Human Rights for the 21st Century: Sovereignty, Civil Society, Culture (Stanford Studies in Human Rights) - Softcover

Stacy, Helen M.

Softcover

ISBN 10: 0804760950 ISBN 13: 9780804760959

Publisher: Stanford University Press, 2009

Synopsis

A new moral, ethical, and legal framework is needed for international human rights law. Never in human history has there been such an elaborate international system for human rights, yet from massive disasters, such as the Darfur genocide, to everyday tragedies, such as female genital mutilation, human rights abuses continue at an alarming rate. As the world population increases and global trade brings new wealth as well as new problems, international law can and should respond better to those who live in fear of violence, neglect, or harm. Modern critiques global human rights fall into three categories: sovereignty, culture, and civil society. These are not new problems, but have long been debated as part of the legal philosophical tradition. Taking lessons from tradition and recasting them in contemporary light, Helen Stacy proposes new approaches to fill the gaps in current approaches: relational sovereignty, reciprocal adjudication, and regional human rights. She forcefully argues that law and courts must play a vital role in forging a better human rights vision in the future.

About this title

About the Author

Helen M. Stacy is a Senior Fellow at the Center on Democracy, Development, and the Rule of Law at the Freeman Spogli Institute for International Studies, Stanford University, and a Senior Lecturer at the Stanford Law School.

Excerpt. © Reprinted by permission. All rights reserved.

Human Rights for the 21st Century

Sovereignty, Civil Society, CultureBy Helen M. Stacy

Stanford University Press

Copyright © 2009 Board of Trustees of the Leland Stanford Junior University
All right reserved.
ISBN: 978-0-8047-6095-9

Contents

Acknowledgments............................................................viiAbbreviations..............................................................ix1 The Human Rights Problem.................................................12 Institutionalizing International Human Rights............................373 Relational Sovereignty and Humanitarian Intervention.....................764 Reciprocal Judging.......................................................1095 Regional Human Rights Courts.............................................1416 Human Rights for the 21st Century........................................170Notes......................................................................183Bibliography...............................................................233Index......................................................................247

Chapter One

The Human Rights Problem

Introduction

When Pakistani politician Benazir Bhutto was killed in a suicide attack on December 27, 2007, she had been seeking a third term as prime minister after eight years in exile. Her election promise was that her Pakistan People's Party would implement the international standards of judicial independence that the president, Gen. Pervez Musharraf, was persistently flouting. Even before Bhutto's assassination, public anger against President Musharraf had been running high, fueled by his crackdown on the judiciary after his reelection in October 2007. He had suspended the Constitution and dismissed dissenting members of the Supreme Court, including Chief Justice Iftikhar Chaudhry, just three days before the court was expected to overturn his reelection. The legal profession's indignation with Musharraf 's flagrant violation of the independence of the judiciary erupted time and again into angry demonstrations, and when a second general election was held in February 2008, some six weeks after Bhutto's assassination, Musharraf 's political allies were trounced. Pakistan's new leaders-Bhutto's party and that of another former prime minister, Nawaz Sharif-vowed to restore the independence of the Supreme Court, called for the immediate restoration of the judges, and urged Musharraf to convene Parliament quickly so that the parties could begin the "gigantic task" of restoring the country's much-amended constitution. In the subsequent political turmoil, which included the resignation of President Sharif and the appointment of Asif Ali Zardari, Bhutto's widower, as the new president, the sacked judges were still not restored to their posts.

Pakistan's most serious political crisis since Musharraf had seized power in a coup in 1999 had in fact been brewing for quite a while. In March 2007, in a confrontation between modern Western-derived legal principles of judicial objectivity and unfettered military power, Musharraf had removed Chief Justice Chaudhry from his judicial post over allegations of misconduct. Yet instead of meekly resigning, the flamboyant judge had embarked on a nationwide campaign, traveling from city to city accompanied by a large and noisy group of thousands of supporters, including many black-suited lawyers, all shouting in unison for human rights and judicial independence. They claimed that the chief justice's sacking was motivated by Musharraf's wish to avoid legal scrutiny of his bid for a new presidential term. The independent-minded chief justice had also been raising awkward questions about "disappearances"-Pakistanis who were presumed to have been detained indefinitely by the intelligence service without access to either their families or lawyers.

There was violence: video footage showed round after round of gas shells being lobbed at the Supreme Court's white faade while lawyers scurry to avoid harm. At yet another demonstration government forces opened fire and killed more than forty people. A senior Supreme Court official who refused to bring evidence against the chief justice was shot dead at his home. Then, when Bhutto arrived in Pakistan in October 2007, her triumphant return was overshadowed by nearly two hundred deaths caused by a suicide bomber as her cavalcade traveled through the streets of Karachi. Bhutto was unharmed in this first round of deadly violence, only to die herself two months later.

A key plank in Bhutto's reelection campaign had been hard-hitting criticism of Musharraf's treatment of judges. Yet despite Musharraf's iron military rule over Pakistan, the Supreme Court had allowed Chief Justice Chaudhry to represent himself in his dismissal proceedings before the court in 2007. Shockingly for Musharraf, the Supreme Court reinstated Chadhury and he was given a platform to speak out about human rights: "If there is one lesson we could draw from our past history of sixty years, it is to adhere to the norms and principles of the constitution. It is to enforce the Constitution in its true spirit and letter [that] guarantees fundamental rights and freedoms to citizens.... These fundamental rights and freedoms are sacrosanct. They are sublime. Their violation or abridgment is a serious matter. These rights ... are fundamental issues and civilized societies take a stand on fundamental issues." According to Chief Justice Chaudhry, the job of the Pakistan courts is "to create and sustain an environment in which there is supremacy of the Constitution and rule of law.... The poor and the downtrodden sections of society must be given a stake and treated as equal citizens of the nation. This is how nations are formed and this is how societies move on to develop and progress."

A speech that might sound familiar in the democratic West was, in the eyes of Pakistan's military ruler, seen as something akin to treason. For much of its postindependence history, Pakistan's judiciary had been an apologist for military coups, interventions, and military interference. How is it then that in 2007 it was the Pakistani lawyers who galvanized the people into mass protests using the language of human rights and freedom and at the same time polarized the judiciary and radicalized large parts of political society?

Some of the answers to this question lie in Pakistan's colonial past and its confrontation with globalization and human rights. During all of Pakistan's turbulent sixty-year postindependence history, remnants of the British Raj have continuously reappeared in its political and legal systems. Since partition and independence in the 1940s, Victorian colonialism has continued as a ghostly default reference point for Pakistan's law, order, and probity. In the 1950s, almost without exception, lawyer-politicians making decisions perpetuated the courts and legal institutions they had inherited from the British, at least as far as the formal structure of the institutions is concerned. Even when the Islamist movement forced Pakistan's politicians to face the issue of Islamic identity-a question that had produced the 1962 Constitution that established sharia as Pakistan's basic law-the fundamental anglophone structure of the courts continued.

With each successive constitutional amendment, Pakistan's colonial past has cast a shadow, though increasingly refashioned over each decade as the international principle of the "rule of law." Each successive military government, including the present one, has then countered these principles, devising legalistic loopholes, keeping the judiciary weak, and eliminating potential judicial challenges to military rule. In 2007 and 2008, however, a previously docile judiciary felt so alienated that it sparked a lawyers' movement calling for true judicial independence in the name of the rule of law. These ideas are rallying Pakistan's judges, lawyers, and thousands of ordinary people marching in demonstrations. The Supreme Court's appeal to notions of international human rights as a check on domestic sovereignty has been both catalyst and fuel to this brushfire. As the example of Pakistan demonstrates, international human rights as part of the rule of law are today claimed around the world by people of many cultures and traditions. Ideas of human equality and fair, transparent government have been a force driving the creation of legal and political institutions to serve those principles. Even as human rights are invoked in a call for better treatment from oppressive government and harmful social practices, however, the expansion of international human rights has been criticized by both scholars and grassroots organizations. It has been argued that even as international law codifies civil, political, social, cultural, and economic rights that can be invoked on behalf of marginal groups and the poor, governments often thumb their noses at their international obligations. Other critics claim that international human rights have perverse effects, such as legitimizing the appropriation of indigenous property rights for the benefit of multinational corporations or through rationalizing interventions by powerful states in weaker ones. Others even suggest that what masquerades as human rights "progress" is really a subtle form of global subjugation that becomes even more pernicious when harnessed to new global patterns of capital and labor.

Some analysts point out that the human rights offered in international treaties that are grounded upon European philosophical and political writings reflect the individualism of Western legal and political thought and make little sense in cultures that do not share these intellectual roots. Still others criticize the concepts of international law as so inextricably entwined with Europe's harmful history of colonialism that the rights anchored in modern constitutions may simply repeat the sins of the past. U.S.-based African scholar Makau Mutua makes this argument sharply when he analogizes the human rights movement to earlier religious crusades, suggesting "the globalization of human rights fits a historical pattern in which all high morality comes from the West as a civilizing agent against lower forms of civilization in the rest of the world."

International human rights, its critics allege, keep bad company: first, with Europe's colonial appropriation of the New World, then with twentieth-century aggressive nationalism that led to two world wars and countless smaller conflicts, and finally with the aggressive economic expansionism that overwhelms local systems. In an eerie reprise of international law's earliest days, during the Spanish and Portuguese evangelization of South American "Indians," today's international culture wars are fought in the name of secularism versus religion, East versus West, and universalism versus particularism.

A question has been put squarely on the table for those who promote international human rights: can Europe's Enlightenment philosophy of individual rights survive present-day culture wars and contrive to provide legitimacy for international human rights institutions and courts? Or has the justification for a universal system of rights been extinguished because Enlightenment ideals of respect for culture, religion, and political organization simply cannot engage with systems that are not built upon the same foundations?

This book is a response to these critiques of international human rights. While each has some force, I argue that these critiques are incomplete. More important, they divert attention from the need to craft institutional responses to these tensions-responses that can make the international human rights system a workable means to promote human rights across cultures and systems.

Human Rights Aspirations and Reality Today

Human Rights Aspirations

The number of international human rights treaties, declarations, and statements has never been higher. Since 1946, when the Nuremberg trials exposed the horrifying dimensions of the Holocaust and punished individuals for their role in it, international law has held out the tantalizing possibility that there may be collective-action solutions to the world's problems. The architects of the United Nations system believed that human rights, already expressed piecemeal in a handful of state constitutions around the world and slowly expanded over two centuries, could be internationalized and universalized through their expression in a collective document. These post-World War II visionaries identified core human rights and gave the various governments the obligation to provide those rights for their citizens. Since the United Nations Declaration of Human Rights was adopted, international human rights treaties created under the UN system have grown at an exponential rate, which has resulted in the propagation of international standards of human rights across an ever-expanding spectrum: from prisoners' rights to women's rights, from religious rights to children's rights, from voting rights to disability rights.

On December 10, 1948, at the Palais de Chaillot in Paris, all fifty-eight member states of the United Nations General Assembly adopted the Universal Declaration of Human Rights. The declaration recognizes that freedom, justice, and peace in the world are linked to the recognition of fundamental human rights. Eighteen years later, in 1966, the United Nations (then comprising 122 states) adopted the Covenant on Civil and Political Rights, which elaborated the rights to life, liberty, and security of person as well as the rights to freedom of opinion and expression, thought, conscience, and religion. In 1976 the Covenant on Economic, Social, and Cultural Rights declared that human rights also included an adequate standard of living, health, education, and housing as well as the right to give expression to one's own cultural identity. Many of these social, economic, and cultural rights are described as "non-absolute," unlike many of the "absolute" civil and political rights, such as the human right to freedom from torture.

In an astonishingly short period the international system has generated a human rights thrust. Today the United Nations has 192 states at its table. There are fourteen core international human rights treaties covering everything from racial discrimination to violence against women to children's human rights as well as hundreds of related international agreements. Under these treaties and agreements governments of signatory states undertake to see to it that human rights are included in their national legislation, enforced in national courts, and enacted into government domestic policy. As international phenomena go, the coupling of human rights values to legal forms is an extraordinary historical development.

Human Rights Reality

Despite the impressive structure of human rights agencies and notwithstanding the energy and action driving the creation of the international human rights system, the world remains full of human rights atrocities. While the language and the law of human rights create higher and higher expectations of good behavior, governments fail in their human rights responsibilities every day. International human rights reality still routinely lags behind human rights aspirations.

For example, even though all 192 member states of the UN have committed themselves to the peaceful resolution of internal conflicts, in the last half-century 127 civil wars occurred in 73 states, killing more than 16 million people. Right now in The Sudan, government-supported forces are massacring civilians, raping women, destroying villages and food stocks, and driving tens of thousands of people into camps and settlements where they live on the very edge of survival, hostage to abuses of the Janjaweed militia groups. Other contradictory examples abound. For instance the United States is a signatory to the UN Convention Against Torture, yet since it seeks to finesse its international obligations towards prisoners by placing them in the jurisdictional no-man's-land of Guantnamo Bay, Cuba. Mexico is likewise a signatory to the UN Convention Against Torture, yet torture is reported to be widespread in the military, and corruption can be found at all levels of Mexico's federal, state, and municipal systems of administration. Virtually every postcolonial government of Australia, a signatory to the International Covenant on Civil and Political Rights, has a bad human rights record in regard to its indigenous population.

Governments also fail in their human rights obligations through simple neglect or even complete lack of interest in the human rights of certain groups in their society. These are the everyday human rights problems that lack the shock value of wartime atrocities. For instance Jordan, one of the few Arab countries where women vote and hold seats in parliament, signed the Convention on the Elimination of Discrimination Against Women (CEDAW) in the early 1990s but has not managed to pass national legislation to prevent hundreds, possibly thousands, of "honor killings." Even women who are the victims of rape are considered to have compromised their families' honor; fathers, brothers, and sons then see it as their duty to avenge their honor, not by pursuing the perpetrators but by murdering their daughters, sisters, and mothers.

(Continues...)

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Edition details

• Publisher: Stanford University Press
• Publication date: 2009
• Language: English
• ISBN 10: 0804760950
• ISBN 13: 9780804760959
• Binding: Paperback
• Edition number: 1
• Number of pages: 282