Limitations of a ‘purist’ approach to human rights

Ute Seela and Remko Berkhout

Rebecca Adamson’s critique in the June issue of Alliance of the traditional philanthropic paradigm (‘one gives, the other receives’) and the concomitant lack of agency on the part of the recipient may be relevant beyond the field of support to indigenous peoples. Cultural values and traditional mechanisms for decision-making play a role in matters of conflict and justice in many local communities, whether indigenous or not. Yet as donors, especially when following a human rights approach, we tend to support strategies that focus on claiming legal rights at the level of the nation state, often overlooking the fact that statutory law and traditional practice coexist. More culturally sensitive practices could render rights-based approaches more powerful and offer new opportunities for effective funding practices.

Remko BerkhoutHuman rights advocacy – and by extension human rights funding, too – has delivered significant results over the past decades. From the Universal Declaration of Human Rights and international covenants on various basic rights to the emergence of national and international enforcement mechanisms, the legal landscape has changed greatly. Data from global rights watchdogs such as Freedom House also suggests that the gains on the ground have been significant. At the same time, human rights violations persist, even in countries with progressive rights frameworks. We argue that this mixed record indicates serious limitations to a ‘purist’ human rights approach among funders. In other words, focusing on the state as the prime target of human rights advocacy may overlook the potential of ´culture´ as a complementary source of inspiration for civic action.

This matter could be discussed from a theoretical point of view by referring to the immense debate on cultural relativism – the argument that human rights may not be universal and that culture and tradition determine how communities perceive rights and obligations. However, we prefer a more pragmatic approach: what if those local communities that we wish to support relate strongly to their local, ethnic or religious identity rather than the abstract legal rights which a distant state is meant to guarantee? How would one explain that distance from the state? And what should we learn from this? These are the kind of questions we explore in the Hivos knowledge programme. Work in progress suggests the following.

The gap between theory and practice

Although states have a responsibility to comply with the obligations of international law, including equal human rights for all, the extent to which they do so may be very different. First, while a state may fully subscribe to ‘the rule of law’ in official statements, it may not do so in actual practice. Public debate about communal violence and secularism in India, for instance, regularly shows the indecisive response of the Indian state, which is said to act in favour of the Hindu majority. Although the Indian constitution has a very comprehensive minority rights protection framework, in the process of religious polarization since the 1990s and the rise of right-wing Hindu parties, parliament and government have become vulnerable to identity politics, favouring mostly Hindutva interests. More generally, one could say that when faced with competing rights claims, law making and implementation tend to be subjected to identity politics, negotiation of interests and political priority.

Second, getting a state to act through confrontational or cooperative means can be a lengthy, costly and complex process beyond the means, capacity and connections of most rights holders. Recent studies (for instance by Atlantic Philanthropies) illustrate that this can lead to uncivil strategies such as violent community protest with outbursts of xenophobia and the destruction of public infrastructure.  

Third, numerous examples illustrate that rights may be violated in practice while nothing is wrong with the law. In South Africa, for example, widespread sexual violence and discrimination against LGBT groups persist despite progressive legislation. Community norms, values and practices can operate on a fundamentally different logic from universal human rights.

A critical blind spot

These three sets of limitations point at a critical blind spot in the theory of change underpinning the human rights approach. A crucial element here may be the insistence of the human rights approach on a western moral framework which tends to view culture and tradition as backward phenomena, invariably opposed to the notion of rights as modernity. A ‘purist’ rights-based approach tends to see all socio-cultural reform in terms of legal reform. This reductionism creates a certain tunnel vision about the possible solutions for addressing injustices. It may also partly explain the NGO fatigue in certain countries, which Andrew Firmin notes in the September issue of Alliance. Civil society organizations that are perceived to follow a logic that is donor-driven and urban-biased are losing credibility in their own societies and increasingly judged to be ineffective.

A recent report by the Cross-Cultural Foundation of Uganda[1] analyses various cases where traditional systems of governance and ‘modern’ state law have come to be juxtaposed. One of the recurring issues is land ownership. The traditional system of land tenure still prevails in most of the country. Land is owned by families and passed on from generation to generation without official administration or regulation. The system used to protect women. For example, upon the death of her husband, the widow would take over the management of the family land. Recently, however, the idea of private ownership by an individual and official registration has taken root. The CCFU study provides examples of male relatives grabbing and registering the land of divorced or widowed women, claiming that women don’t own land. In these cases the modern idea of individual rights and regulation has resulted in a loss of rights and dignity for women. The study also provides examples of how customary land tenure can be strengthened by documenting the rights and responsibilities within this traditional system. Rights and culture can merge, the study shows.

What can we conclude from this? We believe that going beyond a purist rights-based approach and bringing culture back into the framing of strategies offers alternative avenues for civic action, with important implications for funders too. We agree with Jo Andrews’ assertion (March issue of Alliance) that human rights funders and social justice funders work from different roots: individual rights versus the health of communities. Our argument suggests that rather than nailing down the differences in perspective, these ‘cousins’ should engage with each other and consider a broader palette of support strategies allowing mixes of traditional and modern mechanisms for human rights and social justice.

After all, paraphrasing Amartya Sen: if we acknowledge that there are competing principles of justice, isn’t it better to engage with those differing perspectives rather than ‘building castles in the sky’?

1 CCFU Culture in Governance. Does it work?  http://www.crossculturalfoundation.or.ug/downloads/culture_in_governance_report.pdf

Ute Seela
and Remko Berkhout work as knowledge officers at development organization Hivos. Emails u.seela@hivos.nl and r.berkhout@hivos.nl

For more information

http://www.hivos.net


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