At a panel presentation given at the Annual Meeting 2017 of the Association of American Law Schools in San Francisco this week, six law professors gave short talks on the topic of Human Rights Outside the West. Although each speaker approached the topic from a different perspective, there was a common theme: how well has the Western human rights paradigm travelled outside its home territories? Should we, indeed, regard it as essentially Western in nature and unitary in application, or might there be other ways of interpreting and applying it?  Paul Magrath was there.

Introducing and moderating the discussion, Timothy Webster, Assistant Professor of Law and Director of Asian Legal Studies at Case Western Reserve University School of Law, pointed out that we tend to think of human rights as part of the heritage of modern European civilisation — a development of the Enlightenment notion of the autonomous self and a core ingredient in constitutional deeds such as the American Bill of Rights. What the session sought to explore was how those ideas have been adopted — and perhaps even improved — in Africa and Asia.

W Warren Hill Binford, Associate Professor of law at Willamette University College of Law in Oregon, spoke on the topic of children’s rights, focusing on developments in South Africa. Although a founding member of both the League of Nations and the United Nations and a signatory of both the 1924 and 1959 Declarations of the Rights of the Child, South Africa during the post-war apartheid years began systematically to violate children’s rights domestically.

A pivotal event was the 1976 Soweto Uprising. It had begun as a peaceful march by black children in their school uniforms seeking equal rights to education, but the government forces opened fire on them, killing hundreds. There followed widespread condemnation of South Africa, which had already been suspended from the UN.

Meanwhile in the international community, significant advances in children’s rights continued to be made, with the International Year of the Child in 1979 leading to the drafting of the UN Convention on the Rights of the Child 1989 in which other African nations, though not South Africa, participated. It was eventually ratified by South Africa in 1995 after the new Republican Government had  taken over and thereafter South Africa once again took a leading role in promoting the rights of the child. Indeed, the 1996 Constitution was the most progressive in the world in relation to children’s rights.

Further reading: The Constitutionalization of Children’s Rights in South Africa: 1994-2014 (PDF)

Stewart Chang, Associate Professor of Law and Director of the Center for International and Comparative Law at Whittier Law School, spoke on the topic of human rights in Singapore and Asia generally, focusing on gay rights. Typically Singapore was seen as underdeveloped in terms of human rights, an “illiberal democracy” whose authoritarian government limited freedoms of expression and association and retained corporal punishment and the death penalty. The Asian Values ideology codified in the Bangkok Declaration 1993 saw human rights as a luxury and promoted the needs of the community as outweighing those of the individual, justifying authoritarian rule as necessary to accomplish social stability and economic development. The 1994 case of Michael Fay, the American teenager sentenced to fining, imprisonment and six strokes of the cane for vandalism, drew attention when the government rejected the US government’s plea for clemency. 

It was in that context that Singapore’s law on homosexuality should be considered. Although in 2007 Singapore had repealed the prohibition on non-vaginal sex in section 377, it had chosen to retain the anti-sodomy provision in section 377A of its Penal Code. But what was interesting was the way it was enforced by the courts in two rather different cases, and how its approach to gay rights compared with that in the US.

One prosecution involved an act of oral sex in a public toilet; the other involved a committed gay couple. In both cases appeals were lodged on the grounds that the prohibition in section 377A was unconstitutional. The Court of Appeal, having consolidated the two appeals, rejected them both, ruling that it was proper for parliament to legislate based on public morality. The treatment of both types of case in the same way, while illiberal in effect, did not subordinate the interests of one sector of the gay community to those of another [what Chang has elsewhere described as the “good gay” vs “bad queer” dichotomy].

By contrast, the promotion of gay rights in more liberal democracies has often been achieved only by forcing gays to buy into the notion of a “normal” relationship of same-sex marriage founded on privacy arguments, rather than a non-discrimination approach acknowledging that variant forms of sexuality should not be subject to the criminal law.

Further reading: Gay Liberation in the Illiberal State (PDF)

Arlene S Kanter, Professor of Law and Director of the College of Law’s Disability Law and Policy Program at Syracuse University School of Law, spoke on the topic of disability rights and the global implementation of the UN Convention on the Rights of People with Disabilities 2006 (CRPD), in the development of which she participated. The CRPD hailed a new dawn. In the past, people with disabilities were overlooked in human rights instruments and ignored by human rights organisations. For example, Amnesty International in its 1970s campaign against the detention by the USSR of political prisoners in psychiatric hospitals largely ignored the abuse of rights of genuine mental patients in those same hospitals.

This began to change in the 1990s. Moreover, in respect of the disabled the western human rights paradigm had indeed travelled outside the West and was flourishing. Many countries were developing their disability rights laws incorporating the paradigm from the CRPD. South Sudan, for example, had very few laws at all, but it had one protecting the rights of the disabled. China, traditionally seen as backward in the human rights sphere, was currently reforming its disability law. Likewise Kenya, Vietnam.

The essential change had been to stop viewing disability as an aspect of social welfare and instead to treat people with disabilities as fully entitled to participate in society and to get the support they needed to enjoy the same rights and opportunities as others.

Further reading: The Development of Disability Rights Under International Law (book)

Also a review of Kanter’s book by Lucy Series (Cardiff).

Karla M McKanders, Associate Professor of Law at the University of Tennessee College of Law, spoke on the topic of race, gender and refugee status, with a particular focus on Morocco as a crossroads of transit and migration. Morocco had ratified the 1951 Refugee Convention but was struggling to comply with its obligations. Located where it was, the closest part of North Africa to Europe, but also including two small Spanish territories within its borders, it was an obvious focal point of transit and attempted migration into the European Union both from sub-Saharan Africa and from the MENA region (Middle East and North Africa). This had only intensified in response to the recent securitisation of Eastern Europe in response to the current refugee crisis.

The government of Morocco, a constitutional monarchy, had for a long time been in denial of the problem, keeping no statistics of the migrant population, and largely unaware of the presence of refugees in its territory. There was xenophobia towards African asylum seekers, and an assumption that all transients were basically economic migrants, rather than refugees fleeing from conflict and oppression and thus entitled to protection.

Although Morocco was now more aware of the issue of migrants in its midst, and was receiving funding from Spain to help reduce the risk of migration to the EU, there remained a tension between two approaches to the problem:

  • the juridical or group perspective, regarding the migrant population in terms of entitled groups (for example according Syrian refugees status as a group), and
  • the personal freedom perspective, considering the specific factors affecting the individual migrant (according to which, for example, those facing gender-based violence, without otherwise belonging to a recognisably oppressed group, should be accorded protection).

Further reading: Treatment of Sub-Saharan Migrants in Morocco (blog post).

Holning S Lau, Professor of Law at the University of North Carolina School of Law, spoke on the topic of decentering the West and the contribution to human rights jurisprudence of jurisdictions outside western countries. A good example of this was the arguably better approach to the legalisation of same sex marriage in South Africa compared with that in the USA.

In the US case of Obergefell v Hodges 576 U.S. 644 (2015) (PDF) the ruling was based on the idea in the majority judgment of Justice Kennedy hat marriage brings dignity to the gay individual, who might otherwise be condemned to the loneliness of the unmarried. It was not so much about freedom of choice as about freedom to conform.

In the South African case of Fourie v Minister of Home Affairs [2005] ZACC 19 (PDF) the Constitutional Court did not base its ruling on the idea that marriage per se confers dignity on the individual, but rather that the choice of marriage should be available to all. The court explained that gays and lesbians may indeed choose not to marry, just as might heterosexuals. In what appeared to be a more positive and inclusive approach, it did not entrench stereotypes.

Rather than immediately changing the common law definition of marriage (as the union of one man and one woman) and reading down section 30(1) of the Marriage Act (which governed the form of words of the marriage ceremony) to comply with the Constitution, Sachs J gave Parliament a year to legislate for the change. That was criticised by human rights activists: after all, if the law was wrong, why wait? Lau himself had been sceptical. But when travelling to South Africa during the one-year consultation period, he had been struck by how productive the period had been in engaging public discussion of the issues and helping to change hearts and minds. It therefore had a legitimising function, and had succeeded in getting the South African government to get on board with legislation.

The description of legal developments, such as the advancement of LGBT rights, had sometimes been described as “westernisation” but that obscured too much. A good example was the way that the courts in Hong Kong, facing such issues, had rejected the jurisprudence of the US and ECtHR, relying instead on that of South Africa. Using the language of westernisation implied a monopoly on progressiveness which was not borne out by development elsewhere in the world.

Matiangai Sirleaf, assistant professor of law at the University of Pittsburgh School of Law, spoke on the global human rights implications of public health issues, with particular emphasis on the Ebola epidemic. It had been said “Ebola does not fall from the sky”. The epidemic had a natural cause, but its containment and treatment showed up how international regimes treated human rights outside the West and revealed the weaknesses of global machanisms to respond to a public health crisis. The problem, in essence, was that if something did not involve direct physical violence, it did not get international attention.

Neglect of the risk of infectious diseases was a form of “structural violence”, which warranted international intervention. The tendency of international humanitarian intervention had been to focus on national issues like poor government, corruption, etc. This focus on domestic governance issues was a way of “othering” the problem of infectious diseases and of scapegoating affected areas. It was only when something like the Ebola crisis impacted on the global North that it engaged western political will.

International law and institutions tended to focus more on the protection of rights affected by political violence, much less so on rights affected by economic and health issues. The concept of structural violence helped to see why such things were de-prioritised internationally.

Structural violence was embedded in the political and economic organisation of society and manifested itself as unequal power and therefore unequal life chances for those affected.

Using the concept of structural violence helped to draw attention to how we conceptualised violence, and as an analytical tool it could be used to interrogate how international organisations and regimes, such as the WHO, UN Security Council, World Bank and IMF, dealt with infectious diseases such as Ebola.

Further reading: Ebola Does Not Just Fall from the Sky: Global Structural Violence and International Responsibility (Work in progress)

Conclusion

There followed a discussion, moderated by Webster, with questions from the floor. What these various presentations seemed to illustrate was that in areas concerned with more newly appreciated rights, such as the rights of children, health, economic and sexual rights and in relation to disability, the west was by no means in the lead and there were developments elsewhere in the world that did not necessarily follow the same, sometimes outdated, sometimes too “vertical”, approach. It was also fair to say that even in the West there remained a considerable gap between the norms underwritten by states and the lived experience and reality of their populations. At a time when, for example, the UK government was talking about backtracking on human rights and withdrawing from the jurisdiction of the most effective regional human rights mechanism in the world, and there were signs of a backlash against rights elsewhere in the western world, it was all the more important to recognise the positive contribution that states in Africa and Asia could make.

The above summary was written by Paul Magrath, based on his necessarily imperfect notes, supplemented by some rummaging on the internet. Paul Magrath was at AALS 2017, together with Paul Hastings, representing ICLR at the event. You can also read his Conference Diary on this blog.

Comments welcome on Twitter, where you can follow @maggotlaw and @TheICLR.