Library Cataloguing in Publication Data

Typeset by Compuscript Ltd, Shannon

xii List of Contributors

Introduction: Group Rights and

here was a time when the narrative of international action for

Introduction: Group Rights and Human Rights 3

Introduction: Group Rights and Human Rights 5

Introduction: Group Rights and Human Rights 7

The Multidisciplinary Approach

KNOWLEDGE THROUGH DISCIPLINE

n order to master knowledge, science approaches disciplines in terms

In Defence of a Multidisciplinary Approach to Human Rights 13

answer complex questions;

In theory, a clear distinction can be drawn between interdisciplinarity and

9 J Klabbers, The Relative Autonomy of International Law or the Forgotten Politics of

In Defence of a Multidisciplinary Approach to Human Rights 15

The inclusion of references to human rights in the UN Charter and the

In Defence of a Multidisciplinary Approach to Human Rights 17

Such a test can easily be applied to a situation involving a tension between

In Defence of a Multidisciplinary Approach to Human Rights 19

Explaining the Limits of Law

A real understanding of compliance problems in international human rights

Bank and Lehmkuhl, n 2 above, p 6.

In Defence of a Multidisciplinary Approach to Human Rights 21

Insights from international relations theory are essential in order to assess

Sociologists are therefore also able to offer explanations of why human

33 M Gomez, Human Rights in Cuba, El Salvador, and Nicaragua: a Sociological Perspective

In Defence of a Multidisciplinary Approach to Human Rights 23

45 See eg Lubicon Lake Band v Canada, UN Human Rights Committee, Communication

In Defence of a Multidisciplinary Approach to Human Rights 25

M Freeman, Human Rights (Cambridge, Polity Press, 2002), p 42.

In Defence of a Multidisciplinary Approach to Human Rights 27

In the increasingly complex UN human rights architecture, very little

Woodiwiss, n 32 above, p 33.

In Defence of a Multidisciplinary Approach to Human Rights 29

In Defence of a Multidisciplinary Approach to Human Rights 31

For the group under consideration (nearly half of Bombays population)

In the Courts view, Article 29(b) prohibits a restrictive interpretation68

American Convention on Human Rights, 22 November 1969, Art 29(b).

In Defence of a Multidisciplinary Approach to Human Rights 33

The anthropologists agreed that the community considered the land as

19 Arizona Journal of International and Comparative Law 171.

In Defence of a Multidisciplinary Approach to Human Rights 35

In conclusion, a multidisciplinary approach is essential to human rights

78 M Goodale, Introduction to Anthroplogy and Human Rights in a New Key (2006)

In Defence of a Multidisciplinary Approach to Human Rights 37

Group rights are here understood as rights of (any) minorities.

THE SOCIOLOGIC OF HUMAN RIGHTS AND MINORITY RIGHTS

Sociology, as a style of thought first, and as an academic discipline only

3 J Habermas, Die Moderneein unvollendetes Projekt in W Hudson and W van

Sociological Instrumentality of Human and Minority Rights 43

Sociological Instrumentality of Human and Minority Rights 45

14 P Bourdieu, Science of Science and Reflexivity (Chicago, University of Chicago Press,

Sociological Instrumentality of Human and Minority Rights 47