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U N I V E R S A L

VOL. 1 NO. 1, MARCH 2016 UNIVERSAL@THINKRIGHTS.DK THINKRIGHTS.DK ISSN 2445-9453

EDITOR-IN-CHIEF ALEXANDER ANDERSSON

EDITORS ANNECATHRINE CARL EMIL KELLER KJELDSEN-KRAGH JOHAN JUUL JENSEN LISA HAAGENSEN NICHOLAS HAAGENSEN

COVER AND LAYOUT GERTRUD HJELM KONGSHØJ

SPONSORED BY DANISH INSTITUTE FOR HUMAN RIGHTS

PRINTED BY REGNBUE TRYK COPENHAGEN 2016

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TABLE OF CONTENTS

FOREWORD INTRODUCTION TO THE FIRST ISSUE OF THE UNIVERSAL

Marie Juul Petersen

P . 7 EDITORIAL CATEGORIZATION AND CONTEXT: TOWARDS AN INTERDISCIPLINARY APPROACH TO HUMAN RIGHTS

Nicholas Haagensen, Lisa Haagensen and Alexander Andersson

P . 1 7 INTERVIEW NEW FRONTIERS OF HUMAN RIGHTS SCHOLARSHIP WITH ANTHONY CHASE

by Lisa Haagensen

P . 2 7 THE REVIVAL OF TAROKO HEADHUNTING RITUALS IN TAIWAN Kristoffer R avnbøl

P . 3 7 DE-CASTING INDIA Festival Godwin Boateng, Swapanil Reesha Shar ma, Caroline Winkler & Erika Matadamas

P . 5 1

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DEFINING LOCAL PROBLEMS Kamilla Falsted Dihle

P . 6 8 TRANSNATIONAL MIGRATION IN A COSMOPOLITAN WORLD Clara Iglesias Rodríguez

P . 7 6 WHO IS RESPONSIBLE FOR ASYLUM SEEKERS IN OFFSHORE DETENTION? Nikolas Feith Tan

P . 9 0 CALL FOR PAPERS FOR THE UNIVERSAL ANNUAL HUMAN RIGHTS REVIEW P . 1 0 7

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INTRODUCTION TO THE FIRST ISSUE OF THE UNIVERSAL Marie Juul Petersen

CONTEMPORARY HUMAN RIGHTS RESEARCH: A MULTIDISCIPLINARY FIELD The last 15 years have witnessed a veritable explosion in human rights research from a wide range of different disciplines, firmly establishing the field of human rights research as a multidisciplinary field.1 The contributions to the first issue of The Universal speak to this multidisciplinarity, including articles from students of anthropology, sociology, social work, law, international relations, and sociology. This is a new situation. Human rights research was for many years practically mono-disciplinary, dominated by legal scholars, perspectives and analyses (Viljoen 2012, p. xiii).2 A 1989 study found that about 90 percent of academic journal articles on human rights were published in law journals, and about 90 percent of university courses on human rights were taught in law departments (Prichard 1989, p. 459). In terms of human rights practice, legal scholars also dominated the field. As James Nickel notes, in its first decades the international system of human rights was more than anything ‘an international political movement with aspirations to create international law’ (quoted in Verdirame 2013, p. 32). Legal scholars contributed actively to the development of new conventions and declarations, and some of the most prolific scholars became members of international monitoring human rights bodies (Andreassen et al. forthcoming). With the expansion of the human rights regime and the increasing importance of the concept in national and international politics, interest in human rights within other disciplines increased, and today, “the richness of research and publication […] that integrate human rights perspectives is overwhelming” (Viljoen 2012, p. xvii). 1   That the field is multidisciplinary does not necessarily mean that it is also interdisciplinary – as shall be discussed in the last section of the Introduction. 2   There are notable exceptions to this, including the 1979 establishment of the explicitly multidisciplinary journal Human Rights Quarterly, and the 1994 journal Health and Human Rights.

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A study of leading political science journals, for instance, found that the number of articles on human rights has increased from only 34 articles on human rights before 1980, 36 in the 1980s, and 60 in the 1990s, to more than 450 in the 2000s (Freeman 2011, p. 99). While similar studies have not been conducted within other disciplines, this pattern can be expected to be found elsewhere as well. Programmes and courses on human rights are offered in the departments of philosophy, anthropology and history. Similarly, associations across a wide disciplinary range have established human rights sections, including the American Political Science Association, the International Studies Association, American Sociological Association, American Anthropological Association and countless others (Ishay 2013, p. 66). This multidisciplinarity of the field is also witnessed in the composition of human rights research institutions such as the Danish Institute for Human Rights, where researchers come from a wide range of disciplines, including lawyers, historians, sociologists, development scholars and political scientists. This increasing multidisciplinarity of the field has changed human rights research in important ways. First, and most obviously, it has contributed to an understanding of human rights as something more and other than law. Reflecting a legal positivist understanding of human rights as law – nothing more, nothing less – legal scholarship has historically focused on ensuring and improving the realisation of international human rights law (Sheeran and Rodley 2013, p. 4), providing legal analyses of the scope, hierarchies, interpretation and justiciability of human rights law. Naturally, such analyses are key to furthering our understanding of human rights law; as Nik Tan’s article on international refugee law in the present issue of The Universal demonstrates, there is – now perhaps more than ever – a desperate need for sound legal analysis, clarifying the responsibilities of states under international human rights law. However, a narrow, legalistic understanding of human rights – and consequently, of human rights research as legal analysis – risks overlooking other, equally important aspects of human rights. First, human rights are not solely about law, they are also moral claims based on extra-legal sources of authority, whether a shared sense of humanity, religious doctrines or natural law (Viljoen 2012, p. xiv). Second, even as law, human rights are not solely about legal texts, institutions and processes. While human rights as law are in some way oriented toward changing or applying legal precedent, they are not articulated only within legal texts, institutions or processes (Wilson 2006, p.79, my emphasis), but exist outside the legal field as well – in social movements, literature, 8 | THE UNIVERSAL 2016


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political strategies, education, development aid – shaping and being shaped by political, social, cultural, economic and historical factors and processes. A legal approach tells us little about these extra-legal meanings and functions of human rights. Here, other disciplines have contributed with valuable insights. Challenging the explicit lack of theoretical foundations among the first generations of legal scholarship on human rights, philosophers and political theorists were among the first ‘outsiders’ to engage in human rights research, concerned with identifying the theoretical foundation and justification of human rights (e.g. Gewirth 1982). Social scientists soon followed, albeit taking a radically different approach. Rejecting both the legal idealism and the philosophical foundationalism of earlier human rights research, they were instead driven by a desire to explore and analyse the social realities of human rights. Political scientists and International Relations scholars have provided insights into the political context in which human rights are embedded, directing attention to the mechanisms, processes and meanings at play at national and international levels (e.g. Simmons 2009). Anthropologists have contributed with studies of ”the social life of human rights” (Wilson 2006), shedding light on the subjective experiences of human rights and of human rights violations. Sociologists have directed attention to the social practices that are affected by and affect human rights, asking questions as to the societal effects of human rights (Morris 2006). Historians have carved out the origins of human rights (Moyn 2010, Hunt 2007). Most recently, we have witnessed an increasing interest in human rights in the arts. Scholars of literature, for instance, engage in analysis of the ways in which literary texts represent and in turn contribute to shaping philosophies, laws, and practices of human rights (Goldberg and Moore 2012, p. 2). Second, and closely related to the above, the multidisciplinarity of human rights research has encouraged what we may call a practice turn in the study of human rights. Historically, legal research tended to devote enormous resources to the analysis and reform of human rights law, but rarely investigated systematically whether the law would improve the enjoyment of human rights (Freeman 2012, p. 6). Similarly, the later philosophical discussions of foundations and justifications of human rights offered little in terms of empirical analyses of ‘human rights in practice’ (Goodale & Merry 2007). With the increasing attention to human rights in the social sciences came greater attention to empirical realities. Albeit expressed in different ways, focus-

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ing on different levels and applying different methods, the practice turn in human rights research is characterised by empirical analysis of human rights in practice, asking how and why human rights law is made, by whom it is made, how it is implemented and – just as importantly – why it is not implemented, what the consequences are and how this shapes individual experiences and societal developments. Some – especially political scientists and sociologists – have engaged in large-scale, quantitative, comparative studies of impact and effect, seeking to identify variables to account for variations in the protection of human rights (Simmons 2009, Freeman 2012, p. 11). Others – in particular within International Relations – explore processes of norm construction and diffusion (Finnemore and Sikkink 1998), and the role of transnational networks in promoting human rights norms (Keck and Sikkink 1998; Risse, Ropp and Sikkink 1999). Yet others have focused on more micro-level, qualitative studies of ‘the social life of human rights’ (Wilson 2006), applying anthropological and micro-sociological fieldwork methods to explore the concrete ways in which human rights are produced, contested, and defended by particular actors in particular localities at particular times (Redhead and Turnbull 2011, p. 173; Nash 2012, p. 2). Analysing the ways in which Dalit women conceive of and confront the challenges they are met with when fighting for women’s rights, the article by Boateng et al in this issue of The Universal is a good example of such an approach. Third, researchers increasingly question the normative approach to human rights that has dominated the field of human rights research. Whether motivated by philosophic foundationalism, an emancipatory activist commitment, or legalistic, instrumental and technocratic inclinations, much human rights research has historically been implicitly or explicitly supportive of human rights, and researchers have been driven by a wish to strengthen and promote human rights, whether legally, theoretically or practically. Against this, we have seen the emergence of a more sceptical literature, questioning the fundamental legitimacy and relevance of human rights. Historically, much of this critical human rights research was framed as a criticism of claims to universality. Against those that argued for the universality of human rights, the classic cultural relativist claim was that there are no absolute or universal values by which any culture or society can be judged, apart from those of the culture itself (Goodhart 2003, p. 939; see e.g. Pollis and Schwalb 1979). Today, few subscribe to such stark relativist arguments (Timmer 2013, p. 7), but other, related, kinds of criti10 | T H E U N I V E R S A L 2 0 1 6


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cism of the human rights project have emerged, often inspired by poststructuralist theory. Motivated by a wish to critically examine “the underbelly of the human rights movement” (Mutua 2002, p. ix), scholars criticise the human rights regime for universalizing Western power and values (e.g. Sajo 2004, Douzinas 2000, Asad 2000), for serving as the new basis of power for an undemocratic elite (Scruton 2013), or subordinating female subjectivities (Banda 2005, Knop 2004, Otto 2006), directing attention to alternative remedies for injustice that “other kinds of political projects” may offer (Brown 2004, p. 462). In between the overly, and sometimes uncritically, normative support of human rights and the deconstructivist scepticism and even rejection of human rights, we see attempts at formulating a third position. New currents in human rights research encourage the development of theoretical and analytical frameworks that can apprehend “the ways that human rights are simultaneously enabling and constraining” (Wilson 2006, p. 77). It is, Nash (2012, p. 2) argues, possible to be convinced of the general validity and value of universal human rights and yet be sensitive to the effects of the specificity of their historical and geographical origins and how they are mobilized today. This position necessitates a certain analytical distance (Goodale 2007) or even a Weberian methodological agnosticism. Researchers “can be more sensitive to the vicissitudes of political contestation that take place in the language of rights if they do not assume in advance that human rights are either a governmental ‘ethics of power’ or a grassroots emancipationist ‘weapon of the weak’” (Wilson 2006, p. 77). Such a position does not necessarily leave the human rights researcher detached from the realities of human rights policy and activism. In fact, the careful empirical analysis of the content and consequences of human rights discourses and practices “allows us to evaluate which human rights laws and discourses are more likely to realize certain desired social and political goals, and which might have unintended consequences or even negative outcomes” (Wilson 2006, p. 81). The article by Dihle on street children in Tanzania in the present issue of The Universal is a good example of such contingent commitment. Demonstrating the problematic aspects of the conceptions of street children that underlie contemporary human rights frameworks and approaches, the article argues not for a rejection of these, but lists concrete ideas as to how to improve them. Similarly, Ravnbøl’s article on authenticity shows how the UN Declaration of the Rights of Indigenous People is not unproblematic or straight-forward, but requires a better understanding of “the different ways in which indigenous people around the 2016 THE UNIVERSAL

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world understand, practice, and experience their own identity, culture and traditions” in order to ensure better protection of minorities.

FROM MULTIDISCIPLINARITY TO INTERDISCIPLINARITY? What are the challenges for contemporary human rights research, characterised by a plurality of positions and voices, a focus on practices and empirical realities, and attempts at carving out a space for non-normative positions? Obviously, there are many challenges, but there is one in particular where The Universal can play an important role – the development of interdisciplinary approaches. Despite the burgeoning interest in human rights across a wide spectrum of disciplines, contemporary human rights research is still remarkably compartmentalised. Human rights research, in other words, may be multidisciplinary, but it is far from interdisciplinary. We need philosophical reflections on foundations, legal analysis of laws, critical deconstruction of power relations, social science accounts of the practices of human rights, and activist reminders of the end goal of it all. But in and of themselves, they are not enough. Each misses important aspects of the highly complex phenomenon of human rights. ”Many human rights issues and situations are not singly legal, philosophical, political or sociological but all of those things and more, simultaneously” (Fagan 2003, p. 98). As such, there is a need for interdisciplinary, holistic perspectives, capable of approaching human rights inquiries simultaneously on more than one level of analysis (Ishay 2013, p. 76). A truly interdisciplinary approach to human rights requires more than the existence of different disciplinary approaches; it requires interaction, dialogue and cooperation across disciplines; ”a more radical transgression of disciplinary lines” (Viljoen 2012, p. xx). This is difficult; as academics we are socialised into particular disciplines, and breaking out of these is easier said than done. The disciplinary structures of academia, institutionalised in university departments and policies, professional associations, and academic journals, tend to recognise, evaluate and reward disciplinary achievements over interdisciplinary ones (Freeman 2014), at once encouraging the specialization and compartmentalization of knowledge (Goldberg and Moore 2012, p. 3). Such compartmentalization of knowledge, Goldberg and Moore (2012, p. 3) argue, must 12 | T H E U N I V E R S A L 2 0 1 6


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be disrupted if we are to tackle the complexly interwoven problems accelerating in our new millennium. And human rights is one such complex problem. While disciplinary depth is of course essential for investigating human rights, they also require interdisciplinary translation, integration and synthesis in order to develop more complete and nuanced pictures than would be possible from any one disciplinary perspective (Golding 2009, p. 2). The purpose of such interdisciplinary approaches is not to advance one common ’definition’ of human rights, one common approach or explanatory model. That would be counterproductive to the understanding of human rights as complex, changing, and multifaceted, shaped by and shaping not only law, but culture, identities, politics, history and economy. Instead, the purpose is to facilitate ongoing interdisciplinary conversations and engagement on the different meanings, practices and possibilities of human rights (Goodale 2007, p. 27), and in this process enhance, nuance and adjust existing definitions, approaches and models. Quoting Boix Mansilla and Duraising (2007, p. 219), we can define an interdisciplinary approach as the capacity to integrate knowledge and modes of thinking in two or more disciplines or established areas of expertise to produce analyses and explanations in ways that would have been impossible or unlikely through single disciplinary means.3 New legal realism is a good example of such successful interdisciplinary work. Emerging at the turn of the millennium, this movement seeks to examine law in practice, viewing law as a set of social processes, embedded in historical, political, and cultural contexts. Drawing on insights from law, political science, sociology and anthropology, new legal realism 3  This also entails interdisciplinarity in terms of methods. When we study violations of

women’s rights, for instance, it is equally relevant to engage in ethnographic fieldwork to understand the subjective experiences of the victims as it is to get quantitative data on precisely how widespread violations are (Fagan 2003:98). Historically, there has been a tendency to pit quantitative and qualitative methods against each other. “Indeed, the gap between qualitative and quantitative researchers is so wide that many liken it to a religious or cultural divide,” note Hafner-Burton and Ron (2009:363). Instead, they argue, there is a need for multi-method research: ”Qualitative scholars should devote more attention to statistical findings, situating their case research within global and regional patterns and focusing more self-consciously on problems of research design. Quantitative scholars, for their part, should spend more time in the field or immersed in case study materials and must acknowledge more readily the problems with their data” (Hafner-Burton and Ron 2009:393). For an example, see e.g. Cardenas (2007), interweaving statistical analyses of the effects of human rights pressures on 172 countries with in-depth case studies of Chile and Argentina and mini–case studies of countries in other regions. 2016 THE UNIVERSAL

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explores what law does, “from the ground-level of daily life to the top-level of judges and politicians”.4 Sally Engle Merry, for instance, explores the ways in which legal norms and ideas travel and are adopted around the world, focusing on the international movement against gender-based violence (Merry 2006a).5 Other, more modest examples, are the analyses of national human rights violations produced by the Danish Institute for Human Rights, combining qualitative analyses of violations with rigorous legal analysis to produce nuanced and relevant policy advice.6 Established with the purpose to further “a comprehensive and holistic understanding” of human rights, and inviting students to “an interdisciplinary debate on human rights,” The Universal seeks to contribute precisely to the development of interdisciplinary approaches to the study of human rights. And you are well positioned to do so. Through Think Rights: The Danish Forum for Human Rights, The Universal is part of a larger and very active community of young scholars and practitioners from a variety of different disciplines, universities and organizations. Use this platform. Speak to each other, write responses to each other’s articles and engage in exchange of opinions. Build on each other’s insights, write articles together, engage in common research projects, develop new approaches and methods together. Organise plenary discussions of particularly interesting articles, go to conferences together. And perhaps most importantly – talk to people you disagree with. AUTHOR’S PROFILE Marie Juul Petersen holds a MA and PhD from Department Cross-cultural and Regional Studies, University of Copenhagen. She is a Senior Researcher at Danish Institute for Human Rights. Her research centers on the relationship between human rights and religion. REFERENCES Asad, T 2000, ‘What Do Human Rights Do? An Anthropological Enquiry’, Theory and Event, 4   New Legal Realism Conversations, https://newlegalrealism.wordpress.com/ 5   For overview articles on new legal realism, see e.g. Merry 2006b, Erlanger et al. 2005, or Miles and Sunstein 2008) 6   See e.g. the recent report, Brug af peberspray i danske fængsler og arresthuse, available at http://www.menneskeret.dk/udgivelser/brug-peberspray-danske-faengsler-arresthuse. 14 | T H E U N I V E R S A L 2 0 1 6


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vol. 4, no. 4 Banda, F 2005 Women, Law and Human Rights: An African Perspective, Hart Publishing, Oxford. Boix Mansilla, V & Elizabeth D 2007, ‘Targeted Assessment of Students’ Interdisciplinary Work: An Empirically Grounded Framework Proposed’, Journal of Higher Education, vol. 78, no. 2, pp.215-237. Brown, W 2004, ‘“The Most We Can Hope For. . . “: Human Rights and the Politics of Fatalism’, South Atlantic Quarterly, vol. 103, no. 2-3, pp.451-463. Cardenas, S 2007, Conflict and Compliance: State Responses to International Human Rights Pressure, University of Pennsylvania Press, Phillidalphia. Douzinas, C 2000, The End of Human Rights, Hart Publishing, Oxford. Erlanger, H, Bryant G, Larson J, Mertz E, Nourse, V & Wilson D 2005, ‘Is it Time for a New Legal Realism?’ Wisconsin Law Review, vol. 2005, no. 2, pp.335-363. Fagan, A 2003, ‘Practicing Universality: The Inter-Disciplinary Imperatives of Human Rights’, Human Rights and Human Welfare, vol. 3, pp.95-102 Freeman, M 2011, Human Rights: An Interdisciplinary Approach, Polity. Finnemore, M & Sikkink, K 1998, ‘International Norm Dynamics and Political Change’, International Organization, vol. 52, no. 4, pp.887-917. Gewirth, A 1982 Human Rights: essays on justification and applications, University of Chicago Press, Chicago. Goldberg, ES & Moore AS 2012, Theoretical Perspectives on Human Rights and Literature, Routledge, Abingdon. Golding A 2009, Integrating the Disciplines, Center for the Study of Higher Education. Goodale M 2007, ‘Introduction: locating rights, envisioning law between the global and the local’, in The Practice of Human Rights: Tracking Law between the Global and the Local, eds M Goodale & S Engle Merry, Cambridge University Press, Cambridge. Goodale, M & Engle Merry S (eds.) 2007, The Practice of Human Rights: Tracking Law between the Global and the Local, Cambridge University Press, Cambridge. Goodhart, M 2003, ‘Origins and Universality in the Human Rights Debates: Cultural Essentialism and the Challenge of Globalization’, Human Rights Quarterly, vol. 25, no. 4, pp.935-964. Hafner-Burton, E & Ron, J 2009, ‘Seeing Double: Human Rights Impact through Qualitative and Quantitative Eyes’, World Politics, vol. 61, no. 2, pp.360-401. Hunt L 2007 Inventing Human Rights: A History, W.W. Norton & Company. Ishay, M 2013, ‘The role of interdisciplinary approaches to human rights’, in Handbook of International Human Rights Law, eds N Rodley & S Scott, Francis Taylor, Abingdon. Keck, M & Kathryn, S 1998, Activists beyond Borders: Advocacy Networks in International Politics, Cornell University Press, New York. 2016 THE UNIVERSAL

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Knop, K (ed.) 2004, Gender and Human Rights, Oxford University Press, Oxford. Merry, SE 2006a, Human Rights and Gender Violence, Cambridge University Press, Cambridge. Merry, SE 2006b, ‘New Legal Realism and the Ethnography of Transnational Law’, in Law & Social Inquiry, vol. 31, no. 4, pp.975-995. Miles, TJ & CR, Sunstein 2008, ‘The New Legal Realism’, University of Chicago Law Review, vol. 75, no. 831, pp.831-851. Morris, L 2006, Human Rights and Social Theory, Palgrave Macmillan, London. Moyn, S 2010, The Last Utopia, Harvard University Press, Cambridge. Mutua, M 2002, Human Rights: A Political and Cultural Critique, University of Pennsylvania Press, Phillidalphia. Nash, K 2012, ‘Towards a political sociology of human rights’, in The New Blackwell Companion to Political Sociology, eds K Nash, E Amenta & A Scott, Wiley-Blackwell. Otto, D (ed.) 2006, Gender Issues and Human Rights, Edward Elgar Publishing, Cheltenham. Pritchard, K 1989, ‘Political science and the teaching of human rights’, Human Rights Quarterly, vol. 11, no. 3. Pollis, A & Schwab P 1979, Human Rights: Cultural and Ideological Perspectives, Praeger Publishers. Redhead, R & Turnbull N 2011, ‘Towards a Study of Human Rights Practitioners’, Human Rights Review, vol. 12, issue 2, pp. 173-189. Risse, T, Ropp, S & Sikkink, K 1999, The Power of Human Rights. International Norms and Domestic Change, Cambridge University Press, Cambridge. Sajo, A (ed.) 2004, Human Rights with Modesty: The Problem with Universalism, Brill. Sheeran, S & Rodley N (eds.) 2013, Routledge Handbook of International Human Rights Law, Routledge, Abingdon. Simmons, B 2009, Mobilizing for Human Rights. International Law in Domestic Politics, Cambridge University Press, Cambridge. Timmer, A 2013, State-of-the-art literature review: Human rights, democracy and the rule of law, FRAME report. Available from: <http://www.fp7-frame.eu/wp-content/materiale/ reports/01-Deliverable-3.1.pdf> [8 January 2016]. Verdirame, G 2013, The UN and Human Rights. Who guards the guardians? Cambridge University Press, Cambridge. Viljoen, F (ed.) 2012, Beyond the law: Multi-disciplinary perspectives on human rights, Pretoria University Law Press, Pretoria. Wilson, RA 2006, ‘Afterword to ‘Anthropology and Human Rights in a New Key’: The Social Life of Human Rights’, American Anthropologist, vol. 108, no. 1, pp.77-83.

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CATEGORIZATION AND CONTEXT: TOWARDS AN INTERDISCIPLINARY APPROACH TO HUMAN RIGHTS Nicholas Haagensen, Lisa Haagensen and Ale xander Andersson

1. INTRODUCTION The 20th century was characterized by widespread and horrific human rights violations that spanned the globe and affected millions. While knowledge of these events and the attention they have received by international players has varied, one thing is certain: 20th century abuses have collectively driven human rights to the forefront of current global dialogue (Ferllini 2003). Not only have they played a role in worldwide political change but human rights rhetoric has also become a regular fixture in the language used by activists, NGOs, politicians, diplomats and lawyers. While the subject is generating interest across a variety of academic disciplines â&#x20AC;&#x201C; such as history, law, political philosophy, international relations and sociology â&#x20AC;&#x201C; it is also responsible for widespread challenges amongst students and researchers alike. Fundamentally, a certain degree of academic cloistering abounds where human rights are independently addressed from a number of different perspectives and with a number of distinct approaches (Cesarini & Hertel 2005; and see the foreword in this issue). At its core, The Universal believes that a diversity of perspectives is valuable and can be harnessed to further a comprehensive and holistic understanding of the subject. In order to realize this potential, a more open minded, multidisciplinary and indeed interdisciplinary debate on human rights is required. In light of this, The Universal hopes to create a platform whereby high quality student research on human rights, as well as research by recent graduates, can be publicized. Essentially, by inviting students to an interdisciplinary inter-university debate, we hope to further the standing of human rights within academic scholarship while deepening our insight into its complexities. This first issue of The Universal presents five articles that examine human rights issues from various disciplines and that span different global contexts. As such, taken 2016 THE UNIVERSAL

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together, the articles illustrate the potentiality of both multi-disciplinarity and interdisciplinarity in human rights scholarship; a core concern of this journal. In their own way, each of the five articles speaks to the chosen theme of this issue, namely attribution and categorization. The articles provide unique observations and examinations of these different processes with each revealing the different ways such operations affect the granting and/or denying of rights. In addition, the contributions present comprehensive analyses of the intersection between global understandings and classifications of rights with local dynamics and categories of people. Generally, to a greater or lesser extent, each addresses the ways in which the attributions and identities of certain groups render them categorized, the ways in which ascriptions and membership within these categories have certain local and global human rights implications, and the ways in which those implications impact the local strategies chosen to address domestic contextual experiences. Whether categorization processes (and their subsequent ramifications) are examined with regard to the Dalit class in India or street children in Tanzania, the contributions reveal how classification within distinct groups has contextual dimensions. Such classification is shown to not only affect the strategies selected by categorized groups to fight for their human rights, but to also have broader implications when those contextually-grounded groups are confronted with global understandings of their identities. In the overview below, we begin by presenting the reader with a discussion and analysis of the chosen theme: categorization and attribution. Herein we discuss the dimensions of categories, identity and the inequalities that arise henceforth, discussing their relevance to the study of human rights. Following, and in keeping with our proposed attribution and categorization framework, we present a thematic reading of the articles in which five basic conjectures are drawn and the different analytical levels they concern are discussed. Finally, the editorial concludes with a discussion on how interdisciplinary research can be taken further.

2. CATEGORIZATION AND ATTRIBUTION While the existence of collective identities is in no way a recent phenomenon, the impetus to categorize those identities, especially with regards to public life, can be closely linked to the development of the modern state (Kertzer & Arel 2001). As it

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evolved, the modern state, and elites within such developing structures, increasingly required a means through which to navigate society and make it coherent. The categorization of populations across pre-existing and fluctuating identities constituted this mechanism: a mechanism through which people become comprehensible through the categories in which they are confined (ibid.). However, the founding fathers of the nation-state did more than simply observe their populations and create depictions and maps based on such observations; they also sought to construct both the landscape and the people within (Scott 1998, p. 82). As noted by Scott, the more static, standardized and uniform a population or social space is, the more legible it is, and as such the more amenable to the techniques of state officials (ibid.). Importantly, systems of categorization by official agents do not only resemble mechanisms through which to facilitate the legibility of the environment; they are an authoritative order to which the population must abide by. Public diversity and the presence of cultural minorities represent a major obstacle to the modern nation-stateâ&#x20AC;&#x2122;s attempts to categorize their populations into static and uniform masses (Appaduarai 2001). Specifically, following the end of WW2 and the creation of the United Nations, laws and rights connected with organized cultural and social minorities gained ground in national and international circles. As a result, concern related to the rights of these minority groups triggered widespread conflict in the areas of equality, political representation and participation, citizenship, and justice (Appadurai 2006). During this period, minorities came to be seen as potential petitioners for a variety of real rights relating to the institutional spaces and practices controlled by the state (Appadurai 2006; Appadurai 2001). As a result, there was a â&#x20AC;&#x153;transfer of normative value from procedural minorities and temporary minorities to substantive minorities, which often became permanent social and cultural collectivitiesâ&#x20AC;? (Appadurai 2006, p. 64). In light of this process, and especially during the 1980s and 1990s, cultural minorities embraced their identity classifications and used globalized human rights vocabulary to pursue their own human rights claims. The problem here, and to which Anthony Chase refers to in the proceeding interview, is that while efforts to classify and grant legitimacy to the rights of people based on particular static categories is well intentioned, it can hamper identity fluidity, reinforce separation and reinforce the power dynamics between the state and the group as well as the global and the local. It

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is therefore important to include these operations of categorization and the dichotomies they perpetuate in the scope of the research because of their ability to affect the power relations between groups, individuals and states, and the degree to which human rights are granted or violated. In light of these power dynamics inherent in operations of categorization, we turn to the work of Charles Tilly, who, in his book Durable Inequality, argues that “[l]arge, significant inequalities in advantages among human beings correspond mainly to categorical differences such as black/white, male/female, citizen/foreigner, or Muslim/ Jew, rather than to individual differences in attributes, propensities, or performances” (Tilly 1998, p. 7). When it comes to more elaborate categorical systems of religion or ethnic groups, there is a tendency toward “bounded pairs relating to just two categories at a time, as when the coexistence of Muslims, Jews, and Christians resolves into the sets Muslim/Jew, Muslim/Christian, and Jew/Christian, with each pair having its own distinct set of boundary relations” (ibid.). Such classifying operations resolve organizational and institutional issues and become durable overtime, thereby repeating themselves in different organizational and institutional settings. These functional operations constitute “systems of social closure, exclusion, and control” (ibid.). Subsequently, different groups, some of whom are powerful and others less so, become invested in the solutions (Tilly 1998). This can be seen in the institutions of the sovereign state and the ways citizens of different categories obtain advantages or disadvantages. A notable example is apartheid South Africa, where categorization occurred according to race. Based on such classifications, individuals were either segregated and hugely disadvantaged, or – in the case of ‘white’ South Africans – benefited enormously. A significant category in a more transnational context is that of the ‘refugee’. According to the United Nations High Commissioner for Refugees, the term ‘refugee’ refers to a person who is compelled to “move if they are to save their lives or preserve their freedom. They have no protection from their own state – indeed it is often their own government that is threatening to persecute them” (UNHCR 2016). When examining the category of refugee, Peter Nyers (2006) has noted that the categorization of a person as a refugee augments the sovereign state (Betts 2009). Drawing on Michel Foucault (1978) and Giorgio Agamben (1998), Nyers (2006) asserts that refugees represent ‘bare life’ or that which is excluded from the sovereign state, and the citizen is 20 | T H E U N I V E R S A L 2 0 1 6


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thereby that which is included. In this nation-state sense they are essentially ‘categoryless’. Therefore, as a non-citizen, the refugee represents the foundation on which the sovereign state and its citizens are constituted. This results in humanitarian solutions being “implicated in the conditions that make the problem possible in the first place.” (Nyers 2006: 22 quoted in Betts 2009: 74). The contributions comprised in this issue present the reader with several different categorical systems, classifications, and the local, national and global implications involved. Each system reveals variations in durability: from the formal international law governing refugee status and responsibility, to the caste system in India, to indigenous groups in Taiwan, to street children in Dar es Salaam. These different contexts further illustrate the “historically accumulated understandings, practices, and social relations already attached to a given set of distinctions” (Tilly 1998: 12). An implication of categories and categorizing is the notion of identity. In Identity and Control (1992 2008), Harrison White brings together language, temporality and social relations in his conception of how identity arises: “Identities trigger out of events – that is to say, out of switches in surroundings – seeking control over uncertainty and thus over fellow identities” (White 2008, p. 3). Identity is therefore obtained through the constant shifting between contexts, back and forth. Narrative is central here in giving coherence to identities vis-à-vis other identities and events. In the contributions, events such as refugee migration, running away from home, and revitalizing indigenous cultural practices give rise to diverse identities, which are embedded in narratives that detail these events. Such a pluralist conception of identity correlates with our expert interview in which Chase describes the tensions and dynamics related to identity in the context of human rights. For example, one can talk about the tensions that arise between conceptions of fixed identities on the one hand, and identity fluidity, identity multiplicity, and intersectionality on the other. More importantly, however, Chase emphasizes that human rights scholarship, and human rights more broadly, must take these multiple conceptions of identity, and indeed multiple identities, into account. In summary, a focus on local contexts and their embedded social relations allows for the delineation of processes of attribution and categorization. With regard to human rights scholarship more broadly, by examining categorization and attribution from a contextual perspective one is not only able to unpack the complex sets of local 2016 THE UNIVERSAL

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and global relations that engender situations where human rights are at issue. One is also able to gain more robust and holistic understandings of the ways in which human rights are championed both internally and externally. The articles presented here provide the reader with a multidisciplinary transnational portrait of such categorization and attribution mechanisms, thereby taking a step in furthering our understanding of and appreciation for the complexities that abound in the local and global field of human rights.

3. CATEGORIZATION AND HUMAN RIGHTS By situating the contributions into the above discussion, we have been able to posit some basic conjectures that are illustrative of this approach:

3.1 PROCESSES OF ATTRIBUTION AND CATEGORIZATION ARE INFORMED BY NUMEROUS LOCAL AND GLOBAL CONTEXTUAL ELEMENTS.

Given the diverse content of cultures and countries globally, there are a myriad of ways in which attribution and categorization may occur. In this issue, Kristian Ravnbøl looks at the ways in which the revitalisation of indigenous cultural rituals by the elites of the Taroko tribe in Taiwan raise questions regarding what can be deemed culturally “authentic”. For example, local people of the Taroko tribe attributed the term ‘inauthentic’ to revitalised practices such as the performance of a headhunting ritual. In ‘De-casteing India’, Boateng et al. examine the ways in which Dalit women’s rights groups employ various strategies to tackle different levels of caste-based discrimination in India. As expanded upon in the article, these challenges are related to religion, family, community and institutions/the state.

3.2 CATEGORIZATION AND ATTRIBUTION LEADS TO THE RECOGNITION OR DENYING OF RIGHTS.

In the case of Dalits, the subjects are categorized on the basis of the caste system and attributed with ‘untouchability’, which leads to systemic discrimination as well as other human rights violations. In contrast, Ravnbøl’s article shows the ways in which 22 | T H E U N I V E R S A L 2 0 1 6


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the recognition of being part of an indigenous group can grant certain rights such as government subsidies. The articles by Nik Tan and Clara Iglesias Rodriguez both touch upon how the categorization of people crossing international borders – either as migrants, asylum seekers or refugees – do not only determine which rights they are entitled to but also which state is responsible for protecting their rights and accountable for the violation of their rights.

3.3 CATEGORIES AND ATTRIBUTIONS PLAY DIFFERENT ROLES IN THE STRATEGIES EMPLOYED BY THE CATEGORIZED SUBJECTS THEMSELVES.

The strategies used by the Dalits to counter caste-based discrimination is characterised by attempts to transform the perception of Dalits, which in turn transforms the attribution connected to the Dalit category itself. The challenges they face are addressed by adopting different strategies, for example, a human rights approach is employed to tackle the religious context so as to avoid being accused of blasphemy, while as to ease the pressure on men as sole breadwinners, the women are offered credit and banking facilities at low interest within the family context; and joining forces with international organizations is sought on the institutional level so as to increase pressure on the state to protect Dalits’ human rights. In Ravnbøl’s article, the identity attributed to the Taroko is celebrated as a means through which to achieve certain rights. Consequently, for some Taroko the strategy employed seeks inclusion into the category of the indigenous group through revitalization of rituals.

3.4 LOCAL, SUBJECTIVE IDENTITIES AND GLOBAL, OBJECTIVE CATEGORIES DO NOT ALWAYS CORRESPOND.

Kamilla Falsted Dihle’s article illustrates the tensions that arise when Tanzanian street boys’ self perception of themselves and personal experiences as independent and self-supporting members of their own community come into contact, and indeed conflict, with global understandings – as outlined in the Convention of the Rights of the Child – of children as vulnerable and in need of protection. So where global objective categorizations, and the identities they furnish, are rejected by the Tanzanian street children and experienced as unhelpful, the Dalit women’s groups embrace inter2016 THE UNIVERSAL

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national comprehensions of human rights and as such seek the help of Civil Society Organisations in advocating those rights.

3.5 CATEGORIES OCCUR AT DIFFERENT LEVELS OF ANALYSIS.

Where the articles by Boateng et al., Dihle, and Ravnbøl examine the contextual dilemmas of categorization and attribution at local levels, Tan and Rodriguez present examinations that extend to global level ramifications of belonging to defined categories. In ‘Who is Responsible for Asylum Seekers in Offshore Detention?’, Tan provides the reader with a thorough account of the death of asylum seeker Reza Barati and the international legal mechanisms governing offshore detention centres at the transnational level. In his legal analysis, Tan illustrates how belonging to the category of ‘asylum seeker’ has implications that are not merely critical and influential at a local level but also extend transnationally to envelope and affect players on an array of levels and in a multitude of contexts. In keeping with this focus on international-level dimensions, Rodriguez’s case study, ‘Transnational Migration in a Cosmopolitan World’ assesses the Melilla and Ceuta border fences between Morocco and Spain, built by the Spanish to discourage immigration into the European Union. The article illustrates the ramifications that arise when categories themselves are rendered irrelevant. In prohibiting the refugee, the migrant, the asylum seeker from physically accessing borders, the Spanish and Moroccan authorities create a contextual situation whereby the individual or group is left ‘category-less’. Rodriquez’s response to this is one that materializes on a global-level by advocating for immigration to be regulated by inclusive common international legislation as opposed to that of the nation-state being entered.

4. WHERE TO GO FROM HERE? To conclude, this inaugural issue of The Universal not only presents five different cases of human rights issues illustrating diverse contextual and epistemological renderings; it also suggests the potential for multi-disciplinary and inter-disciplinary research in human rights. To substantiate this claim, we draw on a diverse range of literature to illustrate how they are relevant for human rights and how these literatures relate 24 | T H E U N I V E R S A L 2 0 1 6


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to the contributions. We proceeded by presenting a basic interdisciplinary analytical framework based upon the contextual dimensions involved in the mechanisms of categorisation and shifting identities. Here we theorised five conjectures that specifically relate to the contributions in this volume. These conjectures demonstrate a number of ways in which human rights scholarship spanning disciplines such as law, anthropology and philosophy can be directly related through an extended focus on categorization, attribution, identity and context. It is our hope that our attempt to create a multidisciplinary platform for inter-disciplinary discussions and perspectives on human rights will inspire further scholarship in this direction. In light of these aspirations, possible future avenues towards multidisciplinary and interdisciplinary human rights research need to start in the classroom. For interdisciplinary work to become more than just a catch phrase, we need to see more interdisciplinary-designed human rights courses in universities that approach and teach human rights from a multitude of disciplinary theoretical understandings and methodological approaches. This educational pillar should in turn be supported by the publication of more interdisciplinary human rights work by those leading and defining the field. In addition, greater engagement in interdisciplinary debates on current human rights issues needs to be prioritised by scholars, practitioners and public officials alike. In sum, by working towards creating an accessible space from which to participate in interdisciplinarity, The Universal hopes to make a start in achieving these objectives and, as such, in facilitating more holistic conceptions of how human rights manifest across all levels.

AUTHORâ&#x20AC;&#x2122;S PROFILE Nicholas Haagensen holds a BSc in Business Administration and Sociology from Copenhagen Business School (CBS) and is a master student at International Business and Politics at CBS. He is working as a student research assistant at Department of Business and Politics at CBS and is an editor at The Universal.

Lisa Haagensen holds an MSc in Political Science from University of Amsterdam and is master student in Development and International Relations/ Global Refugee Stud-

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ies at Aalborg University. She is a research and development student assistant at the International Rehabilitation Centre for Torture Victims, a board member at Think Rights and an editor at The Universal.

Alexander Andersson holds a BSc in International Development Studies and Social Science and an MSc in Public Administration from Roskilde University. He is the chairman of Think Rights and editor-in-chief at The Universal and is working as an evaluation consultant at The Capital Region of Denmark.

REFERENCES Agamben, G (1998) Homo Sacer: Sovereign Power and Bare Life. California: Stanford University Press. Appadurai, A 2001, Cultural Rights as an Enabling Environment for Cultural Diversity,,Echoing Voices, UNESCO, pp.1-40. Available from: <http://www.unesco.org/culture/aic/echoingvoices/index.php>. [1 February 2016] Appadurai, A 2006, Fear of Small Numbers: An Essay on the Geography of Numbers, Duke University Press, Durham Betts, A 2009, Forced Migration and Global Politics, John Wiley & Sons. Cesarini, P & Hertel, S 2005, Interdisciplinary Approaches to Human Rights Scholarship in Latin America, Journal of Latin American Studies, vol. 37, no. 4, pp.793-809 Ferllini, R 2003, ‘The Development of Human Rights Investigations since 1945’, Science & Justice, vol. 43, no. 4, pp. 219-224 Foucault, M 1978 The History of Sexuality, vol. one. Pantheon Books, New York. (trans. Robert Hurley). Kertzel, D & Arel D 2001, Politics of Race, Ethnicity, and Language in National Census, Cambridge University Press, Berkeley Nyers, P 2006, Rethinking Refugees: Beyond States of Emergency, Routledge, New York. Scott, JC 1998 Seeing like a State: How Certain Schemes to Improve the Human Condition Have Failed, Yale University Press, New Haven: Tilly, C 1998, Durable Inequality, University of California Press, Berkeley White, H. C 1992, 2008, Identity and Control: A Structural Theory of Social Action. Princeton: Princeton University Press. United Nations High Commissioner for Refugees (UNHCR) 2016, Flowing Across Borders. Available from: < http://www.unhcr.org/pages/49c3646c125.html> [12 February 2016]

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NEW FRONTIERS OF HUMAN RIGHTS SCHOLARSHIP INTERVIEW WITH ANTHONY CHASE, PROFESSOR, DIPLOMACY AND WORLD AFFAIRS, OCCIDENTAL COLLEGE by Lisa Haagensen

LISA HAAGENSEN:

What is the most important new development in human rights scholarship?

ANTHONY CHASE:

First, that such a scholarship exists: there’s a tradition of human rights as being separate from scholarship, something to be commented upon, but not that there be a human rights scholarship in and of itself. I think that’s developed in the last few years. Previously, that really only existed within law and within international relations, but I think increasingly there’s scholarship in any number of disciplines. Second, not just that a human rights scholarship exists, but that it exists in any number of disciplines. If you look at the literature that’s out there in history, in sociology, in anthropology even, a decade ago there wasn’t substantial work being done on human rights in those various disciplines. A third new development is not just multidisciplinarity but the increasing interdisciplinarity of human rights scholarship. This is the new frontier and, to me, is probably the most exciting place where human rights scholarship is going. Not just that human rights has integrated itself into any number of disciplines but that there is an increasing amount of conversation among and between those disciplines. Perhaps more specifically, the most interesting thing that’s coming out of human rights in academia is an increasing focus on human rights at the local level – i.e., how they come to be used as a tangible tool in the struggles of different groups in different parts of the world. This seems to be coming out of a spread of human rights into different disciplines and that many of those disciplines focus on how human rights have 2016 THE UNIVERSAL

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been translated into the vernacular of local languages, as opposed to a singular global language.

LISA HAAGENSEN:

Why are academic disciplines moving towards a greater focus on human rights?

ANTHONY CHASE:

Academia prides itself as being on the cutting edge, but in this case was behind the realities of local politics around the world. It became very difficult, however, to justify ignoring the ways in which human rights are being invoked at the United Nations, transnationally, within states, and in local struggles. There was a sort of cognitive dissonance between the academic assumption of the irrelevancy of human rights, and the reality where many peoples were speaking the language of human rights.

LISA HAAGENSEN:

Why is it that interdisciplinary research is so important with regards to human rights? ANTHONY CHASE:

I’m from the discipline of international relations, but how my work has been impacted by work going on in history on human rights is an example of why Interdisciplinarity can be productive. Samuel Moyn, Jean Quataert, Steven Jensen at the Danish Institute of Human Rights are some of the historians who have talked about how human rights has developed in ways that run counter to the common assumed historical chronology. I think we’re all familiar with the common assumption that human rights come out of the Enlightenment or that they were a reaction to the Holocaust at the end of World War Two. Both of these examples have elements of truth. However, Samuel Moyn, in particular, has been very persuasive in arguing that these supposed “foundations” were nothing of the sort; that, to the contrary, through the 1940s, 1950s, and even in the 1960s human rights did not have a tangible place in global politics. There were a few irrelevant human rights declarations and attempts to 28 | T H E U N I V E R S A L 2 0 1 6


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develop some instruments that didn’t have much impact. From my international relations perspective, this has had a very powerful impact on my own work. We should not assume – as is often done within IR -- that human rights have always existed as were institutionalized as we have come to know them immediately after WWII. Rather, we should question and break down how it is that they have developed in the context of events in the 1960s and 1970s and subsequently. My point, in terms of an answer to your question, is that research in a discipline such as my own has been very much enriched and deepened by virtue of borrowing from historians such as Moyn or Quataert or Jensen. Importantly, I would also flip the critique. Yes I have been influenced by Samuel Moyn and his metaphor of a chemical reaction model of human rights – i.e., that they have exploded onto the scene later than usually recognized out of a number of unforeseen and unpredictable elements. However, I also think that, in his book The Last Utopia, there is a way in which Moyn ignores the political-legal elements of human rights and only focuses on the normative. Consequently, while he is very strong in terms of the normative development of human rights, I think his failure to take into account its political-legal foundations distorts human rights, as when he sees them as a utopian successor to failed ideologies such as nationalism or communism. It strikes me that when he poses human rights as the new utopia -- the ‘last utopia’ -- he is missing the ways in which human rights are not so much an ideology but, rather, an anti-ideology; less singularly revolutionary than attempting to give reformist tools relevant to the struggles of peoples in different contexts. Human rights work through states in ways that are often problematic. Human rights work through international organizations, again in ways that are often problematic and deeply compromised. In essence, Moyn misses how it is that human rights are deeply embedded in systems of power rather than a utopian ideal. My point, therefore, is that he could also benefit from borrowing from other disciplines -- legal disciplines, IR (international relations), etc. -- which research more deeply the political-legal realities of human rights, how they inform struggles, how they are compromised, how they politically and legally evolve and that sort of thing. So, in short, the ways in which a historian like Moyn and some of his compatriots have impacted other disciplines is an example of the positive impact of interdisiplinarity; on the flip side, I’d suggest that Moyn could also benefit from borrowing from other disciplines -- a second example of the positive impact of interdisciplinarity. 2016 THE UNIVERSAL

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INTERVIEW LISA HAAGENSEN:

In terms of your own work, which addresses an anti-foundation of human rights, how does that lend itself to interdisciplinary possibilities? What interdisciplinary focus helped that conceptualization of the anti-foundation of human rights?

ANTHONY CHASE:

In terms of my own notion of anti-foundationalism, in a certain sense it starts with a kind of commonsensical idea that we need to move beyond the stale universalism versus cultural relativist debate in order to explore a more essential question: why do people adopt the language of human rights, which is not natural to any political grouping in any part of the world? To pursue this, I began to borrow from people from different disciplines – the philosopher Richard Rorty, for example, already has a notion of anti-foundationalism in his work. Rorty means something different by it than I do, but my work is informed in some sense by Rorty’s idea of sentimentalism as key to how peoples become embedded in a narrative of human rights. What I would also point to in terms of interdisciplinary impact is queer theory, and the idea of identity fluidity that questions the certainties of the fixed identity. Momin Rahman is someone I have been reading recently from a queer theory perspective. He emphasizes the intersectionality of identity in a way that plays into the notion anti-foundationalism. If human rights are to be relevant to peoples in different positionalities around the world they [human rights] need to recognize and be informed by that multiplicity of identity.

LISA HAAGENSEN:

Given this multi-foundational, multiplicity of identity, is there any way in which human rights can be applicable to all – if we are coming from a completely varied and dynamic grounding?

ANTHONY CHASE:

Yes and no. No in the sense that I don’t think any inherent universality of human 30 | T H E U N I V E R S A L 2 0 1 6


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rights exists. It isn’t that there’s one tradition that is relevant to all peoples. So in that sense I would try to move beyond universality in a moral or cultural sense. In a political sense, however, one can broadly say that human rights are relevant to virtually all peoples in virtually all societies around the world. 99.9 percent of peoples in this world live under a state authority for better or for worse, and human rights are about a limit on the power of the state over both individuals as well as social groups. So as long as one is embedded in some sort of relationship with the state, there is an inevitable relevance of human rights. Therefore, while I would shy away from the language of universality as such, which implies a kind of moral connection; I do think our political situations place virtually all of us in a position where human rights in some sense have relevance. Then it’s a matter of how relevant are they? Are they a powerful tool or are they an irrelevant tool? Again, I don’t think there’s any inherent answer telling us that human rights will necessarily be a tool that makes sense to the struggles of African-Americans in the United States, indigenous peoples in Peru, or name any other particular intersection of societal groupings and state power. But certainly human rights seem to be seen as increasingly relevant by such societal groupings subject to state authority. As an American I can point to recent events in this country coming out of Ferguson, where human rights are increasingly invoked despite our rather insular traditions in which human rights have been somewhat distant from domestic social movements. Another example of human rights expansion is indigenous peoples in Latin America. Such indigenous groups have traditionally been excluded from a human rights purview, yet increasingly we can ask what is the relationship between indigenous groups and the state. It has often been relatively contentious, thus it’s not surprising that many indigenous groups have been speaking the language of human rights, adopting human rights as a tool to empower themselves in their relationship to the state. So, while I would shy away from a notion of universality, I do think there is a reason why [human rights] are globally relevant.

LISA HAAGENSEN:

The theme uniting the articles within this issue is the operation of categorization and attribution: specifically the ways in which different modes of attribution lead to the categorization of subjects and the mechanisms that address social and organizational political issues. When addressing the umbrella of human rights, categories and 2016 THE UNIVERSAL

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categorization is often used as an institutional instrument – a tool of suppression when classifying various groups to be discriminated against, or a technique to simplify and manage populations, or an instrument to protect minorities. We attribute and categorize populations. How can we reconcile this double-sided operationalization? Where, on the one hand, it facilitates discrimination and on the other it assists the process of minority protection. Is there a balance, and how do we navigate it with regards to human rights?

ANTHONY CHASE:

That is a tough question, a really interesting question. First of all, to reiterate, I do think that there has been a real issue within human rights discourse, precisely in the ways that you just described. There’s been an attempt to identify and empower people according to certain fixed categories of identity in human rights. However well intentioned, the danger is this can also fix and reify identities in ways that could be problematic. Thinking in terms of the Muslim world, Shia and Sunni identities used to be much more fluid but now, partly because of a state-based project to identify people according to certain ascriptive categories or identities, we see reinforced a separation and hierarchy of identity in ways that breakdown the abilities of groups to live with each other. Human rights, as elaborated primarily by states (even as they are meant to be a limit on states), have often adopted those same categories in ways that are problematic. Second, this intersects with a semantic debate among those working on sexuality about proper terms: L.G.B.T.Q.I; S.O.G.I – sexual orientation gender identity; S.O.G.I.E – sexual orientation gender identity and expression. At a certain point in time, in an attempt to be inclusive, there was use of the term sexual minorities. Rosalind Petchesky critiqued that very strongly on the basis (implicit in your question) that adopting a language of minority fixed lesbians or gay men or intersex in problematic ways, including that they are necessarily a monolith separate from the majority, rather than intersecting in complex ways with numerous identities. I very much see how ‘sexual minorities’ is a problematic term. At the same time, however I also think – drawing from the language of Arjun Appadurai and the ways in which states often demonize minorities and create minorities in order to reinforce their own power – that there’s a certain power in accepting that term ‘minority,’ i.e., despite whatever differences and 32 | T H E U N I V E R S A L 2 0 1 6


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diversities, being part of a group that is subject to marginalization by majoritarian ideas of authority and power.

LISA HAAGENSEN:

Often these categories, or the groups themselves that are being categorized, use their categorizations or descriptive identities to further their own human rights agendas. However, the imposition of such labels/identities from the outside may be unwanted or unhelpful. Specifically with regard to this journal issue, two of the articles illustrate this dichotomy. One article addressed the Teroko in Taiwan who used their categorization to fight for certain rights. Another, based on research in Tanzania, examined the somewhat unhelpful external implementation of the Convention on the Rights of the Child onto a group of street children, which illustrated the conflict that can arises when a more Westernized, abstract understanding of human rights comes up against a more contextualized local-level reality of human rights. How do we reconcile this dichotomy?

ANTHONY CHASE:

I think that’s a question that gets us back to an anti-foundational notion of human rights. It seems to me the question about human rights should not be if they fit into a universal culture, but rather to what degree are human rights owned by the groups they’re attempting to empower? This recognizes that human rights are both a tool of struggle but also a site of struggle. In terms of more impact or less impact it seems to me that the variable at play is the degree to which human rights are or are not owned by those peoples engaged in struggles to which human rights language could be relevant. You gave one example among many possible examples of international organizations or states “giving” human rights from the top down, and then being surprised when the beneficiaries don’t seem to appreciate it. Conversely, there are other examples of peoples seizing the language of human rights, reinterpreting the language of human rights, and thereby making that language more relevant to their particular social struggles. That’s when human rights work. That’s when human rights are empowering as that’s when there’s an embrace of human rights from the bottom up. So it seems to me that regarding the pros and cons of categorization -- the pros and cons 2016 THE UNIVERSAL

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of who’s doing the categorizing in a certain sense -- that one has to be open to the ways in which human rights can be re-envisioned and such categories rethought. This also means allowing for a re-envisioning of identity and allowing new identities into that framework – i.e., in terms of our previous discussion [of ] SOGI-related rights, allowing them into the framework. Very much along the lines of that conversation, if those groups are rejecting a singular notion of identity in favor of more fluid notions of sexual identity then I think that also has to be welcomed. And that’s one of the positive elements of the engagement with human rights from groups working on sexuality: that many have insisted that sexual minorities, to use that phrase, need human rights protections, and that they are subject to systemic human rights violations; however, at the same time, to make human rights more relevant to diverse members of such groups human rights need to be re-envisioned in ways that reject a simplistic categorization of identity and allow for a more pluralistic idea of identity. LISA HAAGENSEN:

Does the operation of attribution and categorization have a place today, especially with regards to human rights? There seems to be a growing trend to do away with descriptive identities, like gender for example. Is this indicative of a general trend towards vanquishing categorization all together? ANTHONY CHASE:

I very much support greater recognition of pluralistic rather than singular identities – the human rights regime should not be reinforcing the inscription of identities on peoples. This is not to deny, however, that peoples still identify themselves according to certain identities and sometimes quite powerful with a single identity, particularly when that identity is subject to attack. I don’t think one could or should ignore that. People do, in fact, have their human rights violated on the basis of their gender identity, on the basis of their ethnic identity, on the basis of their ideological identity. So, as far as that exists those [singular identities] are going to be relevant and cannot be ignored out of some sort of abstract academic notion that we need to move beyond them. I think we can both recognize the relevance of singular identity formations and, at the same time, recognize the overarching multiplicity of identities and work toward greater recognition of that multiplicity. 34 | T H E U N I V E R S A L 2 0 1 6


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LISA HAAGENSEN:

Do you have any practical suggestions on how we can get a more nuanced, more re-envisioned way of approaching this from say a more pragmatic legal sense? How do we nuance our instruments to accommodate this understanding?

ANTHONY CHASE:

I wish I had a great answer to that, but I don’t. From an academic perspective, it goes back to our conversation about interdisciplinarity: I would hope this can inform a more nuanced, multiple conceptualization of the human rights regime’s foundations. One element of this, you’re absolutely right, is legal instruments in which international human rights are grounded. A second element is institutions – state institutions as well as international organizations and transnational groupings – that integrate human rights into everyday policymaking. It is essential to include the legal and the institutional in any conceptualization of human rights. At the same time, the political and normative are third and fourth elements that have to be taken into account. Human rights need to constantly be reinvented and revived and this is done through political contestations and normative changes – redefinitions in those contexts are essential. Being in tune to the dynamic of those four foundations and how they intersect in ways that can be complementary or contradictory is key. Again an example drawn from sexual orientation and gender identity related rights could be helpful, thinking now of the United States under Obama and the UK under David Cameron making respect for the rights of LGBTQ populations part of their foreign policy. In some sense I’m clearly sympathetic and this has been part of the momentum toward developing SOGI-related legal instruments and greater institutionalization in policy-making of SOGI. On the other hand, however, I think there’s no doubt that the whole dynamic of U.S. and U.K. sponsorship is extremely problematic because it revives a notion of human rights as a top down gift from great powers. In a normative sense that’s going to be counterproductive, displacing the grassroots activist work on these issues over the past decades across the globe in favor of identifying SOGI with Western power. In a political sense, this risks empowering those most opposed to LGBTQ rights and 2016 THE UNIVERSAL

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SOGIE-related rights. And so it isn’t that I am opposed, per se, to those policy initiatives by the U.S. and the U.K, but one can recognize how they’re most likely counterproductive, and therefore are something that should be looked at skeptically in a political sense. I think that this is one way that the academic conversation we have had can help us practically understand which sort of policies to support or not. Even policies that in some abstract moral sense seem fine can be problematic when one takes into account predictable political and normative backlashes, resulting in a recognition that such policies are likely to be counterproductive in reality.

AUTHOR’S PROFILE Anthony Chase is a professor at Diplomacy and World Affairs, Occidental College in Los Angeles, California. His research and teaching interests focus on human rights, the work of international organizations, and the politics of the Middle East and the broader Muslim world. Lisa Haagensen holds an MSc in Political Science from University of Amsterdam and is master student at Global Refugee Studies at Aalborg University. She is a student assistant at the International Rehabilitation Centre for Torture Victims, a board member at Think Rights and an editor at The Universal.

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THE REVIVAL OF TAROKO HEADHUNTING RITUALS IN TAIWAN

THE REVIVAL OF TAROKO HEADHUNTING RITUALS IN TAIWAN AUTHENTICITY, IDENTITY, AND INDIGENOUS RIGHTS Kristoffer R avnbøl

ABSTRACT During the latter half of the 20th century, indigenous communities worldwide began to organize themselves politically in order to demand indigenous rights, recognition of ethnic identities, and reclaim lost land. In accordance with this political organization, many indigenous groups have made an effort to revitalize their old cultural traditions. To portray the authenticity of the indigenous Taroko tribe to the dominant Han society, and thereby gain government funding, Taroko elites revitalized headhunting rituals in 1999. However, many local Taroko felt that these new rituals were not only disconnected from traditional Taroko beliefs but also from contemporary Christian Taroko lifestyles. This article focuses on authenticity in the revitalization of Taroko headhunting rituals and shows how different understandings of authenticity between Taroko elites on the one hand and local Taroko on the other created tension in contemporary Taroko communities. However, rather than focusing on the new rituals as ‘fake’ or reinvented performances by elites, this article employs a practice-orientated approach to analyse the ways in which the new rituals reinforced local Taroko identity. Ritual practices and symbols, despite being reinvented or non-authentic, still had an affect on ordinary people’s experiences of being a Taroko. This provides us with important insights into the relationship between authenticity and identity in the revitalization of traditions for obtaining indigenous rights. Furthermore, it allows us to move beyond simplified dichotomies of culture, traditions and identity as authentic/ inauthentic or modern/traditional, in favour of focusing our attention on what authenticity actually means to ordinary people in the revitalization of cultural practices in indigenous communities.

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UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLE 2007: “INDIGENOUS PEOPLES HAVE THE RIGHT TO PRACTISE AND REVITALIZE THEIR CULTURAL TRADITIONS AND CUSTOMS. THIS INCLUDES THE RIGHT TO MAINTAIN, PROTECT AND DEVELOP THE PAST, PRESENT AND FUTURE MANIFESTATIONS OF THEIR CULTURES.”

(United Nations 2007, p. 6)

1. INTRODUCTION In the early 1990’s, Taiwan witnessed a cultural and political reorientation as the Island began to differentiate itself from Mainland China (Rudolph 2008, p. 1). In this way, the indigenous population of Taiwan not only became a symbol of Taiwan’s nonChinese origins but also of Taiwan’s commitment to the development of democracy and universal human rights as espoused by the outside world (Rudolph 2008, p. 205). Within this new political climate, indigenous groups were not only able to apply for government funding for cultural revitalization but they were also able to claim rights that had been suppressed for centuries (Rudolph 2008, p. 6-7). Consequently, in 1999, Taroko elites1 began organizing revitalized headhunting rituals so as to convince the Han-society2 of the their tribe’s authenticity, which would in turn qualify them for government subsidies (Rudolph 2008, p. 9). However, their efforts were met with scepticism from many ordinary Taroko, who felt that the new rituals were not only ‘fake’ but also solely motivated by the elite’s political purposes (Rudolph 2008, p. 9,21). The United Nations Declaration on the Rights of Indigenous People (UNDRIP) was passed in 2007, and under Article 11.1 it states: “Indigenous peoples have the 1   I follow Rudolph and take the Taiwanese use of elites, which includes people with significant influence on society, politicians, local leaders, elders, and intellectuals (Rudolph 2008, p. 21). When using elites alone, I refer to Taroko elites and not Han-Taiwanese elites. 2   In this essay, ‘Han’ refers to ‘Han-Taiwanese’ exclusively and not ‘Han-Chinese’ from the Mainland. 38 | T H E U N I V E R S A L 2 0 1 6


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right to practise and revitalize their cultural traditions and customs (United Nations 2007, p. 6). The Taroko case is a suitable, but not exclusive, example of the complex political interplay between nation-states, local elites, religious institutions, and local people in the revitalization of cultural traditions. This article focuses on the notion of authenticity in the revival of indigenous traditions and how the new headhunting rituals affected local Taroko communities. In addition, the article illustrates how – due to differing perceptions of ‘authenticity’ in Taroko culture between elites and locals – the new rituals created tension in Taroko communities. Importantly, rather than viewing the new rituals as elite strategies, this article focuses on how the new rituals, despite being ‘fake’ and contested, affected both local Taroko identity and also powerrelations with the Han. As such, the article attempts to move beyond fixed notions of culture and tradition as modern/traditional, pure/impure or authentic/inauthentic, to rather provide a revisited understanding of authenticity. By focusing on how identity and power are negotiated during the new Taroko rituals, this article presents an approach that can aid our understanding of the ways in which authenticity relates to identity in the revitalization of cultural traditions in indigenous communities. The article is based on research conducted for my BA-thesis in anthropology during a one-year exchange to Taiwan (2012-2013). The empirical data selection was based on an extensive review of the literature as well as information obtained in dialogues with scholars in the field of Taiwan’s indigenous people. The empirical cases have been carefully selected from relevant anthropological monographs and articles written on the Taroko tribe by both Western and Taiwanese scholars and anthropologists over the last fifteen years. The material was predominantly collected from fieldwork and with anthropological research methods of participant-observation and interviews. It is acknowledged that, due to the predominance of headhunting rituals performed between the early to mid 2000’s, the article lacks more recent empirical case examples.

2. TAIWAN’S INDIGENOUS POPULATION Taiwan’s indigenous population3 belongs to the Austronesian family and is believed to have arrived in Taiwan around 4.000-4.500 B.C.E (Bellwood 1985; Cau-

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quelin 2004). From the early 17th century onwards, Taiwan has been under a range of different regimes of governance. The most significant political authorities in Taiwan’s history are: the Dutch East India Company Period (1624-1661); the Chinese Koxinga Period (1661-1683); the Chinese Qing Dynasty Period (1683-1895); the Japanese Colonial Period (1895-1945); the Chinese Nationalist Period (1949-1996); and the current Independent or Democratic period (1996-present) (Lo 2013; Munsterhjelm 2002; Yoshimura 2007). During the Qing Dynasty Period, many indigenous people living on the lowland plains of Western Taiwan gradually assimilated with the surrounding Han society (Lo 2013, p. 13). Most tribes in the mountains of Central and Eastern Taiwan, however, remained more or less untouched. Nevertheless, during Japan’s rule, the mountain tribes, and in particular the Taroko, were eventually defeated, despite fierce resistance (Lo 2013, p. 13). Following this, the Japanese banned all headhunting rituals and practices4, which were central to Taroko culture, cosmology, and identity (Lo 2013, p. 14; Simon 2012). The suppression of indigenous traditions continued during the Chinese Nationalists period, and with the mass conversion to Christianity after 1945, many indigenous people abandoned their traditional beliefs (Rudolph 2008, p. 6). The lift of martial law5 in 1987 facilitated Taiwan’s democratization processes and the formation of different social movements, including the Aboriginal Movement that fought for political rights, the return of lands, and name rectification (Rudolph 2008, p. 5-6). The movement began in 1984 with strong support from the Presbyterian Church that, for a long time, had promoted local self-autonomy for Taiwan’s indigenous tribes (Simon 2010, p. 728). In the early 1990s, the focus on nation-building, multiculturalism, and human rights gave the Aboriginal Movement new support from Han elites, and Taiwan’s indigenous were officially recognized in 1994 (Simon 2007, p. 227). Today, Taiwan’s indigenous population is divided into fourteen tribes and num4   According to Simon (2012), traditional headhunting rituals consisted of a series of rituals and practices including warfare (hunting for human heads), hunting wild animal prey, animal blood sacrifice, and worshipping ancestor-spirit rituals. For more on the anthropology of headhunting see (George 1993; Hoskins 2002; Rosaldo 1984). 5   Chiang Kai-Shek imposed martial law over Taiwan when he fled there in 1945 with his defeated troops from the Chinese Civil War. The lift in 1987 signalled the end of over 40 years of authoritarian rule over Taiwan (Brown 2004). 40 | T H E U N I V E R S A L 2 0 1 6


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bers roughly 500.000 – slightly over two percent of Taiwan’s otherwise Han-Chinese population (Simon 2010, p. 728). The Taroko, a patrilineal people of about 26.000 in East Taiwan, were formerly categorized as a sub-group of the Atayal, but gained official recognition as an independent tribe in 2004 (ibid.).

3. REDISCOVERING HEADHUNTING RITUALS By the time the new headhunting rituals6 were reintroduced into Taroko society, the ‘original’ rituals had largely been forgotten (Rudolph 2008, p. 106). The ritual performances were reconstructed from Japanese colonial material and oral accounts of Taroko elderly. While observing some of the new ritual performances, Michael Rudolph noted how ‘original’ headhunting practices had been replaced with a theatrical performance, featuring a plastic head and red paint (2008, p. 106). In addition, an animal blood sacrifice was often completely omitted. Instead of the traditional hunting of wild pigs, a boy played the pig and was hunted down by other boys with paper sticks (Rudolph 2008, p. 110). According to Rudolph, not only did these new rituals have little to do with the ‘original’ rituals, but they also seemed disconnected from the contemporary Christian Taroko life-style (2008, p. 8-9). The Church played a significant role in their revitalization, with priests often acting as ritual leaders (ibid., p. 118). During one ritual observed by Rudolph in a Taroko village, the priest accused the animal sacrifice of being blasphemous. Moreover, the Church tended to view former headhunting practices as sin (ibid., p. 200). As a result, many local Taroko feared that the revitalized rituals would bring misfortune to their villages. Others felt that they had to choose between modern-day Christian beliefs or traditional ancestral beliefs (ibid., p. 127). While participating in some of the new rituals in Taroko communities in 2000, Scott Simon describes how, “[Taroko] participation consisted merely of eating barbecued meat and drinking [...] they described the formal event as a failed attempt to attract tourists; and laughed at the organizers, whom they imagine to enrich them6   Rudolph uses the term ancestor-spirit rituals, while Simon uses headhunting rituals. In this article, I use the latter, though it refers to the same traditional rituals and practices of ancestor-spirit worship, headhunting, wild hunting and animal sacrifice (Simon 2012).

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selves through such projects” (Simon 2012, p. 167). The new rituals did not appear to embrace the local community at large as many ordinary Taroko did not see the advantage in revitalizing forgotten traditions or in supporting the elites in their pursuit of political power (Simon 2010, p. 17).

4. ELITES’ AUTHENTICATION PRACTICES Rudolph uses the term ‘authenticating practices’ to describe the strategic way the elites reconstructed Taroko cultural traditions in order to compete with other tribes for subsidies (2008, p. 66). The elites’ authenticating practices can be seen as what Joane Nagel (1998) calls cultural reconstruction, in which forgotten or lost cultural practices are reintroduced into contemporary culture. Nagel draws on Eric Hobsbawm & Terrance Ranger’s influential work The Invention of Tradition (1983), in which they argue that traditions are mostly invented practices that seek to repeatedly assert values and norms that connect the present to the past. Moreover, (invented) traditions often attempt to link the past with suitable present conditions, making the past-present continuity mostly factious (Hobsbawm & Rangers 1983). We can understand the reintroduced symbols, such as the plastic head, as a link to the past traditions of headhunting, which legitimizes the authenticity of the Taroko tribe. Rudolph explains that the elites “hoped that the enactment of cultural representations that seemed more authentic and archetypical than those of their tribal rivals would eventually re-legitimate them and their alleged primordial rights in the eyes of the Han public” (Rudolph 2008, p. 211). Qiu Yunfang points out that the elites studied the ‘original’ rituals like researchers from the outside, and translated them in ways that the Han would understand (in Rudolph 2008, p. 218). In other words, the elites composed the new rituals in a way that would re-confirm the Han’s stereotypical view of authentic indigenous culture (Qiu Yunfang in Rudolph 2008, p. 141). We have seen how the new rituals created tension in local Taroko communities, and how the elites reconstructed cultural symbols and practices to portray Taroko authenticity to the Han society. The following section will examine how the concept of authenticity relates to indigenous rights more closely.

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5. AUTHENTICITY AND INDIGENOUS PEOPLE The revitalization of Taroko rituals can also be seen as part of a larger (elite driven) movement for official recognition of the Taroko tribe (Rudolph 2008, p. 105; Simon 2010, p. 728). The Taroko case thereby provides a good example of an indigenous group’s attempts to demonstrate its ‘authenticity’ to the outside society so as to obtain certain rights and subsidies. According to Richard Handler, authenticity is a modern Western and anthropological construction rather than something evident in nonWestern cultures (1986, p. 2). Handler argues that anthropologists have tended to construct cultures by describing them within their own monographs. Authenticity is therefore not only embedded in anthropological theory but also in the self-conscious ethnic ideologies of the many groups studied by anthropologists (Handler 1986, p. 4; Wagner 1981[1976]). The reconstruction of ‘authentic’ cultural traditions to gain political influence, rights, subsidies, and recognition is not particular to Taiwan’s indigenous elites. As Thomas Hylland Eriksen (2002) points out, indigenous people around the world (Native-Americans, Sami, Intuits, Australian Aboriginals, etc.) have, from the 1970s onwards, organized themselves politically to demand indigenous rights, to get their ethnic identities recognised, and to reclaim lost land. Paul Brass also argues that the survival of ethnic groups and ethnic cultures in modern societies does not depend on cultural purity, but rather on how successfully identity symbols are used by competing elites (1991, p. 25). However, viewing the revitalized Taroko rituals as inauthentic or invented traditions by elites, or as a matter of traditional Taroko culture versus modern Christian lifestyles, would be an over-simplification. As Simon notes, the elites could have composed the new rituals with fewer symbols and less drama and still received government subsidies (2012, p. 168). Qiu Yunfang also argues that the new rituals were directed at both Han and indigenous audiences, and that many local Taroko were in fact still engaged in traditional beliefs when the headhunting rituals were reintroduced (Rudolph 2008, p. 128-9). In the following, I will take a look at Rob Van Ginkel’s (2004) analysis of the revitalization of whale hunting by the Makah Indian tribe in The United States. Ginkel provides some useful insights into authenticity, which can help us move beyond simplistic notions of revitalized traditions and help us gain a deeper understanding of how the new rituals affected many local Taroko. 2016 THE UNIVERSAL

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6. THE RIGHT TO REVITALIZE TRADITIONS In 1995, the Makah Tribal Council developed plans to revitalize the tribe’s old whale hunting traditions. Upon receiving the official right to resume their tradition in 19987, the Makah tribe came up against fierce resistance from groups of whalehunting opponents (Ginkel 2004, p. 63). During the debate that ensued over the Makah’s right to hunt whales, opponents claimed that traditions such as whaling, “should either go along with a complete return to traditional tools and traditional values and beliefs or become extinct” (Ginkel 2004, p. 70). According to Ginkel, the opponents frequently drew upon general, romantic, and neo-colonial ideas about Native Americans. Essentially, the opponents’ message seemed to be: “once you have assimilated, you have lost your rights to maintaining or revitalizing a tradition” (Ginkel 2004, p. 79). Notions of authenticity that are in alignment with this sense of purity played a key role in the opponents’ arguments against Makah hunting rights (Ginkel 2004, p. 59). In this view, traditional practices like whale hunting cannot be authentic if combined with modern lifestyles and practices (Ginkel 2004, p. 59, 71). Similarly, according to the Han’s stereotypical view of the Taroko tribe, traditional headhunting rituals and modern/Western Christianity should not be integrated (Rudolph 2008, p. 127). Yet, in both Makah and Taroko communities, traditional beliefs did not completely cease to exist but rather co-existed with modern lifestyles (Rudolph 2008, p. 129; Ginkel 2004, p. 59). Ginkel argues that the debate over Makah authenticity became polarized between deconstructionists’ view of authenticity as pure on the one hand and constructionists’ view of traditions as inauthentic fabrications on the other (2004, p. 59). For Ginkel, such a simplification only scratches the surface and does little to illustrate what authenticity actually means for local people whose traditions are being revitalized (2004, p. 59.). Based on what this article has presented so far, it might be tempting to take a constructionist view of the new headhunting rituals and view them mainly as elite strategies and inauthentic performances for tourists and Han-elites. However, in order to go deeper, we will need to thoroughly examine the ritual practices and how the 7   U.S authorities gave the Makah right to hunt five whales annually over a five-year period with a maximum of twenty whales for subsistence and ceremonial purposes only (Ginkel 2004, p. 64). 44 | T H E U N I V E R S A L 2 0 1 6


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revitalized rituals affected ordinary Taroko. Though Rudolph’s main emphasis is on elites, he points out that what might have begun as authentication practices “became an identity-instilling activity” (2008, p. 131). In the following, I will look at how the new headhunting rituals, despite being ‘fake’, created a temporal socio-cultural space for re-negotiating Taroko identity and power-relations with the Han. In this way, I will attempt to move beyond dichotomies of authentic/inauthentic and modern/ traditional, and provide a more nuanced understanding of the relationship between contemporary Taroko identity and the revitalized traditions.

7. RITUAL PRACTICE AND IDENTITY According to Catherine Bell (1992; 1997), performative ritual practices have the potential to establish and transform identity by providing a space for individual agency. Here, individuals can simultaneously reproduce the ritual performance while seeking to transform socio-political difficulties (Bell 1997, p. 82-3). With Bell’s practicetheoretical approach, we can consider the revitalized rituals not only as a theatrical performance that represents Taroko society but also as a space that can catalyse sociocultural change and reconstitute Taroko identity. During the new ritual performances, many Taroko began to re-apply facial henna tattoos (Rudolph 2008, p. 124). Traditionally, the rituals were connected to headhunting and ancestor-spirit worship, and only headhunters could obtain the facial tattoos so strongly associated with Taroko identity: “men who had the facial tattoo were able to get married, to father children and to return to the realm of ancestors after death” (Rudolph 2008, p. 105). According to Fredrik Barth (1969), ethnic identities are constituted by symbolic interactions between different social groups and in accordance with different experiences of the ‘other’. This is clear in the re-applying of facial tattoos as an ethnic indicator that signifies the difference between Han and Taroko. In the new rituals, the Taroko, both as a reference to their headhunting culture and to differentiate themselves from the Han, ate raw meat – traditionally given to the headhunters – and by displaying pig skulls (in former times human skulls) (Brown 2004, p. 117). According to Melissa Brown, the pig skulls and the eating of raw meat served to frighten the Han who stereotypically feared the ‘barbaric’ indigenous people (2004, p. 116). Brown argues that by exploiting the Han’s fear, the indigenous people 2016 THE UNIVERSAL

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manage to assert some sort of power relationship over the Han during the ritual’s performances (Brown 2004, p. 117).

8. CHALLENGING HAN POWER-RELATIONS According to Rudolph, the Taroko also managed to assert power over the Han by ridiculing them during the ritual performances. In one ritual observed by Rudolph in a Taroko village, raw liver was given to two attending Han school directors (Han elites): “Han school directors who first reacted with great embarrassment, but who finally pretended to eat it. The attending crowd rewarded the spectacle with delighted whispering and giggling”
(Rudolph 2008, p. 122). During the Chinese Nationalist period, the Han tried to remove the ‘barbaric’ Taroko custom of eating raw meat and ‘civilize’ them through re-education programs. Now, however, the Han elites were required to reluctantly accept the ‘barbaric’ customs of the Taroko in the same way as they had forced the Taroko to accept their Han cultural values (Rudolph 2008, p. 122). According to Victor Turner (1969), ritual performances can create a space where social hierarchies and statuses are temporarily subjected to change and inversion. As maintained by Turner, feeding raw liver to the Han school directors creates a temporary space that blurs the lines between the dominant Han and the dominated Taroko. The temporary reversal delights and amuses the local villagers, creating a stronger sense of Taroko group solidarity and identity, which Turner calls communitas. We have seen how, despite being non-authentic or reconstructed, the ritual symbols and practices continue to provide a vessel through which Taroko identity and power-relations can be renegotiated. Stanley Tambiah (1979) uses the phrase ‘ritual’s duplex existence’ to explain how ritual symbols can have cosmological meaning and an indexical function (1979, p. 154). The ritual’s duplex existence becomes apparent in the way that traditional symbols, such as raw meat, skulls, and facial tattoos, take on a cosmological meaning, referring to headhunting culture and an indexical function, relating to the power-relations with the Han. Thus, the traditional symbols become reframed within the new political setting as signs of protest and resistance against Han dominance (Rudolph 2008, p. 126). In the last section, a closer look will be taken into how this practice approach to the new rituals relates to a revisited concept of authenticity.

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9. AUTHENTICITY REVISITED The preamble of the UNDRIP recognizes that “the situation of indigenous peoples varies from region to region and from country to country and that the significance of national and regional particularities and various historical and cultural backgrounds should be taken into consideration” (United Nations 2007, p. 4). According to Simon & Mona, the study of these differences through case studies can provide new insights into the global meaning of indigenous rights in particular and human rights in general (2012, p. 101). Consequently, what understandings of indigenous rights might be gained from the revitalization of headhunting rituals in Taroko communities? We have thus far focused on the ways in which purity-based (Western) notions of authenticity affected and caused the revitalization of Taroko headhunting rituals. Such notions of authenticity often fail to acknowledge the contrasting views of culture and traditions, like the contrasting views of Taroko culture by elites and locals. As a result, how should we approach the study of revitalized traditions for indigenous rights? How can we move beyond dichotomies of traditional/modern or constructionist/deconstructionist? Is the concept of authenticity even useful in this context? Rudolph suggests that a focus on hybridity (instead of authenticity) is more useful in recognizing the indigenous people of Taiwan’s hybridized status by emphasizing every indigenous group’s own distinct culture (2008, p. 206). Rather than disregarding the concept of authenticity completely, Ginkel argues in favour of another view of authenticity, one that is not based on purity (2004, p. 83). This view considers how authenticity links to experience and practice: “What does matter is that the Makah feel they live their perception of being Makah through their actions” (2004, p. 83). In other words, practicing their traditions creates an “authentic experience” that is not a fixed established reality but rather one continuously produced and reproduced (Ginkel 2004, p. 83). This is where, according to Ginkel, identity and authenticity become intimately connected (2008, p. 83). The intimate connections between identity and authenticity are evident in how the revitalized headhunting rituals create a space for the reconstitution of Taroko identity (Bell 1997). The ritual’s space can provide a temporal “authentic experience” in which ordinary Taroko are given the opportunity to, “feel like real Taroko again” (Rudolph 20008, p. 125). Furthermore, the reframing of symbols (Tambiah 1979) and

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the switching of status roles (Turner 1969) challenges Han dominance, which also gives ordinary Taroko a chance to experience their identity and culture as opposed to those of the ‘other’ - the Han (Barth 1969). In accordance with Ginkel, authenticity thus matters insofar as ordinary people, like local Taroko, feel, value, and appreciate their cultural traditions (invented or not) as real and authentic: “we may discover the reasons to invent or revitalize traditions can be authentic enough albeit in a different sense than the simple deconstructionist one” (Ginkel 2004, p. 59). Therefore, if we base our understanding of authenticity on experience and practice instead of purity, it continues to be a useful concept in the study of revitalization of traditions in indigenous communities around the world.

10. CONCLUSION In an attempt to portray Taroko authenticity so as to obtain government funding and political rights, Taroko elites began organizing revitalized headhunting rituals in 1999. This article has focused on authenticity in the revival of Taroko rituals and has as such shown how different notions of authenticity between elites and locals lead to tension in Taroko communities. The elites were predominantly concerned with recreating ‘pure’ cultural traditions in order to convince the Han society of Taroko authenticity. However, ordinary Taroko tended to illustrate a certain hybridity by voicing a desire to incorporate both traditional Taroko culture and modern Christian beliefs into representations of their culture and identity. It might seem tempting to perceive these new rituals as mostly elite strategies and ‘fake’ re-invented performances for tourists and Han-elites. However, this article has argued that new headhunting rituals, despite being ‘fake’ and ‘inauthentic’, in fact created a temporal space in which Han-Taroko power-relations and Taroko identity could be renegotiated. Thus, this article has attempted to move beyond simple dichotomies of authentic/inauthentic, modern/traditional, and constructionist/deconstructionist by focusing on the ways in which ordinary Taroko experience and practice their identity in the new headhunting rituals. The Taroko headhunting rituals present a suitable example of how the revitalization of old traditions can affect indigenous communities. In this sense, the article has attempted to address larger debates in indigenous rights studies with a reconsidered 48 | T H E U N I V E R S A L 2 0 1 6


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focus on authenticity. This revisited focus, which centres on the ways in which authenticity relates to identity and experience, can give us a more anthropological understanding of how revitalized traditions actually affect local people within indigenous communities. After all, it seems difficult to promote Article 11.1 of the UNDRIP – “the right to practise and revitalize their cultural traditions and customs” (United Nations 2007, p. 6) – without fully understanding the different ways in which indigenous people around the world understand, practice, and experience their own identity, culture, and traditions.

AUTHOR’S PROFILE Kristoffer Ravnbøl holds a MSc in social and cultural anthropology from University of Copenhagen. Kristoffer is specialized in the anthropology of East Asia and has spent one year on exchange at National Taiwan University and five months conduction fieldwork in Northern China. REFERENCES Barth, F 1969, Ethnic Groups and Boundaries, the Social Organization of Culture Difference, Scandinavian University Books, Oslo. Bell, C 1992, Ritual Theory, Ritual Practice, Oxford University Press, New York & Oxford Bell, C 1997, Ritual: Perspectives and Dimensions, Oxford University Press, New York & Oxford Bellwood, P 1985, Prehistory of the Indo-Malaysian Archipelago, Academic Press, Sydney Brass, P 1991, Ethnicity and Nationalism: Theory and Comparison, Sage Publications, London Brown, MJ 2004, Is Taiwan Chinese? The Impact of Culture, Power, and Migration on Changing Identities. University of California Press, Berkeley, CA Cauquelin, J 2004, The Aborigines of Taiwan. The Puyuma: From Headhunting to the Modern World, Routledge Curzon. New York Eriksen, TH 2002, Ethnicity and Nationalism, Pluto Press, London Ginkel, RV 2004, ‘The Makah Whale Hunt and Leviathan’s Death: Reinventing Tradition and Disputing Authenticity in the Age of Modernity’, Etnofoor, 17(1/2): 58-89. Handler, R 1986. ‘Authenticity’. Anthropology Today, 2(1): 2-4. Hobsbawm, E, Ranger, T 1983, The Invention of Tradition, Cambridge University Press, Cambridge 2016 THE UNIVERSAL

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Lo, YC 2013, Accessing Indigenous Land Rights Through Claims in Taroko Area, Eastern Taiwan, Master thesis, University of Leiden. Munsterhjelm, M. 2002, ‘The First Nations of Taiwan: A Special Report on Taiwan’s Indigenous Peoples’, Cultural Survival Quarterly, Summer: 53-55. Nagel, J 1998, ‘Constructing Ethnicity: Creating and Recreating Ethnic Identity and Culture’. in New Tribalism: The Resurgence of Race and Ethnicity, Eds. MW Hughey, New York University Press, New York, pp. 237-272 Rudolph, M 2008, Ritual Performance as Authenticating Practices: Cultural Representations of Taiwan’s Aborigines in Times of Political Change, LIT, Hamburg Simon, S 2007, ‘Paths to Autonomy: Aboriginality and the Nation in Taiwan’ in The Margins of Becoming. Identity and Culture in Taiwan, Eds C Storm & M Harrison, Harrassowitz, Wiesbaden, pp. 221-240 Simon, S 2010, ‘Negotiating Power: Elections and the constitution of indigenous Taiwan’. American Ethnologist, 37(4): 726–740. Simon, S 2012, Politics and Headhunting among the Formosan Sejiq: Ethnohistorical Perspectives. Oceania, 82(2): 164-185. Simon, S, Awi, M 2012, ‘Human Rights and Indigenous Self-Government: The Taiwanese Experience’ in Human Rights and The Third World, Eds. SS Bagchi & A Das. Lexington Books, Plymouth, pp. 99-122 Tambiah, SJ 1979, ‘A Performative Approach to Ritual’ in Proceedings of the British Academy LXV, pp. 113-169 Turner, VW 1969, The Ritual Process: Structure and Anti-Structure, Aldine Publishing Company, Chicago United Nations 2007, United Nations Declaration on the Rights of Indigenous Peoples Wagner, R, 1981[1975], The Invention of Culture, The University of Chicago Press, Chicago Yoshimura, M 2007, Weaving and Identity of the Atayal in Wulai, Taiwan, Master thesis, University of Waterloo.

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‘DE-CASTEING’ INDIA: HOW DALIT WOMEN’S RIGHTS CIVIL SOCIETY ORGANIZATIONS TACKLE CASTE BASED SOCIOPOLITICAL & RELIGIO-CULTURAL CHALLENGES Festival Godwin Boateng, Swapanil Reesha Shar ma, Caroline Winkler & Erika Matadamas

ABSTRACT Untouchability practices and caste-based discrimination and injustices are under yet another siege. Over the past 50 years, India has seen a tremendous amount of mobilization by vibrant lower caste women’s movements, which are committed to challenging Indian caste society by securing social change and reducing caste-based discrimination and injustice. However, as it was in colonial India1, the anti-caste movements of today have to contend with socio-political and religio-cultural factors that perpetuate caste-based injustices. This study examines the ways in which Dalit women’s rights civil society organizations tackle four primary levels of caste-based challenges in India: Hindu religion, family, community, and state/institutional. 1. INTRODUCTION Untouchability in India has been abolished since the 1950s (The Untouchability Offences Act 1955), for instance, practices that involved social restrictions in sharing food, access to public places, offering prayers and performing religious services, entry into temples and other public places, the denial of access to drinking water sources,

1   The British mission of civilization and firm belief in human rights did not sit well with the

marginalization, inequalities, oppression and exclusion the caste system was predicated upon. However, they faced fierce opposition from the higher caste people when they sought to roll out programmes and policies to improve the situation of the lower-caste people. See detailed discussion in Riser-Kositsky (2009).

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and so forth (Jones 2014). In addition, Article 15 of the Indian Constitution explicitly prohibits discrimination based on caste. However, strong feelings related to caste and untouchability practices continue to trouble Dalits (the lowest caste), particularly Dalit women, to this day. Consequently, this represents one of India’s greatest yet intractable human rights issues. Both socially and also ideologically, the religious and cognitive sanctions of the caste system persist, and Dalit women are continually subjected to degrading treatment and human rights abuses (Human Rights Watch 2014; Patra & Velassery 2013; Kumar 2013; Navsarjan Trust et al. 2013; HRW & the Center for Human Rights and Global Justice 2007; Irudayam, Mangubhai & Lee 2006; Luitel 2003). The Dalits, also known as the “untouchables” or “outcastes,” make up nearly one quarter of India’s 1.2 billion population – an estimated 250 million people – and constitute the longest standing group of oppressed people in the world. The Indian caste system is rooted in Hindu doctrines, embedded in which are patriarchal norms that stereotype and devalue Dalit women and their role in the household, community, and the broader society. Related to this is the inertia on the part of state institutions (mostly the police and the courts) to enforce anti-discrimination and anti-oppression laws (Jones 2014; Channa & Mencher 2013; Kumar 2013; Agarwal 1999). Consistent with the timeless axiom that the desire to resist oppression is rooted in the very nature of man, India has, in the last 50 years, witnessed a remarkable amount of mobilization by lower caste members. Specifically, vibrant women’s movements have been focused on securing social change and protecting the rights of lower caste (Dalit) women. Libertarian and emancipatory tendencies, resentments, and resistance of caste exclusions have intensified in India (Channa & Mencher 2013; Upadhyay 2010). However, these agency and emancipatory activities clearly run counter to the socio-political, religious, and cultural configurations that have sustained the centuries old patriarchal caste system. It is these configurations that form the genesis of Dalit women’s misery and oppression. Moreover, the fact that their object of pursuit is ‘women’s rights’ magnifies their challenge further in that “defending women’s human rights is often seen by state authorities, and even by communities, as a challenge to culture, tradition and the way of life” (CIVICUS 2011, p. 6). Thus, defending women’s rights is generally considered an affront to the conventional Indian way of life. The activities of Dalit women’s rights civil society organizations/movements (CSOs) are thus subject to serious religious, socio-cultural, family, community, and state-level constraints, which are related not just to the caste system but also to the constraints 52 | T H E U N I V E R S A L 2 0 1 6


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peculiar to defending the rights of women. How such movements and organizations respond to the various levels of challenges in their pursuit of Dalit women’s rights is what this study seeks to examine.

1.1 METHODOLOGY This study examines three Dalit women’s rights CSOs working in India: Samajik Shaikshanik Vikas Kendra (SSVK), Lok Shakti Sanghatan, and Dalit Freedom Network (DFN-UK). Two main sources of data – primary and secondary – were used for this study. The primary data was elicited through skype interviews and mail exchanges with representatives of SSVK, Lok Shakti Sanghatan, and DFN-UK. We began by formulating the thematic issues, especially the levels of challenges that impact advancing Dalit women’s rights. These issues were then proposed to our interviewees. Importantly, the idea was to examine the ways in which the CSOs tackle those challenges embedded in the Indian socio-political and religio-cultural environment that impact on advocating for Dalit women’s rights. With regard to the secondary data, we conducted Internet research on a variety of existing empirical studies in order to locate and access bibliographic materials available online, such as blogs, journals, newspaper articles, official documents and NGO reports. We engaged in an explorative data collection strategy followed by an extensive snowball sampling strategy to guide us to the most cited and debated writings on the different elements of our research problem. This not only provided us with relevant information, it also broadened our perspective on the situation of Dalit women.

1.2 LITERATURE REVIEW The experiences of lower caste people and women in India have been widely reported and studied (Jones 2014; Kumar 2013; Navsarjan Trust et al. 2013; HRW & the Center for Human Rights and Global Justice 2007; Irudayam, Mangubhai & Lee 2006; Luitel 2003). Over the last 50 years, India has witnessed tremendous mobilization by the lower caste members, specifically, vibrant women’s movements challenging Indian society with a view to secure social change and protect the rights of lower caste (Dalit) women (Channa & Mencher 2013; Upadhyay 2010). Whilst the organization of Dalit women against caste-based injustices has been noted in the literature, there re2016 THE UNIVERSAL

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mains a gap regarding how that agency plays out. There is thus a need for systematized knowledge on the ways in which the anti-caste movements respond to the socio-political and religio-cultural constraints they face in India. Without greater insight into this, we are furnished with an incomplete understanding of how upper caste people’s quest to maintain the caste status quo (for prerogative and vested benefits) plays out against lower caste people’s quest to change the system for an egalitarian life. It is this literature gap that this study seeks to fill.

1.3 HOW THE CSOS TACKLE THE VARIOUS LEVELS OF CHALLENGES 1.3.1 HINDU RELIGION CHALLENGES Strachey argues that India has been shaped and constrained by the caste system – a system that impedes altruism, unity, and patriotism, and, by appealing to the authority imbedded in their ancient sacred Hindu books, enlists the support of the Indian people. As a result, any real social progress is rendered impossible (Strachey 1915 cited in Riser-Kositsky 2009). Essentially, and as argued by Siddaramu (2013), Indians appear to be more influenced by Hindu Manusmriti (doctrines) than they are by the Indian constitution. Thus, Hindu religion is fundamental to the caste system and in fact serves as the lifeblood for its continued existence. The writings of philosophers like Marx and Durkheim2 illustrate how religious beliefs and dogmas generally become part of the followers’ sub-conscious and are considered sacrosanct. As a result, opposing ideas and projects are seen as blasphemous. In this regard, given that Hindu doctrines sanction what is considered discrimination (oppression and abuse of the rights of Dalit women) as legitimate, the fight for these rights by CSOs will automatically be considered by Hindus as an attempt to defame the injunctions of their sacred religion. As observed by Ambedkar, such projects against Hindu-sanctioned discriminations “are bound to act like atomic bombs on the dogmas of the Arya Samajists [Hindu followers]” (Ambedkar, 1946, p. 6). Against this backdrop, we seek, in this section, to assess how the Dalit women’s rights organizations approached Hinduism-related challenges so as not be misconstrued by high caste Hindus as attempting to defame and blaspheme their religion. 2   See more on this in the writings of Karl Marx and Emile Durkheim on religion. 54 | T H E U N I V E R S A L 2 0 1 6


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Responding to this inquiry, our interviewee from SSVK stated that they position the fight for the rights of Dalit women as a national or Indian problem rather than a Hindu one. As a result, the issues take a “political” twist and “gain the attention of the media and human rights bodies.” In this way, Dalit women’s rights pertain to their identity as Indians and human beings – and as such their inalienable rights. In addition to framing the issue as one of national identity and human rights, the Dalit rights activists tackled the Hindu problem by appealing to those Hindus of the upper caste. The SSVK representative submitted: “I have started this revolution from my home; I have made sure my mother stopped old practices that would differentiate between high caste and Dalits.” By adopting a personal one-to-one approach at the household level as evidenced in the submission reproduced above, the activists appeal to the personal moral consciousness of the upper-caste Hindus and not to their religious sensibilities. The issue then becomes one of upper-caste Hindus accepting their fellow human beings (Dalit women) as such and not necessarily as violating their Hindu doctrines. We note however that upper-caste Hindus have generally refrained from accepting the problems of Dalit women as a national challenge, in spite of the fact that some of those working with the NGOs and fighting for the Dalit women are themselves upper-caste people. Our interviewee from SSVK stated: “We have seen that [some upper] Caste Hindus have become even more anti-Dalit when Dalits try to revolt against the oppressions and the women face the worse brunt of this cross-fire via sexual assaults and rape”. One respondent stated that the problem is one of mentality and will as such not easily diminish, thereby confirming the arguments of the likes of Riser-Kositsky (2009) and Siddaramu (2013) that the caste system is not just a social system but also a congenital instinct, an all-pervading principle of attraction and repulsion. The experience regarding phenomena that are sanctioned by religion is that those who become victims and suffer unjustly from the extreme sanctions of the dogma, do themselves become zealots, and as such come to accept the status quo as not only inevitable but also divinely determined and therefore infallible.3 Mencher (2013) captures the case of the Indian caste system as follows: 3   See more on this in Marx’s writings on religion. 2016 THE UNIVERSAL

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“The traditional view of Indian social structure, which appears codified as early as the law of Manu, assumes that hierarchy is accepted by all as an inevitable part of human existence. It assumes that each person accepts his niche and his relationship to others above and below him, and believes that he is in that position because of his actions in former lives. Hierarchy in Indian society is considered to be essentially ritual.” (Mencher in Channa & Mencher 2013, p. 157) As a result, given that all the atrocities and discrimination against Dalit women are sanctioned by the Hindu religion, the expectation is that Dalit women will be conditioned into passive, weak fanatics, who will accept the status quo as inevitable and divinely determined. However, the opposite seems to be the case. Our interviewees were unanimous in the fact that, on the part of the Dalit women, a large degree of agency to mobilize and deal with the caste issue is prevalent, validating Channa & Mencher’s (2013) and Upadhyay’s (2010) arguments that both Dalit women’s rights movements and liberating action have grown and intensified in India. Indeed, many of the Dalit women’s rights organizations are established by groups of Dalit women themselves, who have come together to fight the injustices and oppressions incidental to the caste system. As noted by Channa & Mencher, Dalits “almost totally reject the worldview of the upper castes; they are not at all agreeable to viewing themselves as rightfully situated in a position that they deserve” (Channa & Mencher 2013, p. 295). So why, against all odds, have Dalit women come to fight the status quo? Is it only due to their victimhood? While Dalit women’s rights organizations tackle Hindubased challenges through reframing the issue towards national identity and the moral duty to accept fellow human beings, the Dalit women disabuse their minds of seeing their oppression and the discrimination they face in a religious light. The organizations educate them on their rights as human beings, as a people whose dignity is being violated. By sensitizing and educating them to take a civic rather than a religious view of their rights, oppression, and discrimination, there is the realization on the part of the Dalit women that what is at stake are injustices and discrimination, and not an attack on Hinduism per se. Therefore, while they may be Hindus, they do not consider their struggle for their rights as a fight against their own religion. As a result, the religious veil falls away, allowing agency, identity formation, and collective mobilization as a people denied their rights to live a life of dignity and selfrespect. They therefore come to see themselves as being a minority and as a result find 56 | T H E U N I V E R S A L 2 0 1 6


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strength in collective action and numbers. This discussion clearly illustrates the ways in which the Hindu religion presents two-intersected challenges: On the one hand, it leads upper caste Hindus to misconstrue action against caste injustices, discrimination, and oppression as calculated attempts to denigrate and blaspheme Hindu doctrines. On the other hand, it enables fanaticism and acceptance by the oppressed Dalit women of their current situation, thereby limiting all emancipatory efforts. The Dalit women’s right CSOs tackle these challenges by reframing the oppression, discrimination and abuse of Dalit women as a human rights issue. Accordingly, they are able to elevate the matter above that of a religious one thereby reducing the chances of violating the religious sensibilities of upper-caste Hindus on the one hand, and activating agency and collective consciousness among Dalit women on the other.

1.3.2 RESPONSE TO FAMILY-LEVEL CHALLENGES In this section, we analyse how the CSOs respond to the challenges that the family system imposes on their work. Importantly, considering that the work of the CSOs concerns the human rights of Dalit women, it is necessary to begin with an examination of how their human rights are violated at the family level. Kumar (2013) argues that Dalit women suffer “triple discrimination” – discrimination on the basis of caste, class, and gender. Nowhere do these intersectional problems play up in the life of Dalit women more than at the family level, namely because at this level they are not only Dalits, they are also women. Irudayam et al. (2006) notes that alcoholism among Dalit husbands is a strong contributing factor to domestic violence against Dalit women. We came to understand the ways in which these dynamics unfolded in the course of our interviews. Our interviewee from SSVK revealed that Dalit men often resort to excessive alcohol consumption in order to cope with the stench associated with the manual scavenging jobs assigned to them by upper-caste people. This in turn causes a predisposition towards violence against their wives. Importantly, the role of the family in the lives of Dalit women is nuanced. This is because in spite of the violations and oppressions noted above, the family system, as observed in Channa’s Indian Feminism framework, has “intrinsic” significance for women in India, in that it provides moral, financial, and other forms of support (Channa 2013, p. 91). Consequently, if care is not taken, attempts to address the violations inflicted on Dalit women within the family unit may compromise the benefits they receive from their familial relations, which 2016 THE UNIVERSAL

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may in turn result in further violations. With this in mind, we sought to discover the ways in which the CSOs approached complicated family-level challenges. First and foremost, the CSOs engage in the economic empowerment of Dalit women by enrolling them in projects such as microcredit schemes, as well as facilitating their access to banking and financial services. This approach is founded on the notion that as women become more economically independent, their status within the family is elevated, thus giving them more clout in financial decision-making, which will in turn place them in a better position to deal with the violence associated with their economic dependence on their husbands and other family members. In addition, such economic empowerment will minimize the violence often associated with a lack of or insufficient dowry. As noted by Channa (2013), the family is quintessential even to unmarried women in India. As a result, and as established through the interviews, Dalit women rarely voice the violations they suffer within their families. In addition to the economically empowering microcredit programmes, the CSOs have established schools to educate both Dalit children and also ‘ground workers’. These workers are responsible for gaining the trust of Dalit women so as to make them feel comfortable enough to confide the problems they experience at home. Reported violations are tackled through “negotiations, counselling and in extreme cases police intervention”. The latter is pursued sparingly. The delicate manner with which the CSOs approach the family-level challenges effectively validate Channa’s argument that the success of the feminist project in India is dependent on how it will be able “to negotiate its way around the familial and social relational structures into which most South Asians are embedded” (Channa 2013, p. 3). It also reinforces the ways in which Western notions of feminism, which primarily conceive autonomous individuals as bundles of rights bestowed on all, as somewhat inappropriate within the Indian context.

1.3.3 RESPONSE TO COMMUNITY-LEVEL CHALLENGES As viewed from the perspective of the “natural” caste hierarchy, Dalit women are without any rights, a view that predisposes them to abuse and violence within the 58 | T H E U N I V E R S A L 2 0 1 6


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communities, towns and villages they live. As noted by Irudayam et al. (2006), Dalit women face violence in the public spaces in and around their villages and towns, be it in the streets, women’s toilet areas, bus stands, fields, and so on. Ram (2013) captures the situation in the following way: “Atrocities on weaker sections, especially the Scheduled Castes, Tribes, and neo- Buddhists have become almost a regular feature of rural life in India. Everyday we come across, through daily newspapers and other media, a number of incidents of beating, torture, arson, usurpation, molestation, rape, and killing of these people by upper caste Hindus and others in villages” (Ram in Channa & Mencher 2013, p. 35). Essentially, it is at the community level where untouchability practices profoundly play out. Dalit women are humiliated, beaten, denied access to community resources, and banned from entering temples and other public gatherings. Indeed, as noted by our interviewee from DFN-UK, it is these community-level challenges that create some of the other problems faced by Dalit women in other facets of their lives, and which therefore explain the paradox of reservations for Dalit women. Moreover, they are underrepresented at all levels in India (see IMADR 2012; Upadhyay 2010). The DFN-UK representative stated that: “Well to be honest, this can be linked to reservation policies, as you see that in spite of reservation in academic, government and employment levels not much has changed. Ever wonder why? It’s because the Dalits are restricted at the community level itself in most cases, therefore they never really manage to reach the level of higher education or a government level to avail the benefits of these reservation policies.” The view shared above succinctly relates to the perspective of one of our respondents from SSVK: “the community for the Dalit women is her biggest enemy, and who form this community? It is people like you and me who form the community, it’s people sitting in government offices, it’s the villagers, it’s the education institutions that all work together to provide a hostile environment within which the Dalit woman is suffocating every day.” Thus, even though the problems of Dalit women permeate the entire society, the community level seems to be the real battleground for Dalit women. This view is supported by Irudayam et al., who note that Dalit women generally find public violence

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more humiliating than the violence that occurs more privately (Irudayam et al. 2006). With regard to how the CSOs respond to community level challenges, one thing permeates through all the interviews: mobilization. The first respondent from Lok Shakti Sanghatan stated that “Dalit women and Dalits in general organise themselves in groups if they have to fight against any form of injustice”. The second respondent from SSVK also responded to the community level question in this way: “See, I am telling you this, if these Dalit women are not in a group or in general, if Dalit community don’t fight together, in a united way, then nothing will happen.” Our respondent from DFN-UK stated that they mobilize and strengthen the Dalit women at the community level through education and empowerment seminars, building awareness, and connecting them throughout different villages. In this way, Dalit women pursue their cause as a collective unit. One of our interlocutors shared with us an example of how they used mobilization to deal with the denial of Dalit women’s entry into temples to pray. His narration is reproduced below: “One of the Chief Ministers who was a Dalit went to a village and entered a temple in which the high caste Hindus were not allowing Dalit community to enter and pray, so the Chief minister of that state came and visited the temple and offered prayers and you know what happened the next day, the priests of the temple were seen washing the whole temple with gangajal (holy water). But in return you know what our Dalit women did? Well, they kept going to the temple every day in huge groups and so the priest ultimately after months got tired of continuously washing the temple.” In addition to mobilization, organizations tackle community-level challenges, as attempted by the colonialists (see Riser-Kositsky 2009), by providing access to basic necessities which get Dalit women into trouble with the upper-caste people when they patronize the ones provided by the state for the general public. The CSOs establish community health-care centres, schools, microcredit institutions (source of employment), water, and sanitation facilities exclusively for Dalits.

1.3.4 RESPONSE TO INSTITUTIONAL-LEVEL CHALLENGES As discussed previously, one of the key reasons for the continuous perpetuation of 60 | T H E U N I V E R S A L 2 0 1 6


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caste-based injustices in India is related to the inertia on the part of state institutions (mostly the police, the courts, and other state agencies) to enforce anti-discrimination and anti-oppression laws. For instance, there is a small conviction rate in cases of atrocities committed against Dalit women (Jones 2014; Channa & Mencher 2013; Kumar 2013; HRW & the Center for Human Rights and Global Justice 2007; Irudayam et al. 2006; Agarwal 1999). The police force in India, and especially in rural India, approach cases related to Dalit women’s rights violations in a lacklustre way, either because the police officers are themselves upper-caste Hindus or because they are nervous of lodging complaints against upper-caste Hindu men, who often hold political and social clout at the rural level (Irudayam et al. 2006; Agarwal 1999). Our interviewee from SSVK shared this insight: “from my personal experience, I can tell you that even when a female social worker accompanies the Dalit women to register cases with the police, the police don’t do so, almost mocking me for being a Dalit social worker and more so an educated Dalit woman.” This revelation clearly reinforces the validity of feminist’s claims that the challenges associated with fighting injustices become particularly magnified when the object of pursuit is women’s rights (CIVICUS 2011). Another institutional challenge is that of corruption (see Upadhyay 2010). Corruption is pervasive in India and paying bribes to the state apparatus is almost a necessity if one is to promote women’s interests. Our respondent from SSVK bemoaned that: “There is so much corruption that to move one file (of statistical records) in a government office, we are forced to pay bribes, we are forced to pay bribes to government officials in order to get information that is supposed to be given to us as our right. When we do get funds from the government, it works as a trickledown effect. By the time the fund is transferred from the top ministries to the NGOs, there is nothing left as most of it is eaten away by the government middle men.“ It is, thus, clearly founded that that state institutions pose challenges to the work of these CSOs. The question, therefore, is how do the CSOs tackle these malfunctioning institutions? First of all, we found the Human Rights Commission in India a crucial element in the CSOs ability to deal with institutional-level challenges. The Human Rights Commission assists the CSOs both in registering cases with the police and also 2016 THE UNIVERSAL

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in facilitating court proceedings and trials. In this way, the Human Rights Commission serves as a watchdog and also emphasises cases that need immediate attention. Secondly, the CSOs use the media extensively (social and mainstream media and other mediums such as websites) to highlight both the atrocities committed against Dalit women and also the failure and inertia of state institutions to enforce related laws. The third and perhaps most striking way CSOs deal with institutional challenges – as well as challenges on all three levels (community, household and religion) – is through the mobilization of the Dalit community. Related to this, is the CSOs construction of alliances and affiliations with sister organizations with the aim of enlarging their platforms and increasing their influence both locally and internationally. This confirms Mahanta’s (2012) claim that “the Dalit women’s movement in India [have] established cross-border collective action so as to internationalize the domestic grievances of Dalit women” (Mahanta 2012, p. 140). For instance, Dalit Freedom Network, India has affiliates in the USA, Sweden, Canada, Switzerland, Germany and the UK, and the Navsarjan Trust (India) collaborated with FEDO (Nepal) & the International Dalit Solidarity Network to co-publish The Situation of Dalit Rural Women in 2013. The agencies against caste-based injustices thus take a transnational dimension in which the power of collective action is viewed as an instrumental strategy. They derive their strength numerically, putting up a united front to embark on protests, publications, and to develop networks at the grass-roots level in the rural areas, and also internationally. Summarily, the CSOs respond to institutional challenges through these strategies: 1. Seeking the support of the Indian National Human Rights Commission as and when crucially needed. 2. Using the Media mainstream and social media, websites and so forth. 3. Mobilization and collective strength of the Dalit community at the grassroots le-vel while also forging alliances with sister (international) organizations.

1.4 DISCUSSION OF FINDINGS In this section we discuss the findings and gauge how the approaches adopted by 62 | T H E U N I V E R S A L 2 0 1 6


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the CSOs will impact on Dalit womenâ&#x20AC;&#x2122;s rights advocacy in general. At the level of religion, we found that the CSOs face a two-pronged challenge. First, they risk uppercaste Hindus misunderstanding the struggle for Dalit womenâ&#x20AC;&#x2122;s rights as blasphemous or manoeuvrings against Hinduism. The second challenge faced by CSOs is the desensitization of Dalit women who unquestioningly accept religious sanctions as divine and inevitable. The CSOs respond to these challenges by framing their advocacy projects as projects that involve the pursuit of human rights in general and not as a revolt against Hinduism specifically. By adopting a human rights approach, they avoid antagonizing dominant high caste Hindus and rather aim to shift their perspective to one in which Dalit women are seen as human beings who, just like them, have inalienable rights. Whilst this approach seems efficient, it has unfortunately not been able to achieve the desired results. Specifically, although it has heightened the desire of Dalit women to free themselves, it has had the unintended effect of increasing anti-Dalit sentiment among upper-caste Hindus (the interviewee from SSVK noted that upper-caste people become more violent when Dalits try to revolt against their oppression). This means that the heightened consciousness among Dalit women to free themselves is likely to be met by further atrocities at the hands of upper-caste Hindus. The fact that state institutions like the police and the courts are unprepared to meet their responsibilities worsens the issue. Therefore, to face institutional-level challenges posed by state apparatus, the CSOs have resorted to collective action and activism while simultaneously joining forces with international and national organizations, and engaging the services of the Human Rights Commission. Finally, the CSOs engage the media and publish their own reports in an attempt to highlight state-level challenges internationally, which will increase the pressure on these institutions to act. Importantly, the CSOs have been highly sensitive in tackling the challenges faced at the family level considering the fact that the institution of family constitutes one of the main pillars of Indian society. The economic dependence of Dalit women on the male members of the family, domestic violence, alcoholism (among male members) as well as the social, cultural and religious factors that bind the Indian family unit, constitute major hindrances to the CSOs ability to deal with family-level challenges. The CSOs therefore face the difficult challenge of empowering Dalit women within the household without jeopardizing their family life. This is where sociological and 2016 THE UNIVERSAL

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ethnographic critiques against Western notions of feminism as being context-blind become more forceful. Nonetheless, it seems as though the approach may deliver long-term results. The CSOs primarily rely on counselling and negotiations to deal with family level violations and injustices. Extreme cases such as brutal physical / sexual violence or murder are taken to the police. With a firm belief that economic independence will empower Dalit women at the household level, the CSOs offer the women credit and banking facilities at low or no rates of interest. They also provide, induce and encourage Dalit women to engage in self-sustaining business ventures that will permit them to have regular income. This will make them financially self-reliant as well as put them in a better position to support their families and ensure the education of their children, thereby offsetting the social mobility problems that their caste inflicts. Moreover, increased family income as a result of womenâ&#x20AC;&#x2122;s access to credit will ease the pressure on the men as the sole breadwinners, reducing the necessity of accepting dangerous and degrading jobs like manual scavenging. Dalit men are therefore likely to cooperate with the CSOs and accommodate their activities, which will likely reduce family-level violence significantly. However, at the community level, the ways in which the CSOs respond to the challenges may produce mixed results. Indeed, the provision of separate community resources such as water, toilets, schools, health-care centres for Dalits is a safe way of preventing them from clashing with upper-caste people. However, this strategy only postpones the real problem: exclusion. We anticipate that this way of tackling the caste issue at the community level might lead to further ossification and division between Dalits and the upper-caste people. Perhaps, mobilization as a strategy to deal with all level injustices constitutes the most effective approach in both the short and long term. In the short term, collective opposition not only shields individual Dalit women from direct attacks, but it also forces upper-caste people to interact with them. With time, as happened in the washing of the temple, the power of the Dalit womenâ&#x20AC;&#x2122;s collective resistance will overcome upper-caste resistance and thereby force upper-caste people to discontinue their segregation treatments. Coupled with the use of mass and social media, websites, publications, and forging alliances with international organizations, the caste issue will continue to reach global audiences, which will in turn pressure state institutions to act. 64 | T H E U N I V E R S A L 2 0 1 6


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1.5 CONCLUSION As was the case during colonial times, the anti-caste movements of today’s India are faced with the socio-political and religio-cultural factors that have, since time immemorial, kept caste-based injustices in place. In spite of their perpetuation, the ways in which movements respond to the various levels of challenges remains underresearched. This study has examined how Dalit women CSOs in India respond to the chain of factors associated with caste-based discriminations that feature at the levels of the family, community, state institutions and the Hindu religion. As such, this study contributes to the ever-contentious caste issue by offering insight into the ways in which upper-caste people’s quest to maintain the caste status quo plays out against that of lower-caste people’s attempts to change the system for a more egalitarian life.

AUTHOR’S PROFILE Festival Godwin Boateng holds a BA in Sociology & Social Work (with Political Studies as minor program) from the Kwame Nkrumah University of Science & Technology, Kumasi-Ghana and a MSc in Global Studies & International Development Studies from Roskilde University.

Swapanil Reesha Sharma holds a MA in Sociology from the University of Mumbai, India and is a social worker by profession. She has worked in the NGO sector India on women’s rights, and children from diverse underprivileged backgrounds. She holds MSc in Global Studies from the Roskilde University.

Caroline Winkler holds a BA in Social Work from the EHS – University of Applied Science for Social Work, Education and Nursing in Germany. She completed the first of her two-year Erasmus Mundus Global Studies (EMGS) master program at the University of Leipzig and the second at the Roskilde University.

Erika Matadamas holds a BA in Global & International Studies from the University of California, Santa Barbara. She completed the first of her two-year Erasmus Mundus 2016 THE UNIVERSAL

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Global Studies master program at the Roskilde University in Denmark and the second at the Leipzig University, Germany.

REFERENCES Agarwal, S 1999, Genocide of women in Hinduism. Sudrastan Books, Jabalpur. Available from: <http://asimiqbal2nd.files.wordpress.com/2009/06/women-in-hinduism.pdf> [11 November 2014]. Ambedkar, BR 1946, Who were the Shudras? Available from: <http://164.100.47.134/plibrary/ebooks/Jagjivan%20Ram/(sno%207)jagjivan%20ram%201.pdf> [10 November 2014]. Channa, SM 2013, Gender in South Asia. Social Imagination and Constructed Realities, Cambridge University Press, Delhi. CIVICUS World Alliance for Citizen Participation 2011, Report on the Challenges Faced by Women in Civil Society in Africa. Available from: <http://www.civicus.org/view/media/Challenges_Faced_by_Women_in_Civil_Society_in_Africa.pdf> [11 November 2014]. Human Rights Watch & the Center for Human Rights and Global Justice 2007, ‘Hidden Apartheid’: Caste Discrimination against India’s “Untouchables”. Available from: <http:// www.hrw.org/sites/default/files/reports/india0207webwcover_0.pdf> [13 November 2014]. Human Rights Watch 2014, Cleaning Human Waste: Manual Scavenging, Caste and Discrimination in India. Available from <http://www.hrw.org/sites/default/files/reports/india0814_ForUpload_0.pdf> [10 November 2014]. International Dalit Solidarity Network, IMADR 2014, Promotion and Protection of Human Rights, Stigma, Untouchability and caste-based Discrimination. Available from: <http://idsn. org/fileadmin/user_folder/pdf/New_files/UN/HRC/HRC21_written_statement_-_water_ and_sanitation.pdf> [11 November 2014]. Irudayam, A, Mangubhai, JP & Lee, J 2006, Dalit Women Speak Out: Violence against Dalit Women in India. Chennai: National Campaign on Dalit Human Rights, National Federation of Dalit Women, and Institute of Development Education, Action and Studies. Jones, R 2014, The intersection of caste and women’s rights in India. Available from: <http:// www.dpiap.org/resources/article.php?genreid=11&id=0000375&genre=Women+with+Disab ilities> [11 November 2014]. Kumar, A 2013, The plight of Dalit women: Why it’s time to end the caste system both in India and the UK. Available from: <http://blogs.independent.co.uk/2013/07/04/the-plightof-dalits-women-why-its-time-to-end-the-caste-system-both-in-india-and-the-uk/> [12 November 2014]. Luitel, S 2003, The Position of Dalit Women in Caste System. Available from: <https://www. repository.cam.ac.uk/bitstream/id/533596/> [12 November 2014]. Mahanta, U 2012, ‘Transnational Activism and the Dalit Women’s movement in India,’ in Global Civil Society Shifting Powers in a Shifting World eds by H Moksnes & M Melin, Uppsala Universitet, Uppsala, pp. 140-148.

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Navsarjan Trust (India), FEDO (Nepal) & the International Dalit Solidarity Network 2013, The Situation of Dalit Rural Women. Available from: <http://www.ohchr.org/documents/hrbodies/cedaw/ruralwomen/fedonavsarjantrustids.pdf> [10 November 2014]. Patra R & Velassery S 2013, ‘Casteism: Onto-Genesis of an Ideology of Exclusion’, International Journal of Humanities and Religion IJHR, vol. 2, no. 2, pp. 44-54 Riser-Kositsky, S 2009, ‘The Political Intensification of Caste: India Under the Raj’, Penn History Review, vol. 17, Iss. 1

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DEFINING LOCAL PROBLEMS Kamilla Fals ted Dihle

1. INTRODUCTION Since its creation in 1989 the Convention of the Rights of the Child has been the most recognized Human Rights Treaty in history. Today, it is recognized by 193 countries, with the US and Somalia the only UN-member countries not party to the treaty. The Convention of the Rights of the Child reflects the rights that are considered universal for all children worldwide. This includes freedom of expression, healthcare, education, and the right for children to be united with their parents if beneficial for the child. Its aim is to create a mandate that allows the international society to interfere if human rights are not being met, while at the same time being flexible when it comes to different cultural interpretations in different countries.1 Motivated by the importance of understanding human rights from an empirical point of view, I conducted 3 months of ethnographic fieldwork in Dar es Salaam, Tanzania. My aim was to understand why street boys in Tanzania preferred living on the street over using the programs offered to help them.

2. METHODOLOGY In order to understand the choice of living on the street, I compared the ways in which street boys experience conditions in their original homes, in the programs offered by the NGO’s, and living on the street respectively. To enable this comparison and to gain insight into a world I could not access myself, I carried out my fieldwork using qualitative methods, namely participatory observation, semi-structured and open interviews, as well as videos and photographs taken by a former street boy. My empirical findings are based on 20 informants, of whom 17 were interviewed, including current street boys, former street boys, as well as employees from five local NGO’s. All semi-structured interviews were recorded and transcribed, while the open interviews and participatory observations were written down by hand. To respect the 1   http://www.boerneraadet.dk/b%C3%B8rnekonventionen 68 | T H E U N I V E R S A L 2 0 1 6


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diversity of street children, I chose to narrow my target group, focusing on boys aged 13 to 18 years. This article will highlight the main empirical findings from the fieldwork, as well as my suggestions on what can be done to improve the programs offered by the NGO’s.

3. THE INCREASE OF STREET CHILDREN From a regional perspective, Tanzania holds a relatively positive status in the context of human rights. According to the World Bank, Tanzania has embraced most Human Rights instruments, including institutional frames that support democratic governance and the actual implementation of Human Rights. In 2011, Tanzania accepted the UN’s recommendations, which were developed in tandem with the UN’s periodical judgment of the human rights situation in the country. This shows a willingness on the part of the Tanzanian Government to cooperate when it comes to strengthening human rights in the country. However, despite the relatively positive status, the country still requires essential improvements in human rights for ordinary people.2 One of the biggest concerns, and as such a major focus area, is street children’s lack of enrolment in the education system.3 Currently, more than 5000 street children exist in Tanzania – 40 % of which are located in Dar es Salaam. With a population of approximately 4 million people, Dar es Salaam is considered the biggest city in Tanzania (Lugalla & Mbwambo 1999, p. 330), as well as the richest. Despite losing its place as Tanzania’s capital, it continues to be the economic hub of the country (Fairhurst, Rowswell & Nhleko 2011, p. 10). As a result, Dar es Salaam is an attractive destination for street children. Importantly, in spite of the growing number of street children compared to other cities in the country, there is a paucity of research on the topic (Shrestha 2009, p. 1). The Tanzanian government has shown concern regarding the increasing number of street children and, as such, has hosted several conferences where different stakeholders have been invited, including NGO’s, international organizations and government personnel. Despite this, however, there are yet to be any programs displaying any ground-breaking developments (Shrestha 2009, p. 2).

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4. THE REASONS FOR LEAVING “In [the shelter] you can’t stay for a long time, they see if you are behaving to become better and then they take you back home.” Jamesi, 18 years old. The above statement was not a rare one among my informants and was often used to explain why they were no longer with an NGO. The majority of my informants had at one time or another been enrolled in one of the programs offered by the NGO’s but soon decided to return to the independent life available on the street. Let me introduce Musa, whose story resembles the story of many street boys. Musa lived on the street for 7 years. He arrived in Dar es Salaam as an 8 year-old boy and did not get a permanent place to live until he was 15 years old. He used to sniff glue, but when he could afford it he would smoke hash – financed mainly by money earned from washing cars. He lived with 10 other boys on the street. While he stayed at several different shelters offered by the (local) NGO’s, this was only for short periods of time. Due to a lack of money for clothes, he continued to return to the street in the evenings to wash cars. However, upon returning to the shelter in the morning he would be beaten for running away – a common occurrence faced by many children, according to Musa. Furthermore, he maintained that NGO employees would take NGO money for their own private use, a reason why one of the NGO’s ended up closing down. These circumstances are relatively similar to those experienced by many street boys at home, which motivated them to move to the street in the first place. Most of my informants actively chose to leave their homes as a result of general poverty, including a lack of food, making the search for a job and earning money a necessity. Physical and mental abuse was also given as one of the main reasons for leaving home (Lugalla & Mbwambo 1999, p. 334). In other words, most street children in Tanzania are not orphans but rather choose to leave their families in search of an independent life where they can control their own conditions. These empirical findings draw unfortunate similarities between the street boys’ homes and the shelters established by the NGO’s.

5. WHEN SOLUTIONS BECOME THE PROBLEM The mission statement of the Convention of the Right of the Child underlines that: “…family is society’s fundamental group and a natural environment for its members, especially the children’s growth and well-being” (Valentin 1998, p. 60). Further70 | T H E U N I V E R S A L 2 0 1 6


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more, Article 18 highlights under child rearing that the state has the obligation to ensure that parents or guardians have the main responsibility for a child’s upbringing.4 As noted by the anthropologist Panter-Brick, certain societies confronted with poverty have children as major providers, which directs protection and provision from child to parent and not the intended opposite (Panter-Brick 2002, p. 150). This statement emphasizes the fact that the UN’s definition of family, and its position when it comes to children, is in fact normative (Valentine 1998, p. 60). It became relatively clear that, according to the local NGO’s I came into contact with during my fieldwork, family reunification constitutes the most desired rehabilitation method. This is not a coincidence but reflects the unequal relationship between international organizations and local NGO’s. Research points to a dependence of local NGO’s on international NGO’s, which limits the ability of local NGO’s to develop independent initiatives that take local conditions into account (Amutabi 2006, p. xiii). The international categorization of street children, which defines how local NGO’s carry out their programs, is being produced and reproduced by a dominant Human Rights discourse (Panter-Bricks 2002). The discourse favours institutionalization and undermines the structures that exist on an informal level. The positive attitude towards family reunification fails to fit in with the boys’ own experiences of living at home and as such fails to respect the opinions and preferences of the boys themselves. The tendency to measure the condition of children according to whether they live at home or not simplifies the problem. In fact, several studies show that children of poor families who have chosen to live on the street are not at the mercy of irregular income because of their strong solidarity networks on the street (Panter-Brick 2002, p. 161). It is therefore important to eschew the constructed necessity of moving children from the so-called chaotic and unclean street-life, to an environment where social hygiene exists, in other words institutionalized care (Ennew & Swart-Kruger 2003, p. 92). Firstly, the asymmetrical donor-receiver relationship should be dealt with as a direct problem and, secondly, NGO’s should be encouraged to conduct independent research and work that can challenge the assumptions that exist on a macro level. In other words, future attention should be given to programs developed at the local level and thereby prioritize local knowledge. According to my empirical findings, street boys aged 13 to 18 have a need to be independent, which stems from the cultural 4   http://www.unicef.org.uk/Documents/Publication-pdfs/UNCRC_summary.pdf 2016 THE UNIVERSAL

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expectation that boys are required to provide from early age. Inadequate home conditions caused by poverty only enhance the boys’ need for independence. On this basis, I highlight the importance of making family reunification an individual choice rather than giving it first priority. An alternative solution could take the form of a foster home that maintains ties to both their life and/or new family on the street: a family that includes the group of people that the boys belong to on the street. The boys have already made many crucial choices in their lives and so the decision regarding their current and future situation should take their own preferences into consideration. Furthermore, the shelters should be more flexible, adapting to the life that the street boys have built on the street. Rather than developing programs that remove these boys from the street, the shelters should strengthen their capabilities to survive on the street. In other words, focus should be centred on the development of a program that enables the establishment of a support-shelter. 6. A LIFE OF INDEPENDENCE My informants consistently emphasized their preference for living on the street rather than returning to their family of origin or staying at a shelter with limited resources. In other words, the street gives them access to opportunities, which the previous family conditions or the NGO’s institutionalized conditions cannot give them. According to the UN, street children appear to be “out of place” – in a place where they do not belong (Panter-Brick 2002, p. 160). However, in light of both the many street activities carried out by the street boys and also the strong network that exists, the UN’s definition of street children seems misleading. If life on the street is equated with being “out of place”, institutionalizing the child emerges as the most favourable and beneficial way of dealing with these children (Ennew & Swart-Kruger 2003, p. 92). However, as Musa’s story demonstrates, employees stealing money from the NGO’s motivates street boys to return to the street where a less institutionalized existence provides the freedom to navigate and adapt to sources of income. A narrow focus on isolated categories gives street children a lot of attention from the NGO’s and in the public debate, which consequently overlooks other marginalized groups that are quantitatively bigger (Valentin 1998, p. 60). My point is that there is a misplaced tendency to develop programs that only focus on improving the street boys’ situation but fail to take into consideration the human beings that create the context in which 72 | T H E U N I V E R S A L 2 0 1 6


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the street boys are put in. The pervading poverty evident in the cities and villages is neglected (Panter-Brick 2002, p. 152). Furthermore, the lack of attention being paid to those that run the shelters allows other important factors to be ignored, namely corruption and other bad conditions faced by street boys in the shelters such as lack of food and use of violence. Future objectives to establish budgets that respect the employees’ fundamental needs, which will support sustainable life conditions, would improve the conditions at shelters and thereby create a better foundation for the street boys to thrive. When operating in a country dominated by poverty, the relationship between child and family/NGO is not as one-dimensional as the Convention of the Rights of the Child prescribes. My empirical findings illustrate the ways in which these street boys can be perceived as active individuals who have taken control of their own lives, rather than as passive victims of neglectful families or NGO’s. They are individuals who may find themselves in a dilemma whereby they are forced to choose between the prescribed rehabilitation programs offered by the NGO’s or the “free” life offered by the street (Valentin 1998, pp. 60-61).

7. SHOPPING FOR DIFFERENT PROJECTS “Children manipulate their own identities accordingly; they shop around different projects, and may even say that non-governmental organizations are their ´clients´.”(Ennew & Swart-Kruger 2003, p. 92) The street boys seem to navigate between two different positions. The first position is defined by the international community and influenced by the Convention of the Rights of the Child, in which the child is perceived as vulnerable and in need of help – which in this case involves removing the child from the street. The second position is defined by the informal sector, the local position, which in this case is the street, where entrepreneurship and self-dependency dominate. The street boys are thereby caught “between” local and global understandings of childhood, which make it impossible for them to be defined as belonging to a particular culture on the one hand or belonging to a global homogeneity on the other (Anderson 1998, p. 107). Navigating these contrasting positions constitutes a form of shopping between the different projects the NGO’s have to offer. Essentially, the street children are unable to succinctly fall into global society’s universal definition of street children. Consequently, by only staying at NGO’s sporadically, 2016 THE UNIVERSAL

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the street children have been able to benefit from the NGO programs whilst still maintaining their network and interests on the street. In other words, by not becoming too institutionalized they can still be their “own man” on the street. Importantly, the street boys’ active decision to live on the street demonstrates what the street has to offer, which their families and the NGO’s cannot. Specifically, both the original families and also the shelters, demand that the street boys follow certain structures and behave in certain ways. Furthermore, the street boys dependence on their families’ or the shelter’s ability to deliver basic necessities such as food and clothes makes it risky to stay. In other words, an institutionalized life defined by western ideals of childhood where an informal sector does not exist is an unrealistic approach given the current context of how these street boys live. Institutionalization, in a country where a huge part of the population lives in poverty, not only creates an unsafe environment marked by corruption and frustrations, but it also robs the street boys of the flexibility necessary for survival. The street boys’ rejection of their original families and shelters shows a need for independence that can only be found on the street – in spite of its association with violence and abuse. Essentially, the possibility of taking control by creating strong networks and facilitating flexibility, solidifies independence and mobilizes new networks and work tasks more than the institutionalized programs offered by the NGO’s.

8. RESPECTING DIVERSITY It must be emphasized, that the article does not seek to outline general trends in the phenomena of street children worldwide. Rather, it seeks to illustrate the situation and needs of street boys aged 13 to 18 living in Dar es Salaam, Tanzania. It is acknowledged that there are street children whose needs are covered by other approaches and initiatives. This article, however, illustrates the necessity of taking gender and age into account in the Convention of the Rights of the Child, whilst also underlining the importance of respecting street children’s diversity and needs. It illustrates that the universalistic etymology that has come to dominate both the theoretical and practical approaches in the field of street children ignores groups that – for cultural as well as personal reasons – do not fit in with the Western construction of childhood. Moreover, the article emphasizes the importance of not merely questioning factors defined by international society as problems but also attempting to define these problems 74 | T H E U N I V E R S A L 2 0 1 6


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according to local knowledge and practices. In conclusion, it is noted that through empirical findings and cross-disciplinary collaboration, we can work towards more refined human rights initiatives, whether they concern the rights of children, indigenous people or minorities.

AUTHOR’S PROFILE Kamilla Falsted Dihle holds a MSc in anthropology from the University of Copenhagen, specialized within development work in East Africa. Kamilla is a board member at CreativeMindsCph and is currently working as an AC consultant for a municipality in Greenland.

REFERENCES Amutabi, MN 2006, The NGO factor in Africa. The Case of Arrested Development in Kenya, Routledge, New York. Anderson, M 1998, ‘Transnationale Bardomme: Refleksioner over børnemigranter og identitet’, Tidskriftet Antropologi, Foreningen Stofskifte, nr.38, pp. 107-116. Ennew, J & Swart-Kruger, J 2003, ‘Intorduction: Homes, Places and Spaces in the Construction of Children and Street Youth. Source: Children, Youth and Environments’, Street Children and Other Papers, vol. 13, No. 1, pp.81-104. Eriksen, TH 1995(2001), Small Places, Large Issues. An Introduction to Social and Cultural Anthropology, Pluto Press, London. Fairhurst, L, Rowswell, P & Nhleko, L 2011, ‘Temeke Municipality, Dar es Salaam Baseline Study’, ICLEI – Local Governments for Sustainability Africa, Dar es Salaam, Edited by: Lucy V. Kemp and Sarah Birch. Lugalla, JLP & Mbwambo, JK 1999, ‘Street Children and Street Life in Urban Tanzania: The Culture of Surviving and it’s Implications for Children’s Health’, International Journal of Urban and Regional Research, 23: 329–344. Panter-Brick, C 2002, ‘Street Children, Human Rights, and Public Health: A Critique and Future Directions’, Annual Review of Anthropology, vol. 31, pp. 147-171. Renteln, AD 2013, International Human Rights. Universalism Versus Relativism, Quid Pro Books, Louisiana. Shrestha, P 2009, ‘Reaching the marginalised – How to approach Inclusive Education’, International Conference at Peter Ustinov Stiftung, Düsseldorf, Germany, pp. 1-3. Valentin, K 1998, ‘Storbyens Børn – en risiko?’, Tidsskriftet Antropologi, Foreningen Stofskifte, nr. 38, pp. 55-64.

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TRANSNATIONAL MIGRATION IN A COSMOPOLITAN WORLD SEYLA BENHABIB AND NANCY FRASER’S THEORIES IN PRACTICE Clara Iglesias Rodríguez

ABSTRACT The aim of this paper is to present and discuss Seyla Benhabib and Nancy Fraser’s feminist critical models of the public sphere through a case study. The discussion surrounding the globalization of the public points to a lack of inclusivity present in our current understanding of the public sphere and modern democracies. As such, it demands a more inclusive realm capable of dealing with the challenges of the post-Westphalian frame. The case of transnational migration represents a big challenge to these theories, as does the case presented here: the issues raised by migrants attempting to irregularly access the EU through Melilla, one of the Spanish borders in North-Africa. With a specific focus on migrants rights, this article presents and compares Fraser and Benhabib’s current models of a post-Westphalian cosmopolitan or transnationalized public sphere. Finally, I offer a brief contrast of their ideas and propose a more inclusive integrated model, incorporating Benhabib’s law of hospitality and her notion of democratic iterations as well as Fraser’s all-subjected principle and the notion of participatory parity.

1. INTRODUCTION This article presents the key aspects of Seyla Benhabib and Nancy Fraser’s current theories on the global public sphere through a case study on transnational migration. Both philosophers defend a reconstruction of the critical model of the public sphere in order to account for the new transnational and international space of political justice, which has been opened by the processes of globalization. Benhabib and Fraser both acknowledge the importance of rooting the transnational aspect of this new realm in 76 | T H E U N I V E R S A L 2 0 1 6


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principles that support inclusivity and allow all subjects, independent of their citizenship status, to be represented and participate in the public discussion. They present the challenges of the global public sphere as a post-Westphalian or transnational issue transcending the limits of bounded (national) communities. Within the discussion of the new global public sphere and its link to social justice, Fraser and Benhabib are the two most prominent critical feminist theorists to have kept a strong connection to minority representation and inclusion. Both challenge and discuss the topic of a “transnationalized” (Fraser 2008) or “cosmopolitan” (Benhabib 2006) notion of the public and its consequences. I believe that the comparison and combination of Benhabib and Fraser’s theories could help to create a new model of democratic justice that will improve the understanding of the connection between justice and public, and represent the currently disregarded voices of minorities. Through their theories, Fraser and Benhabib justify the movement from exclusion to inclusion with an open idea of the public sphere. As such, the notion of inclusion plays a central role in this paper as the common ground linking both theories. To put Benhabib and Fraser’s theories into practice, the paper analyzes an incident at the Melilla border fence during the month of September 2013. My objective is not only to illustrate the analytical potential of both theories but to also demonstrate the possibility of combining them in order to best address the issues that this case presents.

2. THEORETICAL OVERVIEW In much recent political theory – critical theory, feminist studies, deliberative democracy, republicanism etc. – a close link is invoked between the public sphere and the standards of democratic justice. Following the transformation of the Westphalian (nation-state) frame within current democracies by transnational migration, the globalization of politics and the internationalization of institutions, this link has become extremely problematic. In other words, what we call the public is no longer restricted by geographical borders. This new realm calls for the standards of democratic justice to be rethought, forcing us to rethink the foundations of critical public sphere theory in the new light of globalization. According to Benhabib (2006), a law must exist that is superior to the positive law of the state in that it can bend “the will of sovereign nations” (Benhabib 2006, p. 16) 2016 THE UNIVERSAL

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in order to protect the rights of “strangers”, “legal” or “illegal” migrants. This “higher” law is drawn from Kant’s doctrine of cosmopolitan rights, the universal law of hospitality. By combining this Kantian law of universal hospitality and the principles of human rights, Benhabib presents a new model of justice that allows for the representation of public moral and ethical concerns as the new cosmopolitan norms – norms that can become part of the positive law, or at least acquire positive legal status. The other important notion for this paper is Benhabib’s complex notion of democratic iterations, which facilitates addressing cases of misrepresentation within democratic states: “In several works over the last decade, I have developed a model of ‘democratic iterations’ for thinking about the interrelationship of international human rights norms, enshrined in various treaties, and the democratic will-formation of different peoples. One of my goals in elaborating the concept of ‘democratic iterations’ has been to combat the very wide misunderstanding about how the system of cosmopolitanism works.” (Benhabib 2013, p. 477) Democratic iterations embody the changes that the global civil public introduces into the nation-state structure by incorporating immigrant practices and allowing them to fight for representation (Benhabib 2006, pp. 45-80). The process of democratic iterations resembles a constant movement towards inclusion, whereby minoritarian practices are actively adapted and incorporated into democratic norms. The discussion provoked by the process of democratic iterations allows for the reinterpretation of core principles such as constitutional rights. Benhabib’s model is a well-structured, revisited cosmopolitanism that acknowledges the limitations of the nation-state frame and, by favoring the notion of hospitality over sovereignty, challenges the notion of the nation-state. Moreover, through democratic iterations it provides a structural solution that reduces minorities’ lack of representation and as such challenges the “will of democratic majorities”. Fraser’s model of the transnationalized public sphere “consists of a three-dimensional view of the “what” of justice, encompassing economic redistribution, legalcultural recognition, and political representation, all of which are overarched by the normative principle of participatory parity” (Fraser 2010b, p. 285). The notion of participatory parity – the active and equal inclusion of all in the debate – will then work as the ground rule for the “what” of justice. This characterization of a threedimensional structure for economic, social, and political analysis, which is rooted in 78 | T H E U N I V E R S A L 2 0 1 6


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the three standards of democratic justice, challenges the nation-state frame by asking: “Who counts as a subject of justice? Whose interests and needs deserve consideration? When it comes to struggles for economic redistribution, cultural recognition, or political representation, who exactly belongs to the universe of those entitled to make justice claims on one another?” (Fraser 2010b, p. 281) The notion of misframing views the questions of participatory parity and “abnormal justice” (Fraser 2008a) as central, in that a more inclusive realm is needed over the one founded by the nation-state frame. In turn, this new realm requires a new principle that can solve the problem of the ‘who’ and can provide a more appropriate guideline to address membership issues. Fraser presents the public as inter-territorial in the sense that the claims raised nowadays – whether regarding immigration, women’s rights, global warming, unemployment or terrorism – are seldom within the borders of a nation-state, either concerning the nationality of the actors speaking up about the issues or the issues themselves. In light of this, Fraser turns to the all-subjected principle that maintains that all subjects of the public have the right to equally debate and be represented in the public sphere in order to determine who should be included in the debate. This contradicts the factual norm of our current democracies where only citizens have the right to participate. She argues that the all-subjected principle embodies a stronger connection between the public and its institutions and the concept of global governance to which we are all subjected. The notion of subjection can fully satisfy the requirements for a critical theory of the transnationalized public sphere because it “could mitigate, if not overcome, our current mismatches of scale among public spheres, private powers, and political institutions” (Fraser 2014, p. 150). Such benefits of utilizing the all-subjected principle to determine the “who” of public sphere theory are asserted even though this might resemble an argument for an overarching global regime. The problem here, however, is the lack of common international legislation regarding the entrance of migrants in a bounded community or nation-state.1 Nowadays, while the right to emigrate may be fully legislated, migration is regulated by treaties,

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which are highly dependent on the countries in question. Fraser echoes this problem of social exclusion, especially in her article “Injustice at Intersecting Scales” (2010a), in which she develops the notion of the “transnational precariat” – a term that invokes a variety of justice struggles, including economic (distribution of economic means), social (lack of recognition and exclusion), and political (lack of representation and exclusion). Given that transnational migration is one of the most challenging issues in democracy today, the tensions that Benhabib describes between the local, the national and the global, which crystallized in the concept of democratic iterations, are particularly central here. The case of transnational migration is especially interesting because it deals with many of the core aspects from Fraser and Benhabib’s theories, namely inclusivity, ethical responsibility, hospitality, subjectedness, misrepresentation and democratic iterations. It poses a specific question that is actually twofold: We have the question of inclusivity within bounded communities where they are regarded as minorities, and have to fight to be recognized as part of the community; and the problem when pressing at the border, either by requesting entrance or by entering a nation-state irregularly.

3. TESTING BENHABIB AND FRASER’S MODELS The case that I present takes place in Melilla, one of the two Spanish cities in North Africa, the other being Ceuta, bordering Morocco. The Melilla and Ceuta border fences were built by the Spanish government in an attempt to prevent immigration and smuggling from Africa, and have been problematic since their construction in 1998 and 1993, respectively (Touré 2005). In the last 20 years, the high number of migrants and asylum seekers waiting by the Melilla and Ceuta border fences – with hundreds of people trying to cross the border – has led both the Spanish and Moroccan governments to intensify their security measures (Kassam 2014). This has meant increasing the vigilance in the surrounding area, as well as the implementation of a razor wire barrier in Melilla in 2013, similar to the already-existing one in Ceuta. The extension of the barbed wire-topped fence caused a huge debate within Spain and in the EU, where this measure was seen as extreme (Abellán and Ramos 2014). The debate amongst the Spanish public regarding strengthening border vigilance 80 | T H E U N I V E R S A L 2 0 1 6


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measures is, as of January 2015, still ongoing in spite of the fact that the economic, political and social crises have relegated it to a less pressing topic in the media. An additional issue raised by the tensions at the Melilla border fences is the irregular evictions allowed and supported by the Spanish police forces. Specifically, most of the immigrants who succeed in jumping the fence are instantly taken back to Morocco rather than to one of the detention centers (Associated Press in Madrid 11 December 2014; Blasco de Avellaneda 2013).

3.1 THE MELILLA BORDER FENCE INCIDENT During September 2013, approximately 100 people attempted to jump the Melilla border fence, catapulting the area into the media spotlight (Moh 2013). Many reports pointed towards police brutality against the immigrants, who were not only shot while trying to jump the fence but cut by the barbed wire at the top of the fence. Sadly, this incident is not isolated (Kassam 2014; Burridge 2014b). Prior to attempts to circumvent the fence, immigrants wait for long periods, months or even years, camped out near the border at the Gurugú Mountains (Burridge 2014). Interviews with those staying at the improvised camps in the Gurugú Mountains revealed that police brutality is common. Furthermore, not only is there little to no access to proper channels to tackle this violence, but there is also limited access to obtain legal permits to cross as asylum seekers, political refugees, etc. (Doncel 2014). The incident of the Melilla border fence introduces the question of transnational migration and how to regulate it, with particular focus on the exclusions that the migrants suffer.

3.2 FROM THEORY TO PRACTICE In analyzing the “Melilla fence case”, I focus on three moments of exclusion: before attempting to access the EU, during the attempt, and after the attempt. In order to compare Benhabib and Fraser’s theories, I show how they diagnose and analyze the case with regards to human rights violations, abuse of power, economic, social and political exclusion, and administrative struggles associated with attempts to enter another country. 2016 THE UNIVERSAL

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I will start the analysis with Benhabib’s theory, focusing on the violation of migrants’ human rights before and during the jumps. Considering that this case involves a group of people with challenges surrounding their citizenship statuses and/or rights, the suitability of the law of hospitality is clear. In examining the hospitality norm before the incident, one is presented with a group of displaced people trying to seek refuge and/or asylum in a sovereign country with peaceful intentions. As such, under the umbrella of hospitality, Spain should have accepted their entrance into the country, or at least have officially dealt with the situation. If we consider the case during and after the incident, the peaceful intentions were not met, in that while the immigrants may have actively ‘entered’ a sovereign country without permission, their rights were violated, they were subjected to police brutality and they were not recognized (even as asylum seekers). If the law of hospitality were in place, then some measure of limitation for entering – or at least staying in a new country for a long period of time – would be enforced, perhaps similar to current international regulations. This presents a scenario where the country in question acts according to the EU policy: officials allow the migrants to stay until his or her case is reviewed, which ends either in the granting asylum or evicting the person. The problem with transnational migration is that the sovereign country is forced to initially allow the migrant to enter, which introduces the critical question surrounding limited resources: how can the nation-state provide for all the new subjects? In such a scenario, Benhabib’s idea of ethical responsibility helps explain the necessity of hospitality. In the case I presented, the Spanish and Moroccan authorities in fact elude to this ethical responsibility by failing to acknowledge both the migrants and their claims. Moreover, the two governments created an almost impossible situation for the migrants: Not only were they prevented from getting close to the border in order to apply for asylum, but they were forbidden from remaining on Moroccan soil (Burridge 2014). These were circumstances that, combined with their previous desperation, triggered the migrants’ attempts to enter Spain and the EU at any risk. The existence of migrants’ testimonies, which articulate the ways by which they crossed many times from Morocco, constitute proof that the Spanish and Moroccan authorities are failing to adequately implement EU deportation regulations (Cué 2014). This in itself amounts to an abuse of power, and as such contradicts the norm of hospitality. There is a tension, extensively explained by Benhabib, between the obligation to provide refuge and asylum and the obligation to protect the nation-state. It is clear, therefore, 82 | T H E U N I V E R S A L 2 0 1 6


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that the law of hospitality must prevail over sovereignty whilst not necessarily overruling it. Benhabib points out that while there are rules and norms surrounding the right to leave a country and the right to citizenship, no such framework exists about the right to enter a new country; so although international relations with regard to this matter have developed widely in the last few decades, this issue remains unresolved. The exclusions that the people in the Melilla case suffered are clear: they are excluded from the right to full citizenship, they are refugees, and the kind of violent situations in which they were living while waiting qualify as privation of their basic rights. The idea of democratic iterations aids this debate; specifically, it is evident that there is a lack of representation of migrants which calls for a rethinking of democracy. Moreover, this problem of misrepresentation calls for a negotiation between hospitality and sovereignty. Even the migrants who managed to cross the fence are still facing the same type of discrimination and have no tangible right to be part of the community. The concept of democratic iterations can reduce the problem of exclusion by allowing them to participate in political and social life. Benhabib stresses the fact that “universalist norms are mediated with the self-understanding of local community” (Benhabib 2006, p. 71). This means that a mixed realm already exists, and while it may not resemble a truly cosmopolitan public sphere yet, in the very least it constitutes a promising prototype that can develop in the right direction. It is for this reason that: “Rather than seeing this situation as undermining democratic sovereignty, we can view it as promising the emergence of new political configurations and new forms of agency, inspired by the interdependence--never frictionless but ever promising--of the local, the national and the global.” (Benhabib 2006, p. 74) We can observe this change in the public sphere because this new political configuration is already transcending national boundaries and challenging its most basic principles, such as sovereignty. Moreover, this move is reflected in current international laws, which try to balance sovereignty with less exclusionary migration norms by recognizing human rights, and especially the right to asylum, over sovereignty considerations. To sum up, the Melilla case illustrates the practical potential of Benhabib’s notion of hospitality combined with the concept of democratic iterations. Specifically, this combination can be said to provide a path to solving most of the problems that

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the case poses. The issue that remains evident within her theory is the more concrete matter of determining the extent of hospitality and the obligations of the sovereign state with regard to how many people the state has the obligation to refuge or provide asylum for. This is not merely Benhabib’s problem but an already common and urgent challenge that can be mitigated by the process of democratic iterations. In order to analyze the Melilla case from the perspective of Fraser’s theory, it is important to start by assessing the types of injustices that the people from the Melilla case suffered. In conjunction with the clear violation of human rights, the immigrants were subjected to economic and social injustices: they were living in extremely poor conditions in the hope of entering Europe, they risked being caught and arrested by the Moroccan police, or they risked being deported by the Spanish police. Furthermore, even if they succeeded jumping the fence, their future was far from unproblematic, as they would have to remain in holding while awaiting their sentence, facing recognition injustices and misrepresentation. Their situation corresponds to the types of injustices that “occur when a polity’s boundaries are drawn in such a way that to wrongly deny some people the chance to participate at all in its authorized contests over justice” (Fraser 2010a, p. 367). This type of injustice is characterized by Fraser as the deepest way of misframing, which leads to a misapplication of social justice. “Far from being of marginal significance, frame-setting is among the most consequential of political decisions. Constituting both members and non-members in a single stroke, this decision effectively excludes the latter from the universe of those entitled to consideration within the community in matters of redistribution, recognition, and ordinary-political representation.” (Fraser 2005, p. 77) Many NGOs have denounced the immigrants’ extreme situations in the detention centers, and last year the Spanish government opened an investigation in an attempt to address them (Crespo 2013). The abuse of power committed by the Spanish and Moroccan authorities contributes to the creation of an even more unjust scenario for the migrants, and their inability to fight these injustices becomes even more evident, adding relevance to the misframing diagnosis. The lack of recognition, resources and political power affects their lives in many different ways. I argue that the immigrants waiting by the Melilla border fence fit 84 | T H E U N I V E R S A L 2 0 1 6


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in the category of “the transnational precariat” (Fraser 2010a, p. 370). This concept works as a strong diagnostic tool identifying the type of exclusions suffered by minorities, which can be due to three overlapping injustices: economic, social and political. Importantly, their very “escape” from or leaving their home countries implies a degree of injustice, be it a level of ill-treatment in their home communities, limited economic support or material resources to have a decent life, or limited social status to progress or even participate in social life. These three parameters correspond to the three dimensions of social justice: redistribution, recognition and representation. It can be assumed that at least one of these broad injustices played a role in these people’s decision to jump the Melilla border fence, and while these three dimensions are interrelated, the political dimension of representation remains central in this case. The lack of resources forced the migrants into their current situation, however, their choice to remain in the situation rests on the fact that they are not entitled to the same rights as the rest. That is to say that there were clear injustices in how these people were treated – they were socially excluded before and after the issue in question. These problematic exclusions are aggravated due to the misframing of the situation; we are still trying to analyze them within a Westphalian perspective. Such a perspective appears somewhat unsatisfying, given the absence of a satisfactorily functioning transnational institution capable of addressing these situations. The notion of subjectedness can be helpful here, in the sense that it diagnoses the lack of a more inclusive institutionalized structure. As such, it offers the following analysis: In considering the implementation of a transnational ‘informal’ order (that requires further development), the migrants should have the right and agency to fight for their needs, even if that necessitates having to move to a different country, and while convincing or forcing a country to accept new subjects remains problematic, the least we can hope for is the provision of temporary inclusion while the nation-state considers the case. The problem that Fraser would have to address here is that these subjects lack any kind of communicative power, or political efficacy, as their voices are not being heard or represented. One could wonder whether this is a problem of framing or the consequence of the lack of a more inclusive transnational public sphere, both acknowledged by Fraser. In fact, this is one of the examples Fraser has presented herself in order to show the necessity of renewing public sphere theory; nowadays there are no existing effective institutions capable of dealing with the problem of transnational migration.

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We may have international institutions, such as the UN, to protect human rights, but they only have informal and moral power. To sum up, there is a high probability of delivering useful results about the background details of the original conditions of injustice or exclusion of the migrants through the concept of participatory parity and the three different dimensions of social justice. Fraser’s theory succeeds in diagnosing the core problems of the case; however, there is not enough support to provide a concrete path of solutions to these problems, and she lacks a more comprehensive theoretical structure. I will assume that this can be attributed to the currently incomplete state of her theory, and that it can be further developed.

4. TOWARDS A COMBINED MODEL In this last section, I sum up the results of the analysis in an attempt to provide a clear picture of the strong and weak points of Benhabib and Fraser’s theories. They share the importance of democratic inclusion and representation (as well as democratic legitimacy), the idea of reconstructing a critical theory of the public sphere, and the consequences of the globalization processes in the public arena. There is also the resemblance between the analyses achieved with the notion of participatory parity and the use of human rights as cosmopolitan norms, in the sense that they both reflect on the importance of an inclusive realm where exclusion should not be politically or morally tolerated. It is also important to note the ways in which the concept of democratic iterations could help develop a more inclusive transnational public sphere seeing as, even though exclusionary practices keep taking place, the threshold for justifying them is now higher. Sadly, this does not imply that the legislation or debate in this regard is always progressing. Rather it implies that: It becomes increasingly more difficult to justify practices of exclusion by democratic legislatures simply because it expresses the will of the people; such decisions are now subject not only to constitutional checks and balances into domestic law but in the international arena as well. (Benhabib 2006, p. 71) From this analysis we can conclude that Fraser’s approach is more detail-oriented, whereas Benhabib’s amounts to a more resolutive path of structured solutions. I believe that their theories provide a solid ground for developing a critical ‘global’ public 86 | T H E U N I V E R S A L 2 0 1 6


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sphere theory, and that both theories can complement one another. Where Benhabib’s theory embodies a more efficiently organized theoretical structure – such as the notion of hospitality and the idea of democratic iterations to reduce the exclusion of immigrants – Fraser provides a more detailed and concrete way of analyzing the conditions and the types of injustices that migrants suffer. The idea of combining Benhabib and Fraser’s theories is motivated by their common critiques regarding the foundations and developments of critical public sphere theory, articulated through the notions of inclusivity and democratic legitimacy. The dichotomy between inclusion and exclusion, which is central to the case study, is also relevant when thinking about the political consequences of these theories, and their support of a more inclusive realm that allows for political change. One of the advantages in combining their theories is to maintain this political potential: the claims to solve injustices, the process of democratic iterations, the importance of participatory parity, etc. The lack of a better understanding of how to articulate inclusion and public “justice claims”, which nowadays can be globally observed, calls for new ways of understanding political power and limitations. The new methods of protest employed by global social movements (e.g. the internet, etc.) will benefit from a more inclusive realm where their claims can be voiced, such as the one developed by Benhabib and Fraser. Essentially, these theories view the problem of how to go further as central, and as such try to provide a theoretical structure capable of solving the exclusionary practices of current democracies. By presenting Fraser and Benhabib’s models in a practical context, we have gained a new understanding of their potential as cornerstones in a new theory of transnational democratic justice. The further development of such a theory will provide a better understanding of a constantly globalizing world and help us right global injustices.

AUTHOR’S PROFILE Clara Iglesias Rodríguez holds MA in philosophy at Aarhus University. She has a Licentiate degree from the Complutense University of Madrid and has also studied one year at the Free University of Berlin.

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REFERENCES Abellán, L & Ramos, T 2014, ‘Brussels accuses Spain of violating EU border laws in Ceuta and Melilla’, El Pais 31 October. Available from <http://elpais.com/elpais/2014/10/31/inenglish/ 1414750844_552185.html>. Associated Press in Madrid 2014, ‘Spain approves law to expel north African migrants and fine protesters’ The Guardian 11 December. Available at http://www.theguardian.com/ world/2014/dec/11 /spain-law-expel-north-african-migrants-protests. Benhabib, S 2013, ‘Transnational legal sites and democracy-building: Reconfiguring political geographies’, Philosophy & Social Criticism, vol. 39, no. 4-5, pp. 471-486. doi:10.1177/019 1453713477351.2004. Benhabib, S et al. 2006, Another Cosmopolitanism: Hospitality, Sovereignty, and Democratic Iterations. Berkeley Tanner Lectures. New York: Oxford University Press. Blasco de Avellaneda, J 2013, ‘España acepta finalmente una patera que había rechazado’ Eldiario. Available at http://www.eldiario.es/desalambre/inmigracion/Espana-acepta -finalmente-patera-rechazado _0_194930802.html. Burridge, T 2014, ‘Spain Melilla migrants: On a hill, in sight of Europe’, The BBC News 16 April. Available at http://www.bbc.com/news/world-europe-26850196. Burridge, T 2014b, ‘Hundreds breach Spain enclave border’, The BBC News 28 May. Available at http://www.bbc.com/news/world-africa-27601215. Crespo, M 2013, ‘Inside Spain´s immigration detention centers’, Equal Times 16 December. Available at http://www.equaltimes.org/inside-spain-s-immigration?lang=es#.VWNU7E8PGc. Cué, CE 2014, ‘Immigration law change in works: interior minister’, El Pais 19 February. Available at http://elpais.com/elpais/2014/02/18/inenglish/1392753587_615740.html. Doncel, L 2014, ‘Brussels: Spain must explain use of rubber bullets in migrant tragedy’, El Pais 14 February. Available at http://elpais.com/elpais/2014/02/14/inenglish/1392410803_256988. html. Durán, R 2013, ‘Framing discourses during the Lampedusa crisis. Victims and intruders in the Spanish press coverage’, Paper presented at the International Conference of Political Communication, International Political Science Association (IPSA), Granda, Spain, 12-13 September. Fraser, N 2008, Scales of Justice: Reimagining Political Space in a Globalizing World, New York: Columbia University Press. Fraser, N 2005, Reframing justice in a Globalizing world. New Left Review vol. 36, November-December, pp.69-88. Fraser, N 2008a, ‘Abnormal Justice’, Critical Inquiry, vol. 34, no.3, pp.393-422. Fraser, N 2010a, ‘Injustice at Intersecting Scales: On ‘Social Exclusion’ and the ‘Global Poor’’ European Journal of Social Theory, vol. 13, no.3, pp. 363-371. Available at http://est.sagepub. com/content/13/3/363.abstract.

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Fraser, N 2010b, ‘Who Counts? Dilemmas of Justice in a Postwestphalian World’, Antipode vol. 41, pp.281-297. Available at http://onlinelibrary.wiley.com/doi/10.1111/j.14678330.2009.00726.x/abstract. Kassam, A 2014, ‘Spain to raise security around Morocco territories over immigration fears’, The Guardian 6 March. Available at http://www.theguardian.com/world/2014/mar/06 /spainsecurity-morocco-territories-immigration. Moh, C 2013, ‘Spanish border fence stormed by African immigrants’, The BBC News 18 September. Available at http://www.bbc.com/news/world-europe-24139601. Touré, K 2006, (DVD) Victimes de Nos Richesses, Bandung Productions, France.

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WHO IS RESPONSIBLE FOR ASYLUM SEEKERS IN OFFSHORE DETENTION? THE DEATH OF REZA BARATI AND RESPONSIBILITY UNDER INTERNATIONAL HUMAN RIGHTS LAW Nikolas Feith Tan

ABSTRACT On the night of 17 February 2014, Iranian asylum seeker Reza Barati was killed in an offshore Australian detention centre in the nearby country of Papua New Guinea (PNG). Mr Barati had been transferred and detained there under a bilateral agreement with Australia to process and resettle asylum seekers. Taking this case as its starting point, this article asks who bears responsibility under international law for human rights violations in offshore detention. In complex scenarios with multiple States, the attribution of responsibility to one actor is often problematic and not necessarily desirable. The death of Mr Barati took place in the context of Australia’s Operation Sovereign Borders policy, which aims to prevent boats arriving and ensure no asylum seeker arriving by sea – irrespective of their need for protection – is resettled in Australia. While this article focuses on joint actions between Australia and PNG, recent proposed deals between European and North African States on migration control are relevant. The article offers two possible avenues to hold States responsible for their offshore actions. Firstly, the extraterritorial application of human rights treaties may hold Australia responsible for exercising effective control over the detention centre. Secondly, the general international law doctrine of State responsibility may hold Australia responsible for complicity in Mr Barati’s death.

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1. INTRODUCTION On the night of 17 February 2014, Iranian asylum seeker Reza Barati was attacked and killed by staff while in a closed immigration detention centre during a riot on Manus Island in northern Papua New Guinea (PNG). Mr Barati had been transferred to PNG under a bilateral agreement with Australia to process and resettle asylum seekers (RRA).1 Mr Barati was detained in PNG pursuant to Australia’s Operation Sovereign Borders policy, which aims to prevent boats arriving and ensure no asylum seeker arriving by sea – irrespective of their need for protection – is resettled in Australia. Australia carries out this aim in three ways: turning back boats; processing asylum seekers offshore; and permanently resettling refugees in a third country (McAdam 2013). While this article focuses on joint actions between Australia and PNG, migration control deals between Italy and Libya and between Spain and various African States on migration control are detailed in the literature (den Heijer 2012). In response to a mounting death toll on the Mediterranean, the European Union recently reconsidered the introduction of offshore processing camps, with Australia’s then prime minister advising the European Union that ‘only way you can stop the deaths is in fact to stop the boats’ (Davies & Orchard 2015; Rabinovitch 2015). The present case speaks to a broader trend among developed States, namely, cooperation with developing States to prevent access to asylum (Gammeltoft-Hansen & Hathaway 2014). Cooperation is carried out on the territory of third States in an effort to avoid the reach of refugee and human rights law. This phenomenon has been characterised as ‘cooperative deterrence’ (Gammeltoft-Hansen & Hathaway 2014:235), that is, actions undertaken in cooperation with neighbouring developing States in the area of migration control to prevent access to asylum in the jurisdiction of the developed State. Such international agreements often involve bilateral or multilateral cooperation between both States and non-State actors. The detention centre in PNG was run by private company G4S at the time of Mr Barati’s death. This article confines itself to an analysis of potential State responsibility in the case, while noting

1   Papua New Guinea (PNG) is a developing Pacific State that became independent from Australia in 1975. PNG is a signatory to a number of the core human rights treaties, namely the Convention Relating to the Status of Refugees, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. 2016 THE UNIVERSAL

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that non-State actors may also share responsibility for internationally wrongful acts. Against this backdrop, an analysis of state responsibility is apposite. State responsibility is a distinct concept in international law, referring to rules governing the accountability of states for breaches of their international obligations (ILC 2001; Gleeson 2015). In situations of extraterritorial migration control, it is important to clarify where state responsibility lies to ensure accountability for human rights law violations. This article explores state responsibility through the lens of the Reza Barati case. The article analyses two possible legal solutions to this question: the extraterritorial application of international human rights law; and shared responsibility under the general international law doctrine of State responsibility (Crawford 2013). This article proceeds in three sections: firstly outlining the historical development of Australianled cooperation on migration control; secondly providing an account of the events on Manus Island leading to Mr Barati’s killing; and finally analysing Australia and PNG’s responsibility for Mr Barati’s death under human rights law and the law of State responsibility.

2. HISTORICAL CONTEXT: AUSTRALIA-LED COOPERATION ON MIGRATION CONTROL

2.1 THE PACIFIC SOLUTION To understand the circumstances surrounding Mr Barati’s death and Australia– PNG cooperation in this area, it is important to understand the evolution of Australia’s extraterritorial approach to asylum policy. Such context is important to grasp Australia’s insistence on international cooperation in this area, often in exchange for development assistance or refugee burden-sharing. It is beyond the scope of this article to analyse the reasons regional states agree to such cooperation, but it is clear that states such as Nauru and PNG are heavily reliant on Australian development assistance, while other states such as Malaysia host high numbers of refugees and seek to share that burden. Cooperation between Australia and PNG in the area of migration control can be

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traced back to the Pacific Solution, established in 2001. In August of that year, the Norwegian freight ship MV Tampa rescued 438 asylum seekers on their way to seek asylum in Australia. The Australian government refused to allow the Tampa to dock, requesting it return the asylum seekers to Indonesia and sent armed Special Air Service troops to seize the ship and prevent it from approaching the Australian territory of Christmas Island (Schloenhardt 2002:59). Australia began to reach out to neighbours to take on responsibility for detaining and processing the asylum seekers on board the Tampa, with around 300 people redirected to the tiny island nation of Nauru (Magner 2004:82). The Australian government entered into arrangements with Nauru and PNG that ensured asylum seekers bound for Australia were diverted to these developing States for detention and processing. The Pacific Solution was born.

This radical policy change shifted migration control from the Australian mainland into the territory of these States willing to make available their territory for a certain purpose (Gammeltoft-Hansen, 2011:33). Around 1700 asylum seekers were processed under the Pacific Solution at a cost of nearly $AUS 1 billion to Australian taxpayers, around half a million dollars per person (Bem et al 2007:3). In exchange, Nauru, for example, received increased development assistance (Magner 2004). The modest flow of asylum seekers by boat to Australia dropped markedly, from 4137 in 2000-01 and 3649 in 2001-02 to just 210 over the following five years to 200607. (Bem et al 2007:13). The Pacific Solution continued until 2008 when the newly elected Labor government dismantled the policy by closing the offshore camps and resuming onshore processing of refugee protection claims.

2.2 FAILED MALAYSIA AND EAST TIMOR SOLUTIONS In July 2010, the same government that ended the Pacific Solution attempted to establish an offshore processing arrangement with the fledgling nation of East Timor. The government flagged the possibility of a â&#x20AC;&#x2DC;refugee processing centreâ&#x20AC;&#x2122; to be paid for entirely by Australia on East Timorese territory (Taylor 2011). However, the proposal never got off the ground, with East Timorese officials quickly distancing their country from the idea. Unlike Nauru and PNG, East Timor refused to cooperate with Austra2016 THE UNIVERSAL

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lia on migration control. A year later, the Australian government entered into a non-binding agreement with another regional neighbour, Malaysia, to swap 800 asylum seekers in exchange for resettling 4000 recognised refugees from that country. Malaysia is host to significant numbers of Burmese refugees, with almost 100,000 refugees present in the country under the protection of the United Nations High Commission for Refugees (UNHCR 2015). Malaysia has not signed the 1951 Convention Relating to the Status of Refugees (Refugee Convention) or other key international human rights instruments such as the International Covenant on Civil and Political Rights (ICCPR) or Convention against Torture (CAT). In addition to the absence of an international human rights law or refugee law framework in Malaysia, there is no domestic legislation to regulate the status and rights of refugees. In the words of UNHCR, ‘this absence of a legal framework leaves refugees vulnerable to abuse of their human rights.’ (UNHCR Global Appeal 2014). The ‘Malaysia Solution’ was rejected by Australia’s High Court in Plaintiff M70/2011 v. Minister for Immigration and Citizenship; and Plaintiff M106 of 2011 v. Minister for Immigration and Citizenship, [2011] HCA 32, a case brought by a group of asylum seekers slated for transfer (Foster 2012, p. 407). The Court found that there were inadequate legal guarantees that refugees would receive protection in Malaysia required by the Australian Migration Act of 1958.

2.3 OPERATION SOVEREIGN BORDERS On 16 August 2012, Australia reinstituted a strengthened version of Pacific Solution, passing legislation that allows asylum seekers arriving by boat to be transferred to ‘regional processing countries’ while their refugee status is determined (Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012). Under a bilateral memorandum of understanding, transfer of asylum seekers to PNG began in November 2012 (PNG MOU). On 19 July 2013, Australia and PNG signed a Regional Resettlement Agreement (RRA; Karlsen & Phillips 2014). Going beyond the earlier version of the Pacific Solution, the Agreement provides for both the assessment of asylum claims and permanent resettlement of refugees in PNG (Clauses 3-5; Glazebrook 2014, p. 1). The Agreement is financed entirely by Australia, including funding for the PNG 94 | T H E U N I V E R S A L 2 0 1 6


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police force ‘for their operations relating to’ the Manus Island Centre (Clause 6). Australia also funds and coordinates provision of services from non-State actor contractors. At the time, this included: security, maintenance and operation services provided by G4S; welfare services provided by The Salvation Army; and healthcare provided by International Health and Medical Services (IHMS) (Legal andConstitutional Affairs References Committee 2014 paras 2.09-2.14). By late 2013, despite 1100 asylum seekers being transferred to Manus Island, no refugee status determinations had been made (Legal and Constitutional Affairs References Committee 2014 para 4.53) Tensions were high among the all-male asylum seekers and extended to relations between asylum seekers and PNG staff (Legal and Constitutional Affairs References Committee 2014 paras 3.11; 3.21; 3.26; 3.47–3.53) One of these asylum seekers was Reza Barati, a young Iranian man who had taken a boat from Indonesia to Australia in July 2013, been intercepted, and then transferred to the Manus Island Centre.

3. THE EVENTS OF 16-18 FEBRUARY 2014 In the last weeks of 2013, hopes of asylum seekers detained at the Manus Island Centre were high as rumours of an amnesty from Australia circled. With such an amnesty not forthcoming, tension in the camp mounted in the opening weeks of 201 (Cornell 2014, p. 32). By 15 February 2014, 1340 asylum seekers were detained at the Manus Island Centre (Cornell 2014, p. 56). Asylum seekers were informed that the processing of refugee claims would take up to four years (Legal and Constitutional Affairs References Committee 2014 para 5.2). That evening, violent protests protesting broke out in three of the four Centre compounds (Oscar, Foxtrot and Mike), in which 25 asylum seekers and staff were injured (Cornell 2014, p. 39). By the morning of Monday 17 February, however, the Centre was ‘quiet and calm’ (Cornell 2014, p. 39). Notwithstanding, local G4S and The Salvation Army staff were prevented from accessing the compounds that day due to suspicion of renewed protests. G4S staff removed rocks and other projectiles in the compounds. Tensions began to rise again around 1.45pm when Salvation Army staff ‘were received in a hostile manner’ in Mike compound. By 4.45pm, protesting had spread to Oscar compound and some asylum seekers not wishing to protest were transferred to Bravo compound 2016 THE UNIVERSAL

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(Cornell 2014, p. 49-50; Legal and Constitutional Affairs References Committee 2014 para 5.38). By 9.30pm tensions had increased with widespread protesting in Mike and Foxtrot compounds. Shortly after, the PNG mobile police squad with dogs walked the area between two compounds as a ‘show of force’ to stop the protests (Legal and Constitutional Affairs References Committee 2014 para 5.42). By 10pm, however, asylum seekers had broken through the fence between Oscar and Foxtrot compounds and, by 10.18pm, had control of Mike compound. The situation was out of control.2 At around 11.20pm, the PNG mobile police squad entered Mike compound with a number of civilians. Bullets were fired. During the violence in Mike compound, Reza Barati was killed following a ‘catastrophic cranial injury’ sustained around 11:26pm. Mr Barati was attacked by a number of people and witnesses describe him being kicked and punched before a PNG man ‘put a very big stone on his head’. Mr Barati died from cardiac arrest in an ambulance en route to hospital. (Cornell 2014, p. 57-67). In the violence of 16-18 February, 69 injuries were sustained by asylum seekers. Beyond the death of Mr Barati, one asylum seeker lost his right eye, another was shot in the buttocks and a third had his throat cut (Cornell 2014, p. 62). In August 2014, two Papuan New Guinean men were arrested for the murder Mr Barati, one a former Salvation Army employee and another a G4S employee. At the time of writing, the trial was ongoing. As at December 2015, 926 asylum seekers remained in the Manus Island Centre (Department of Immigration and Border Protection 2015, p. 4). Since the return to offshore detention in PNG in November 2012, 87 people have been found to be refugees. They live outside the detention centre but are unable to leave the island (Human Rights Watch 2015).

2   A G4S staff member reported: ‘There was a hail of missiles of all sorts, from metal

poles, pieces of glass and rocks that were the size of my fist and greater. I remember at one stage looking into the night sky and seeing the sky completely filled with missiles.’ (Legal and Constitutional Affairs References Committee 2014 para 5.43). 96 | T H E U N I V E R S A L 2 0 1 6


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4. RESPONSIBILITY FOR MR BARATI’S DEATH UNDER INTERNATIONAL LAW

4.1 PNG AND AUSTRALIA’S OBLIGATIONS UNDER HUMAN RIGHTS LAW While the bilateral cooperation arrangements between Australia and PNG undoubtedly give rise to a raft of human rights and refugee law issues, including violation of the rights to liberty and security, freedom from torture, and right to health. However, this article confines itself to an analysis of state responsibility for the death of Mr Barati. The following section discusses both States’ obligations under human rights law. The case triggers obligations under the Article 6 of the ICCPR, to which both States are party (Castan Centre for Human Rights Law 2014, p. 5).3 Article 6(1) of the ICCPR provides: ‘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.’ The UN Human Rights Committee has stated that the right to life is ‘the supreme right’, absolute in nature (HRC 1982: para 1). Article 2(1) further provides that the ICCPR applies in relation to both citizens and non-citizens, requiring Australia and PNG to ‘respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant’. The Human Rights Committee has further stated that: “The enjoyment of Covenant rights is not limited to citizens of State Parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party.” (HRC 2004 para 10). The right to life under Article 6 is not merely a negative right, but requires the State to ‘adopt positive measures’ to preserve the right (HRC 1982: para 5). These measures include: preventing and punishing deprivation of life by criminal acts; taking appropriate steps to safeguard the lives of those within jurisdiction; and establishing 3   The case may also engage Australia’s non-refoulement obligations under Article 33(1) of the Refugee Convention, Articles 2 and 7 of the ICCPR, Article 3 of the CAT, and customary international law. 2016 THE UNIVERSAL

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effective procedures for investigating deprivations of life by the State (Kalder Centre 2014, p. 7). In relation to PNG, the death of Mr Barati may amount to a violation of Article 6(1) as the incident occurred on national territory under jurisdiction of PNG’s government. The Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, noted that ‘both States remain responsible for protecting the human rights — including the right to life — of the asylum seekers in the camp’ (Human Rights Council 2015 para 48). Australia’s responsibility under international human rights law for the death of Mr Barati is not so straightforward. To engage Australia’s human rights law obligations, it must be established that Mr Barati was subject to Australian jurisdiction at the time. The test for extraterritorial jurisdiction is that of ‘effective control’, that is, whether Australia exercises effective control over the territory, situation or persons at the Manus Island Centre at the time of Mr Barati’s death (HRC 2004 para 16; Legal and Constitutional Affairs References Committee 2014 para 7.26). While Australia acknowledges the extraterritorial effect of the ICCPR (Parliamentary Joint Committee on Human Rights 2014 para 2.16), the government maintains that it does not exercise effective control over operations at offshore detention centres: “The consistent position taken by Australia is that while we are assisting PNG and Nauru in the management of the centres, this assistance does not constitute the level of control required under international law to engage Australia’s international human rights obligations extraterritorially in relation to the persons concerned.” (Legal and Constitutional Affairs References Committee 2014 para 7.29) However, this position is contested. The United Nations High Commission for Refugees has argued that: “In determining whether a State’s human rights obligations with respect to a particular person are engaged, the decisive criterion is not whether that person in on the State’s national territory, or within a territory which is de jure under the sovereign control of the State, but rather whether or not he or she is subject to that State’s effective authority and control.” (UNHCR 2007 para 35) In relation to the Manus Island bilateral arrangement, UNHCR has further stated:

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“As a matter of international law, the physical transfer of asylum-seekers from Australia to PNG, as an arrangement agreed by the two1951 Convention States, does not extinguish Australia’s legal responsibility for the protection of asylum-seekers affected by the transfer arrangements.” (UNHCR 2014, p. 1) Whether a State exercises a sufficient level of control to incur legal responsibility depends on the facts. In the well-known European Court of Human Rights case of Al-Skeini v United Kingdom (App No 55721/07, European Court of Human Rights, Grand Chamber, 7 July 2011), the Strasbourg court held that the European Convention on Human Rights (ECtHR) applies extraterritorially where a State ‘through its agents, exercises control and authority over an individual’ (para 137). This principle was echoed in the case of Hirsi Jamaa v Italy (App No 27765/09, European Court of Human Rights, Grand Chamber, 23 February 2012), in which Italian authorities pushed back Somali and Eritrean nationals to Tripoli under a bilateral arrangement between Italy and Libya. In Hirsi, the ECtHR further stated that actions taken under an existing bilateral agreement do not extinguish international obligations: “Italy cannot evade its own responsibility by relying on its obligations arising out of bilateral agreements with Libya. Even if it were to be assumed that those agreements made express provision for the return to Libya of migrants intercepted on the high seas, the Contracting States’ responsibility continues even after their having entered into treaty commitments subsequent to the entry into force of the Convention or its Protocols.” (para 129) The ECHR does not bind Australia but is nevertheless an influential guide to the state of international human rights law. While the Manus Island Centre is not on Australian territory, the State exercises a significant level of control over staffing, funding, and operations at the Centre (Legal and Constitutional Affairs References Committee 2014 para 7.31; Castan Centre 2014, p. 3). Australia selects who is to be transferred to the Centre and acknowledges that asylum seekers are under its jurisdiction prior to being transferred. Perhaps more fundamentally, the very existence of the Centre and arrangements surrounding it is dependent on Australia.(Legal and Constitutional Affairs References Committee 2014 para 7.32). In relation to Mr Barati, his presence on Manus Island was due to Australia’s actions; his detention was funded by Australia; and his alleged attackers were employees of contractors engaged by the Australian government (G4S and The Salvation Army).

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On this basis, international jurisprudence and a range of international human rights organisations and academics4 support a finding of Australian effective control over the Manus Island Centre at the time of Mr Barati’s death. An Australian Senate inquiry into the case found: “(...) the degree of involvement by the Australian Government in the establishment, use, operation, and provision of total funding for the centre clearly satisfies the test of effective control in international law, and the government’s ongoing refusal to concede this point displays a denial of Australia’s international obligations.” (Legal and Constitutional Affairs References Committee para 8.33) There is thus a strong likelihood that Australian influence over the Manus Island Centre amounts to the degree of ‘effective control’ required to trigger right to life obligations under Article 6(1) of the ICCPR.

4.2 SHARED RESPONSIBILITY This article now turns to consider whether Australia and PNG may be held jointly responsible for Mr Barati’s death. Irrespective of whether Australian involvement in the death of Reza Barati amounts to ‘effective control’, international law provides for shared responsibility between States. The doctrine of State responsibility provides for shared responsibility under the International Legal Commission’s Articles on State Responsibility (ASR). The ASR provide the ‘modern framework of state responsibility’ and while they are not binding international law as a body, elements of the Articles codify existing customary law (Crawford 2013, p. 45; Nollkaemper & Plakokefalos 2014, p. 3; Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) International Court of Justice. 26 February 2007, para 173). The ASR lay down a set of secondary rules of international responsibility which do not define the content of ‘internationally wrongful acts’ but rather outline how State responsibility may be attributed for such acts.

4   ‘The evidence provided to the committee by experts in international human rights law in relation to this issue was unequivocal in stating that Australia was, at the time of the disturbances in February 2014, and still is, exercising effective control with respect to the Manus Island RPC and the individuals held there.’ (Legal and Constitutional Affairs References Committee para 8.33) 100 | T H E U N I V E R S A L 2 0 1 6


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Article 1 provides that every internationally wrongful act of a State entails its international responsibility. Commentaries to the Articles provide: ‘each State is responsible for its own internationally wrongful conduct…The principle that State responsibility is specific to the State concerned underlies the present articles as a whole.’ Responsibility therefore turns on whether the act can be attributed to the State in question; and whether the act was internationally wrongful at the time it was committed. In the present case, attribution of the conduct leading to Mr Barati’s death clearly lies with both the PNG and Australian governments, under the Regional Resettlement Agreement.5 Turning to the question of responsibility, a State may be held responsible for aiding and abetting, directing or controlling, or coercing another State under ILC Articles 16-18. The law of complicity is most relevant to the death of Mr Barati. Article 16 provides: “A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (A) that State does so with knowledge of the circumstances of the internationally wrongful act; and (B) the act would be internationally wrongful if committed by that State.” Article 16 contains three elements that determine the scope of responsibility of the assisting state: awareness of the circumstances of the act; knowledge of the act with a view to its commission; and that the act must be ‘wrongful had it been committed by the assisting State itself.’ (ILC Commentaries 2001, p. 66 para 3) Aid and assistance need not be ‘essential to the performance of the internationally wrongful act’, but it must contribute significantly to the act. The commentaries to the ILC Articles include ‘financing of the activity in question’ as an example of conduct meeting the requirements of Article 16. In the present case, Australia’s significant financial, managerial and operational influence over arrangements at the Manus Island Centre demonstrate a clear knowledge of the circumstances of Mr Barati’s death as required by Article 16(a). Additionally, the killing of an asylum seeker in the Australian detention network would clearly amount to an internationally wrongful act as required by Article 16(b). Commentar5   For detailed views on attribution, see Francesco Messineo, ‘Attribution of Conduct’, in Nollkaemper, André, and Ilias Plakokefalos, eds. Principles of Shared Responsibility in International Law: An Appraisal of the State of the Art. Vol. 1. Cambridge University Press, 2014, 60-97. 2016 THE UNIVERSAL

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ies to the ILC Articles cite ‘financing of the activity in question’ as an example of conduct meeting the requirements of Article 16 (ILC Commentaries 2001, p. 66 para 1). The law of shared responsibility is in a process of dynamic development. While the International Court of Justice has clarified that Article 16 ASR amounts to a binding international law norm, interpretation of the knowledge requirement on the part of assisting states has yet to receive significant judicial attention. Following a monitoring visit to Manus Island in October 2013, UNHCR stated that both Australia and PNG have: “(...) shared and joint responsibility to ensure that the treatment of all transferred asylum-seekers is fully compatible with their respective obligations under the 1951 Refugee Convention and other applicable international instruments. (UNHCR 2013 para 16) Australia’s own parliamentary committee on human rights acknowledged the likelihood of shared responsibility for internationally wrongful acts on Manus Island in 2014 (Parliamentary Joint Committee on Human Rights 2014 para 2.56). This article supports this view. Even if it cannot be established that Australia exerts a sufficient threshold of control to amount to ‘effective control’ over the Manus Island Centre, Australia remains jointly responsible for the death of Mr Barati under the doctrine of State responsibility. 5. CONCLUSIONS This article has explored the disturbing case of Reza Barati as lens on a far wider phenomenon: State cooperation to prevent access to asylum. The article first examined Australia’s history of cooperation on migration control since the Tampa incident; second provided an empirical account of the events leading up to Mr Barati’s death; and finally analysed Australia and PNG’s responsibility for his death under international law. Such complex cooperation arrangements, in this case including a non-State actor, muddy the waters of international legal responsibility. The Barati case can be seen as symptomatic of an arrangement designed to avoid and obfuscate responsibility. His death was a foreseeable consequence of Australia-PNG cooperation on migration control. Australia may exercise effective control over the Manus Island Centre where Mr 102 | T H E U N I V E R S A L 2 0 1 6


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Barati was killed amounting to human rights law jurisdiction. This article has further explored the possibility of holding both States responsible under the principles of State responsibility, whereby Australia may have been complicit in Mr Barati’s death. A finding that Australia is responsible for the death of Mr Barati and the lives of other asylum in offshore asylum processing arrangements in third countries matters. Whether on the basis of extraterritorial jurisdiction or complicity, such a finding demonstrates that extraterritorial migration control is not beyond the reach of international law and, in particular, human rights and refugee law. While enforcement of international law is often elusive, holding states responsible can play a role in preventing further deaths in offshore detention.

AUTHOR’S PROFILE Nikolas Feith Tan holds a Master of Law from University of Copenhagen and is a PhD fellow at Aarhus University and Danish Institute for Human Rights. His research focuses on the human rights of asylum seekers and refugees from an international law standpoint.

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Inquiry into the incident at the Manus Island Detention Centre from 16 February to 18 February 2014. UNHCR 2014, ‘Global Appeal 2014-2015 – Malaysia’ available http://www.unhcr.org/50a9f82da.pdf (accessed 19 November 2015). UNHCR 2015, UNHCR subregional operations profile - South-East Asia, available at http:// www.unhcr.org/pages/49e4884c6.html. (accessed 25 November 2015).

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CALL FOR PAPERS

CALL FOR PAPERS FOR THE UNIVERSAL ANNUAL HUMAN RIGHTS REVIEW The Universal – Annual Human Rights Review is looking for papers for its 2017 volume. The theme of the volume will be “Human Rights and Contemporary Europe”. Priority will be given to articles related to this theme. However, we will consider accepting good quality articles that do not directly address it. The Universal is a multidisciplinary journal and accepts papers from all academic disciplines that focus on human rights. Furthermore, The Universal tries to foster interdisciplinary debate and gives priority to articles with an interdisciplinary scope. The Universal primarily aims to publish research-based articles by students and recent graduates at BA, MA and PhD level. To be considered for publication, research-based papers need to be within the topic of human rights and comply with The Universal’s submission guidelines. Papers that are initially approved will go through a double-blind peer review by two reviewers, after which the editors will select the papers to be included in the volume. Authors are expected to edit their articles in accordance with the advice from the two peer reviewers before publication. It is also possible to contribute with smaller pieces such as literary reviews, responses to articles, book reviews, opinion pieces and field notes. These do not need to comply with the submission guidelines. For more information, contact the editorial team info@thinkrights.dk. All contributions must be original, not previously or simultaneously published elsewhere. Papers should be submitted by May 20th 2016, after which authors will receive notification of acceptance during the autumn of 2016. Publication is scheduled for February 2017. The Universal is non-profit and is available for free at thinkrights.dk. Papers will also be indexed at major academic databases. To submit a paper, please send an email to universal@thinkrights.dk. There is no fee for submission nor publication.

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The Universal - Vol. 1 2016  

The Universal is an annual human rights journal with an interdisciplinary scope publishing research by students (BA, MA and Ph.D.) and recen...

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