Otto, Diane --- "Rethinking Universals: Opening Transformative Possibilites in International Human Rights Law" [1997] AUYrBkIntLaw 1; (1997) 18 Australian Year Book of International Law 1
[*] Senior Lecturer in Law, The University of Melbourne, Australia. BA Adelaide University (1973); LLB Melbourne University (1992); LLM Melbourne University (1997); currently JSD candidate Columbia Law School. I would like to thank Rosemary Hunter, Wayne Morgan and Sarah Pritchard for their thoughtful support for this project. This article is the second in a series of three interrelated articles. The other two articles are forthcoming as follows: “Everything Is Dangerous: Some Poststructural Tools for Rethinking the Universal Knowledge Claims of Human Rights Law” (1998) Australian Journal of Human Rights; “Rethinking the ‘Universality’ of Human Rights Law” (1997) 29 Columbia Human Rights Law Review 1.
[1] Charter of the United Nations (UN Charter) adopted 26 June 1945, entered into force 24 October 1945. A total of 8 references to human rights appear. See preamble 2nd para, Articles 1(3) 13(1)(b) 55(c) 56, 62(2) 68, 76.
[2] Leary VA, “The Effect of Western Perspectives on International Human Rights” in An-Na`im AA and Deng FM eds, Human Rights In Africa: Cross-Cultural Perspectives (1990) p 15 at 18–19. In Leary’s assessment, the proposal by the US to include a reference to freedom of religion was abandoned when Japan suggested that guarantees of the equal treatment of all races, including non-discriminatory treatment of aliens, should also be included. However, the Covenant of the League of Nations (1920) did establish the Mandate system (Article 22) and envisage the establishment of the International Labour Organisation (ILO) which were important antecedents to an international human rights regime.
[3] Henkin L, International Law: Politics and Values (1995) pp 169–173; Buergenthal T, International Human Rights in a Nutshell (1995) pp 2–18.
[4] Henkin L, “Introduction” in Henkin L ed, The International Bill of Rights: The Covenant on Civil and Political Rights (1981) p 1 at 4.
[5] The United States of America, France, the United Kingdom, the Union of Soviet Socialist Republics and China.
[6] “Address of the President of the United States”, 6 January 1941, Congressional Record (1941) vol 87, pp 46–47, cited in Leary, “The Effect of Western Perspectives on International Human Rights”, n 2 above, p 19.
[7] By “transformative” I mean something more fundamental than reform of the current system. Poststructural feminist Drucilla Cornell, Transformations: Collective Imagination and Sexual Difference (1993) p 1, describes transformative change as:
change radical enough to so dramatically restructure any system — political, legal or social — that the “identity” of the system is itself altered. The second meaning, defined as broadly as possible, turns us to the question of what kind of individuals we would have to become in order to open ourselves to new worlds.
[8] Modernity has its origins in eighteenth century Enlightenment thinking and is the dominant philosophical production of present day “Europe” which extends beyond the West to include post-colonial elites who have embraced European knowledges and institutions as their own. Modernity is described by Margaret Davies, Asking the Law Question (1994) p 221, as “the attempt to find absolute grounds for knowledge, to discover abstract, transcendent principles which would be the foundation for all philosophical questioning”.
[9] The terms “poststructuralism” and “postmodernism” are often used interchangeably and there is considerable overlap between the two projects in their fundamental challenge of the certainties of modern knowledges. Carol Smart, Law, Crime and Sexuality: Essays in Feminism (1995) pp 7–9, distinguishes poststructuralism as being more concerned with the local, embodied, situated construction of knowledge while postmodernism is a critique of the epistemological foundations of modernity. Like Smart, I use the term poststructuralism to indicate my interest in the local mechanisms of power, how concrete bodies are invested with particular meanings and subjectivities, and how these effects of power can be resisted.
[10] Foucault M, “Two Lectures” in Gordon C ed, Power/Knowledge (1980) p 78 at 81. Foucault describes genealogical investigations as “anti-sciences” rather than empirical investigations which entertain the claims to attention of local, discontinuous, disqualified, illegitimate knowledges against the claims of a unitary body of theory which would filter, hierarchise and order them in the name of some true knowledge and some arbitrary idea of what constitutes a science and its objects.
[11] Gordon C, “Governmental Rationality: An Introduction” in Burchell G, Gordon C and Miller P eds, The Foucault Effect: Studies in Governmentality (1991) p 1 at 46. Gordon explains that Foucault considers nothing to be intrinsically “evil” but that everything has the potential for evil within it and is therefore “dangerous”.
[12] Universal Declaration of Human Rights (UDHR) adopted 10 December 1948, GA Res 217 A (III) UN Doc A/810 at 71 (1948). It was adopted by 48 votes, with eight abstentions and none against. The abstaining States were Saudi Arabia, South Africa, and 6 members of the Eastern European bloc: Belarus, Czechoslovakia, Poland, Ukraine, Union of Soviet Socialist Republics (USSR) and Yugoslavia.
[13] UN Charter, n 1 above, preamble, reaffirms faith “in fundamental human rights [and] in the dignity and worth of the human person”.
[14] International Convention on the Elimination of All Forms of Racial Discrimination (CERD) adopted 21 December 1965, entered into force 4 January 1969, (GA Res 20/2106A (xx)) 660 UNTS 195, preamble, “affirms the necessity of speedily eliminating racial discrimination ... and of securing understanding of and respect for the dignity of the human person”; Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) adopted 18 December 1979, entered into force 3 September 1981, GA Res 34/180, UN Doc A/34/46 at 193, preamble, “discrimination against women violates the principles of equality of rights and respect for human dignity”; text also available (1980) 19 ILM 33; Convention on the Rights of the Child (CRC) adopted 20 November 1989, entered into force 2 September 1990, GA Res 44/25, UN Doc A/44/49 at 166, preamble, “recognition of the inherent dignity ... of all members of the human family is the foundation of freedom, justice and peace in the world”; text also available (1989) 28 ILM 1448; African Charter on Human and Peoples’ Rights, adopted 27 June 1981, entered into force 21 October 1986, OAU Doc CAB/LEG/67/3 Rev 5, preamble, “freedom, equality, justice and dignity are essential objectives” and Article 5, “Every individual shall have the right to the respect of the dignity inherent in a human being”; text also available (1982) 21 ILM 58; American Convention on Human Rights, signed 22 November 1969, entered into force 18 July 1978, OASTS 36, OAS Off Rec OEA/Ser.L/V/II.23, doc 21, Rev 2, Article 5, “All persons ... treated with respect for the inherent dignity of the human person”; text also available (1970) 9 ILM 673; Declaration of the Basic Duties of ASEAN Peoples and Governments (1982 Asian NGO declaration) “inspired by Asian reverence for human life and dignity which recognizes in all persons basic individual and collective rights”, cited in Leary VA, “The Asian Region and the International Human Rights Movement” in Welch CE and Leary VA eds, Asian Perspectives on Human Rights (1990) p 13 at 23.
[15] International Covenant on Civil and Political Rights (ICCPR) adopted 16 December 1966, entered into force 23 March 1976, GA Res 2200 A (XXI) UN Doc A/6316 (1966); 999 UNTS 171.
[16] International Covenant on Economic, Social and Cultural Rights (ICESCR) adopted 16 December 1966, entered into force 3 January 1976, GA Res 2200 A (XXI) UN Doc A/6316 (1966); 993 UNTS 3.
[17] UDHR, n 12 above, preamble.
[18] Flax J, “The End of Innocence” in Butler J and Scott JW eds, Feminists Theorize The Political (1992) p 445 at 447.
[19] Schachter O, “Human Dignity As A Normative Concept” (1983) 77 American Journal of International Law 848 at 849.
[20] Donnelly J, “Human Rights and Human Dignity: An Analytic Critique of Non-Western Conceptions of Human Rights” (1982) 76 American Political Science Review 303 at 314; Leary, “The Effect of Western Perspectives on International Human Rights”, n 2 above, p 21.
[21] Henkin, The International Bill of Rights, n 4 above, p 12. Although Henkin does concede that the concept of “rights” implies a particular relationship between the individual and society.
[22] Ibid, p 28.
[23] Ibid, pp 1–2.
[24] Ibid, p 12. In a similar vein, Rosalyn Higgins states: “I believe, profoundly, in the universality of the human spirit”, Higgins R, Problems and Process: International Law and How We Use It (1994) p 96.
[25] Henkin, The International Bill of Rights, n 4 above, p 7.
[26] Schachter, n 19 above, at 849.
[27] Ibid.
[28] Ibid, at 849–851.
[29] Kant I, Critique of Practical Reason (LW Beck translation 1956) pp 42–50.
[30] Teson F, “The Kantian Theory of International Law” (1992) 92 Columbia Law Review 53 at 64.
[31] UDHR, n 12 above, Article 1 states “All human beings ... are endowed with reason and conscience and should act towards one another in the spirit of brotherhood [sic]”.
[32] Butler J, “Contingent Foundations: Feminism and the Question of “Postmodernism” in Butler J and Scott JW eds, Feminists Theorize The Political (1992) p 3 at 7–8.
[33] Howard R, “Dignity, Community and Human Rights” in An-Na`im AA ed, Human Rights in Cross-Cultural Perspectives (1992) p 81 at 81.
[34] Cover RM, “Obligation: A Jewish Jurisprudence of the Social Order” (1988) 5 Journal of Law and Religion 65 at 69. See also Donnelly, “Human Rights and Human Dignity”, n 20 above, at 310 who argues that the universality of human rights law is justified by the severing of earlier communal ties because of westernisation which has destroyed traditional means of realising human dignity.
[35] Otto D, “Subalternity and International Law: The Problems of Global Community and the Incommensurability of Difference” (1996) 5 Social and Legal Studies 337 at 341.
[36] See below, part 3(i) Universalising the Nation-State and governmentality ”, p 2.
[37] Davies, n 8 above, p 177. “‘Neutrality’ is only the position which is culturally enabled to deny its positionality — it is the position which is empowered to know”.
[38] Pannikar R, “Is The Notion of Human Rights a Western Concept?” (1982) 120 Diogenes 76 at 94.
[39] Bunch C, “Women’s Rights As Human Rights: Toward a Re-Vision of Human Rights” (1990) 12 Human Rights Quarterly 486; Peterson VS, “Whose Rights? A Critique of the ‘Givens’ in Human Rights Discourse” (1990) 15 Alternatives 303; Charlesworth H, “What Are ‘Women’s International Human Rights’?” in Cook RJ ed, Human Rights of Women (1994) p 58; Cook RJ, “Women’s International Human Rights Law: The Way Forward” (1993) 15 Human Rights Quarterly 230; Romany C, “State Responsibility Goes Private: A Feminist Critique of the Public/Private Distinction in International Human Rights Law” in Cook RJ ed, Human Rights of Women (1994) p 85; Bunting A, Theorising Women’s Cultural Diversity in Feminist International Human Rights Strategies (1993).
[40] This brief discussion involves a level of generality by which I do not mean to suggest that either tradition is monolithic or without diverse local variations and resistances. See Hom S, “Commentary: Re-Positioning Human Rights Discourse on ‘Asian’ Perspectives” (1996) 3 Buffalo Journal of International Law 209 at 211.
[41] Lazreg M, “Human Rights, State and Ideology: An Historical Perspective” in Pollis A and Schwab P eds, Human Rights: Cultural and Ideological Perspectives (1979) p 32 at 34.
[42] Ibid, p 35.
[43] An-Na`im AA, “Human Rights in the Muslim World: Socio-Political Conditions and Scriptural Imperatives” (1990) 3 Harvard Human Rights Journal 13 at 22.
[44] The Qur`an is the word of God as revealed to the final Prophet Muhammad between 610 and 632 AD. The Sunna are records of the Prophet’s interpretations and applications of Islam.
[45] An-Na`im AA, “The Rights of Women and International Law in the Muslim Context” (1987) 9 Whittier Law Review 491 at 495–6.
[46] An-Na`im AA, “Islam, Islamic Law and the Dilemma of Cultural Legitimacy for Universal Human Rights” in An-Na`im AA ed, Human Rights in Cross-Cultural Perspective: A Quest for Consensus (1992) p 31 at 47.
[47] Afkhami M and Vaziri H, Claiming Our Rights: A Manual for Women’s Human Rights Education in Muslim Societies (1996) pp v–vi.
[48] An-Na`im, “Human Rights in the Muslim World: Socio-Political Conditions and Scriptural Imperatives”, n 43 above, at 14.
[49] An-Na`im, “Islam, Islamic Law and the Dilemma of Cultural Legitimacy for Universal Human Rights”, n 46 above, pp 46–50, who draws on the work of the Sudanese Muslim reformer Ustadh Mahmoud Mohamed Taha; Tibi B, “The European Tradition of Human Rights and the Culture of Islam” in An-Na`im AA and Deng FM eds, Human Rights in Africa: Cross-Cultural Perspectives (1990) p 104 at 119–121; Afkhami and Vaziri, n 47 above.
[50] Tibi, ibid, p 118 quotes from the Universal Islamic Declaration of Human Rights: “Fourteen centuries ago Islam rendered human rights legal in full depth and extent. Islam attached to these rights all necessary guarantees to protect them” from the Declaration reprinted in Muhammad Salim al-`Awwa, fi al-nizam al-siyasi li al-dawla al-islamiyya, p 307. For an English translation see Weeramantry CG, Islamic Jurisprudence: An International Perspective (1988) pp 176–83.
[51] al-`Awwa, n 50 above, “human reason is incapable of finding the right path for a proper life without the guidance of God”, pp 308–9.
[52] Gangjian D and Gang S, “Relating Human Rights to Chinese Culture: The Four Paths of the Confucian Analects and the Four Principles of a New Theory of Benevolence” in Davis MC ed, Human Rights and Chinese Values (1995) p 35.
[53] Pannikar, n 38 above, at 87.
[54] Ibid, at 87–88.
[55] The right of peoples to self-determination was included in the first article of the ICCPR and the ICESCR and the “third” and “fourth” generations of human rights also encompassed collective or group rights. However, the hierarchical ordering of the categories of human rights ensures that the primary emphasis on the individual as the subject of human rights law remains by virtue of the “higher” generational status of individual rights.
[56] Howard, n 33 above, p 85.
[57] UDHR, n 12 above, Article 27(1) “Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits” (my emphasis). However, it should be recognised that the ICCPR, Article 27, does expand this formulation to oblige States not to deny members of ethnic, religious or linguistic minorities the right “in community with the other members of their group, to enjoy their own culture ...” (my emphasis).
[58] Ibid, Article 2, “Everyone is entitled to all the rights and freedoms set forth in the Declaration, without distinction ...” (my emphasis).
[59] Ibid, “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 ...” (my emphasis). The framers of this article specifically had in mind the discrimination that may attend the foreign administration of trust or non-self-governing territories.
[60] Kenyatta J, Facing Mount Kenya: The Tribal Life of the Gikuyu (1965) ch 5; Obiora LA, “Feminism, Globalisation, and Culture: After Beijing” (1997) 4 Global Legal Studies Journal 355 at 397. It should be noted that in communal traditions the dignity of individuals results from the collective welfare.
[61] Davis MC, “Chinese Perspectives on Human Rights” in Davis MC ed, Human Rights and Chinese Values (1995) p 3 at 13; Little R and Reed W, The Confucian Renaissance (1989) p 54–55.
[63] Derrida J, “Force Of Law: The ‘Mystical Foundation of Authority’” (1990) 11 Cardozo Law Review 921 at 1003.
[64] CRC, n 14 above. Despite its gender inclusive language, the Convention does not recognise or address the gendered dimensions of children’s human rights violations. For example, it makes no reference to a minimum marriage age or to education about reproduction and family planning. Nor does the Convention acknowledge the systemic dimensions of many girls’ unequal access to such basics as food, education, leisure and, in some States, to life itself.
[65] UDHR, n 12 above, Articles 23(3) and 25(1).
[66] Charlesworth H and Chinkin C, “The Gender of Jus Cogens” (1993) 15 Human Rights Quarterly 63.
[67] UDHR, n 12 above, Article 25(2).
[68] Zearfoss S, “The Convention for the Elimination of All Forms of Discrimination Against Women: Radical, Reasonable, or Reactionary?” (1991) 12 Michigan Journal of International Law 903 at 916. For further discussion of the problems associated with “special” treatment in human rights law, see nn 143–147 below.
[69] Waldron J, “Nonsense Upon Stilts? A Reply” in Waldron J ed, Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man (1987) p 183–190; Taylor C, “Atomism” in Taylor C, Philosophy and Human Sciences (1985) pp 29–50.
[70] Howard, n 33 above, p 84.
[71] Pannikar, n 38 above, at 95–96. By the “Indian” tradition, Pannikar means Hindu, Jain and Buddhist conceptions of reality.
[72] Cover, n 34 above, pp 69–70.
[73] Lazreg, n 41 above, pp 35–36.
[74] Purvis N, “Critical Legal Studies in Public International Law” (1991) 32 Harvard International Law Journal 81 at 94.
[75] Waldron J, “Rights In Conflict” in Waldron J, Liberal Rights: Collected Papers 1981–1991 (1993) p 203 at 214. Waldron argues that it is impossible to argue that any given right is purely positive or purely negative in character once you start to think about what duties are associated with it.
[76] Leary, “The Effect of Western Perspectives on International Human Rights”, n 2 above, p 22.
[77] Ibid, p 21.
[78] Lazreg, n 41 above, p 37.
[79] Donnelly J, “Human Rights and Western Liberalism” in An-Na`im AA and Deng FM eds, Human Rights in Africa: Cross-Cultural Perspectives (1990) p 31 at 34. Donnelly argues that even Locke’s minimalist conception of liberalism had within it the germ of the more radical social democratic tradition which was to later emerge.
[80] Foucault M, “Truth and Power” in Gordon C ed, Power/Knowledge (1980) p 109 at 131–2; Foucault, n 10 above, p 93.
[82] Ibid.
[83] Foucault, n 10 above, p 83.
[84] Ibid, p 99.
[85] Morgan W, Otto D and Walker K, “Rejecting (In)Tolerance: Critical Perspectives on the United Nations Year for Tolerance” [1995] MelbULawRw 14; (1995) 20 Melbourne University Law Review 190.
[86] Cook R, WHO/DGH/93.1, Geneva 1993, quoted in Leary VA, “The Right to Health in International Human Rights Law” (1994) 1 Health and Human Rights 24 at 51.
[87] Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, adopted 15 December 1989, entered into force 11 July 1991, GA Res 44/128, preamble para 6 notes the differing views of States about whether imposing the death penalty is a human rights violation.
[88] Schneider CE, “Rights Discourse and Neonatal Euthanasia” (1988) 76 California Law Review 151 at 153.
[89] Shelton D, “Abortion and the Right to Life in the Inter-American System: The Case of ‘Baby Boy’” (1981) 2 Human Rights Law Journal 309; Cook R, “International Protection of Women’s Reproductive Rights” (1992) 24 New York University Journal of International Law and Politics 645 at 703–711.
[90] Foucault M, The History of Sexuality (1976) vol I, p 140.
[91] As Foucault explains, the rationale for capital punishment changed from one of justifiable defence of the sovereign’s power to an invocation of “the monstrosity of the criminal, his incorrigibility, and the safeguard of society”, ibid, p 138.
[92] UDHR, n 12 above, Article 3. The relevant article in the ICCPR, n 14 above, Article 6, obligates States to provide protection against arbitrary deprivation of life, restricts the circumstances in which the death penalty can be carried out and specifies that its provisions do not derogate from the provisions of the Genocide Convention.
[93] Hunt A, “Rights and Social Movements: Counter-Hegemonic Strategies” (1990) 17 Journal of Law and Society 309.
[94] Pannikar, n 38 above, at 86.
[95] Dworkin R, Taking Rights Seriously (1978) p xi. I employ Dworkin’s concept of a trump card to illustrate the apparent unbeatable winning position of knowledges that are constructed as True by dominant discourses.
[96] MacKinnon CA, “Feminism, Marxism, Method and the State: Toward Feminist Jurisprudence” (1983) 8 Signs 635 at 638–9.
[97] Alston P, “Conjuring Up New Human Rights: A Proposal for Quality Control” (1984) 78 American Journal of International Law 607 at 613; Gibson N, “The Right to a Clean Environment” (1990) 54 Saskatchewan Law Review 5 at 15. Contra, Kiss A and Shelton D, International Environmental Law (1991) pp 21–31.
[98] Kingsbury B, “Claims By Non-State Groups In International Law” (1992) 25 Cornell International Law Journal 481 at 488 notes that Article 27 of the ICCPR, which is narrow in its scope, “remains the only express and legally binding minority rights provision of general application” in international human rights law.
[99] de Saussure F, Course In General Linguistics (1959). Saussure’s concept of the “sign” consists of both the “concept” which he calls the “signified” and the “sound-image” which he calls the “signifier”. The relationship between any particular sign and signifier is the result of convention and not determined by a prior system. See also Davies, n 8 above, pp 229–240.
[100] Derrida J, Positions (1981) p 41.
[101] Scott JW, “Deconstructing Equality-Versus-Difference: or, the Uses of Poststructuralist Theory for Feminism” (1988) 14 Feminist Studies 33 at 44.
[102] Nicholson LJ, “Introduction” in Nicholson LJ ed, Feminism/Postmodernism (1990) p 4 at 10.
[103] MacKinnon CA, “Difference and Dominance: On Sex Discrimination” in MacKinnon CA, Feminism Unmodified (1987) p 32 at 36.
[104] Steiner HJ and Alston P, International Human Rights in Context: Law, Politics, Morals (1996) p 257 locate some of historical origins of this debate in the work of Enlightenment philosophers including Kant and Marx.
[105] Ibid, p 260.
[106] Henkin, The International Bill of Rights, n 4 above, p 8.
[107] Cossman B, “Reform, Revolution or Retrenchment? International Human Rights in the Post-Cold War Era” (1991) 32 Harvard International Law Journal 339 at 345.
[108] Van Hoof GJH, “The Legal Nature of Economic, Social and Cultural Rights: A Rebuttal of Some Traditional Views” in Alston P and Tomasevski K eds, The Right To Food (1984) p 97, extracted in Steiner and Alston, International Human Rights in Context, n 104 above, pp 279–283.
[109] GA Res 543, 6 GAOR Supp 20, UN Doc A/2119 at 36 (1952) which approved the development of two Covenants but emphasised their interdependence and required that they be simultaneously adopted by the General Assembly; Statement to the World Conference on Human Rights on Behalf of the Committee on Economic, Social and Cultural Rights, UN Doc E/1991/22, Annex III.
[110] Waldron, “Rights in Conflict”, n 75 above.
[111] Pechota V, “The Development of the Covenant on Civil and Political Rights” in Henkin L ed, The International Bill of Rights: The Covenant on Civil and Political Rights (1981) p 32 at 42.
[112] Ibid, p 45.
[113] Cassese A, “The Self-Determination of Peoples” in Henkin L ed, The International Bill of Rights: The Covenant on Civil and Political Rights (1981) p 92.
[114] The Non-Aligned Movement (NAM) also known as the Group of 77 (G77) formed in the early 1970s as a lobby group of Third World States united in their goal to challenge global European economic domination.
[115] Alston, “Conjuring Up New Human Rights”, n 97 above.
[116] Bedjaoui M, “The Right To Development” in Bedjaoui M ed, International Law: Achievements and Prospects (1991) p 1177 at 1182.
[117] Declaration on the Right to Development (DRD) GA Res 41/128, UN Doc A/Res/41/128 (4 December 1986) was adopted by 146 votes to one against, with 8 abstainers. The US cast the only vote against adoption. Abstainers were Denmark, Finland, Germany, Iceland, Israel, Japan, Sweden, UK. Both Canada and Australia voted for the resolution.
[118] Donnelly J, “In Search of the Unicorn: The Jurisprudence and Politics of the Right to Development” (1985) 15 California Western International Law Journal 473.
[119] Alston P, “Revitalising United Nations Work on Human Rights and Development” [1991] MelbULawRw 16; (1991) 18 Melbourne University Law Review 216 at 219.
[120] DRD, n 117 above, Article 2(3): “States have the right and the duty to formulate appropriate national development policies” (my emphasis).
[121] Mabo v Queensland (No 2) (1992) 175 CLR 1 at 58 (Brennan J) referring to this view as out of step with contemporary standards of justice and human rights.
[122] Otto D, “A Question of Law or Politics? Indigenous Claims to Sovereignty in Australia” (1995) 21 Syracuse Journal of International Law and Commerce 65 at 92.
[123] Kingsbury B, “Whose International Law? Sovereignty and Non-State Groups”, Proceedings, American Society of International Law, 88th Annual Meeting (1994). The statement by Canada at the 2nd meeting of the Human Rights Commission’s Working Group on the draft Declaration on the Rights of Indigenous Peoples bears this out:
The Government of Canada accepts a right of self-determination for indigenous peoples which respects the political, constitutional and territorial integrity of democratic states.
Coles S, “UN Working Group on the Draft Declaration on the Rights of Indigenous Peoples, Second Meeting, October 21–November 1, 1996” (1996) 4 International Law News 3 at 4.
[124] International Labour Organisation Convention (No 107) “The Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (1957)” in ILO, International Labour Conventions and Recommendations 1919–1981 (1996) p 99.
[125] Dodson M, “Towards The Exercise of Indigenous Rights: Policy, Power and Self-Determination” (1994) 35 Race and Class 65; Langton M, “The United Nations and Indigenous Minorities: A Report on the United Nations Working Group on Indigenous Populations” in Hocking B ed, International Law and Aboriginal Human Rights (1988) p 83; Anaya J, Indigenous Peoples and International Law (1996).
[126] Barsh RL, “Indigenous Peoples: An Emerging Object of International Law” (1986) 80 American Journal of International Law 369; Langton, n 125 above.
[127] Foucault, “Two Lectures”, n 10 above, p 95.
[128] Williams P, The Alchemy of Race and Rights: Diary of a Law Professor (1991) p 163.
[129] Williams RA, “Encounters on the Frontiers of International Human Rights Law: Redefining the Terms of Indigenous Peoples’ Survival in the World” (1990) Duke Law Journal 660.
[130] Smart C, Feminism and the Power of Law (1989) p 5.
[131] Koskenniemi M, “The Future of Statehood” (1991) 32 Harvard International Law Journal 397 at 399.
[132] Leary, “The Effect of Western Perspectives on International Human Rights”, n 2 above, p 22.
[133] Pateman C, The Disorder of Women: Democracy, Feminism and Political Theory (1989).
[134] Locke J, Two Treatises of Government: Second Treatise (Laslett P ed, (1960) ch IV, “Of Slavery” paras 23–24.
[135] Henkin, n 3 above, p 20.
[136] Otto D, “Holding Up Half the Sky but for Whose Benefit? A Critical Analysis of the Fourth World Conference on Women” (1996) 6 Australian Feminist Law Journal 7 at 13–15.
[137] Copelon R, “Intimate Terror: Understanding Domestic Violence As Torture” in Cook RJ ed, Human Rights of Women (1994) p 116; Holt R, “Women’s Rights and International Law: The Struggle for Recognition and Enforcement” (1991) 1 Columbia Journal of Gender and the Law 117; Greatbach J, “The Gender Difference: Feminist Critique of Refugee Discourse” (1989) 1 International Journal of Refugee Law 518.
[138] Bunch, n 39 above, at 492.
[139] Peterson, n 39 above; Binion G, “Human Rights: A Feminist Perspective” (1995) 17 Human Rights Quarterly 509; Cain PA, “Feminism and the Limits of Equality” (1990) 24 Georgia Law Review 803.
[140] Smart C, “The Woman of Legal Discourse” (1992) 1 Social and Legal Studies 29.
[141] Mohanty C, “Under Western Eyes: Feminist Scholarship and Colonial Discourses” (1988) 30 Feminist Review 61; Amos V and Parmar P, “Challenging Imperial Feminism” (1984) 17 Feminist Review 4.
[142] Miller A, Rosga AJ and Satterthwaite M, “Health, Human Rights and Lesbian Existence” (1994) 1 Health and Human Rights 428; Otto D, “Questions of Solidarity and Difference: Transforming the Terms of Lesbian Interventions in International Law” in Robson R and Brownworth V eds, Seductions of Justice: Lesbian Legal Theories and Practices (forthcoming).
[143] CERD, n 14 above; CEDAW n 14 above.
[144] CERD, ibid, Article 1(4).
[145] CEDAW, n 14 above, Article 4(1).
[146] Ibid, Article 11(2).
[148] Minow M, “Learning To Live With the Dilemma of Difference: Bilingual and Special Education” (1984) 48 Law and Contemporary Problems 157.
[149] Scott, n 101 above, at 43.
[150] Ibid, at 36.
[151] Coomaraswarmy R, “To Bellow Like A Cow: Women, Ethnicity and the Discourse of Rights” in Cook RJ ed, Human Rights of Women: National and International Perspectives (1994) p 39 at 40.
[152] Wildman SM with Davis AD, “Language and Silence: Making Systems of Privilege Visible” in Delgado R ed, Critical Race Theory: The Cutting Edge (1995) p 573 at 574.
[153] Henkin, The International Bill of Rights, n 4 above, p 7.
above, Articles 55–72.
[155] Ibid, preamble.
[156] Belvisi F, “Rights, World-Society and the Crisis of Legal Universalism” (1996) 9 Ratio Juris 60 at 61.
[157] Anderson B, Imagined Communities: Reflections on the Origin and Spread of Nationalism (1991).
[158] Teson, n 30 above, at 82–84, referring to Immanuel Kant’s work To Perpetual Peace: A Philosophical Sketch (1795).
[159] Pollis A and Schwab P, “Human Rights: A Western Construct with Limited Applicability” in Pollis A and Schwab P eds, Human Rights: Cultural and Ideological Perspectives (1979) p 1 at 9.
[160] Howard, n 33 above, p 84.
[161] Guha R, “On Some Aspects of the Historiography of Colonial India” in Guha R and Spivak GC eds, Selected Subaltern Studies (1988) p 37 at 38.
[162] African Charter on Human and Peoples’ Rights, n 14 above.
[163] Shivji IG, The Concept of Human Rights in Africa (1989) p 99.
[164] Note “Constructing the State Extraterritorially: Jurisdictional Discourse, the National Interest, and Transnational Norms” (1990) 103 Harvard Law Review 1273 at 1287.
[165] Foucault M, “Governmentality” in Burchell G, Gordon C and Miller P eds, The Foucault Effect: Studies in Governmentality (1991) p 87 at 102–3.
[166] Ibid, p 103.
[167] Ibid, p 92.
[168] Gordon, n 11 above, p 10.
[170] Ibid, p 303.
[171] Gordon, n 11 above, p 10.
[172] Ibid, p 4.
[173] Ibid, p 2. Foucault talks about “government” on a number of levels besides the political, including of one’s self, of interpersonal relationships, and of institutional and community relationships.
[174] Ibid, pp 3 and 22.
[175] Foucault, n 165 above, p 99.
[176] Foucault, n 90 above, p 147.
[177] Ibid, p 141.
[178] Ibid.
[179] Foucault, n 165 above, p 96.
[180] Hacking I, “How Should we do the History of Statistics?” in Burchell G, Gordon C and Miller P eds, The Foucault Effect: Studies in Governmentality (1991) p 181.
[181] The Subaltern Studies Collective is a group of Indian historiographers whose work is informed by critical Marxist and poststructural perspectives. The initial focus of their work was to understand how, in the formation of the independent Nation-State of India, the nationalists came to represent an Indian elite that was closely allied to the British colonialists, rather than with the mass of the Indian people. This work quickly became multidimensional, producing critiques of modernity and nationalism, and addressing complex epistemological questions. See Guha R and Spivak GC eds, Selected Subaltern Studies (1988).
[182] Chakrabarty D, “Modernity and Ethnicity in India” in Bennett D ed, Multicultural States: Rethinking Difference and Identity (forthcoming) pp 8–10.
[183] Ibid, p 19.
[184] Ibid, p 15.
[185] UN Charter, n 1 above, Article 55. See also Articles 57(1) and 61(1) which set up intergovernmental specialised agencies and the Economic and Social Council respectively. The latter “may make or initiate studies and reports with respect to international economic, social, cultural, educational, health, and related matters”, Article 62(1).
[186] Gordon, n 11 above, p 8.
[187] Foucault, n 90 above, p 144.
[188] Foucault, n 165 above, p 95.
[189] Foucault, n 90 above, p 109.
[190] Foucault, n 165 above, p 102.
[191] Foucault, n 90 above, p 144.
[192] Ibid.
[193] Smart, Feminism and the Power of the Law, n 130 above, p 17; Hunt A, “Foucault’s Expulsion of Law: Toward a Retrieval” (1992) 17 Law and Social Inquiry 1 at 23.
[194] Gordon, n 11 above, p 20.
[195] UN Charter, n 1 above, Article 68.
[196] Alston P, “Appraising The United Nations Human Rights Regime” in Alston P ed, The United Nations and Human Rights: A Critical Appraisal (1992) p 1 at 2.
[197] Smart, Feminism and the Power of the Law, n 130 above, p 162.
[198] Cheah P, “Posit(ion)ing Human Rights in the Current Global Conjuncture” (1997) 9 Public Culture: Society for Transnational Studies 233 at 256, with reference to Anderson B, “Introduction”, Southeast Asian Tribal Groups and Ethnic Minorities (1987) p 1 at 11.
[199] Scott JW, “Universalism and the History of Feminism” (1995) 7 Differences: A Journal of Feminist Cultural Studies 1 at 7; Smart, Law, Crime and Sexuality, n 9 above, pp 105–7 discussing Judith Butler’s views.
[200] Foucault refers directly to “the ‘right’ to life, to one’s body, to health, to happiness, to the satisfaction of needs, and beyond all the oppressions or ‘alienations’, the ‘right’ to rediscover what one is and all that one can be”, n 90 above, p 145.
[201] Ibid.
[202] Hunt, “Rights and Social Movements”, n 93 above.
[203] Chakrabarty, n 182 above, p 19.
[204] Smart, Feminism and the Power of the Law, n 130 above, p 87; Hunt, “Foucault’s Expulsion of Law”, n 193 above, at 32.
[205] Hunt, ibid, at 38.