Human Rights and Legal Systems Across the Global South, Symposium, Indiana University Maurer School of Law, Bloomington, Indiana. 9-10 April 2010

Greene, Shane

Ochoa, Christiana

English

Indiana University Bloomington Maurer School of Law

Indiana Journal of Global LegalStudiesVolume 18 | Issue 1 Article 1Winter 2011Introduction: Human Rights and Legal SystemsAcross the Global South SymposiumChristiana OchoaIndiana University Maurer School of Law, cochoa@indiana.eduShane GreeneIndiana University, lsgreene@indiana.eduFollow this and additional works at: http://www.repository.law.indiana.edu/ijglsPart of the Human Rights Law Commons, and the International Law CommonsThis Symposium is brought to you for free and open access by the LawSchool Journals at Digital Repository @ Maurer Law. It has been acceptedfor inclusion in Indiana Journal of Global Legal Studies by an authorizedadministrator of Digital Repository @ Maurer Law. For more information,please contact wattn@indiana.edu.Recommended CitationOchoa, Christiana and Greene, Shane (2011) "Introduction: Human Rights and Legal Systems Across the Global South Symposium,"Indiana Journal of Global Legal Studies: Vol. 18: Iss. 1, Article 1.Available at: http://www.repository.law.indiana.edu/ijgls/vol18/iss1/1IntroductionHuman Rights and Legal Systems Across theGlobal SouthCHRISTIANA OCHOA* & SHANE GREENE**The "Global South" is the imagined and real geographic space fromwhich the contributions to this issue of the Indiana Journal of GlobalLegal Studies draw their inspiration and information. The Global Southincludes nations in Africa, Central and Latin America, and most of Asia,comprising more than 150 of the world's 184 recognized countries.' Thisfact alone would suggest that there should be almost no conference,symposium, or conversation about world affairs that is not dominatedby considerations of the Global South. However, this is not the case. TheGlobal South, even in a restrictive geographic sense, remains in thebulk of these discussions as peripheral rather than central, and reactiverather than protagonistic. By some accounts, the Global South is thesuccessor to the Third World. However, the Third World may have beenmore appropriately geographically confined to countries south of theequator than the imaginary, nominally geographic Global South seemsto be. Rather than actually being confined to the countries south of theequator, the concept of the Global South has emerged from thecontemporary iteration of economic globalization and its effects onsubaltern communities, wherever they may be located. These effectsbespeak disaffected communities, as they are carted forth, robed in amultitude of undesirable characteristics: "political, social, and economicupheaval . . . poverty, displacement and diaspora, environmental* Professor of Law and Charles L. Whistler Faculty Fellow, Indiana UniversityMaurer School of Law.** Professor of Anthropology, Indiana University.1. Global South - Center for the Global South, AM. U. CTR. GLOBAL S.,http://wwwl.american.edulacademic.depts/acainst/cgs/about.htm (last visited Mar. 12,2011).Indiana Journal of Global Legal Studies Vol. 18 #1 (Winter 2011)@ Indiana University Maurer School of Law1INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 18:1degradation, human and civil rights abuses, war, hunger and disease."2Notably each of these characteristics can be eroded through morecareful investigation, revealing that this manner of thinking about theGlobal South is itself polemical and overly simple.The organizers of this symposium agree that imagery of, anddiscourse about, the Global South demand nuance and context,especially with regard to the substantive questions addressed by thissymposium. The contributors to this issue largely echo this orientation.Perhaps this should not be surprising, given that the substantivequestions this issue addresses are fundamentally about the activeengagement of communities in the Global South with a range of legaland quasi-legal mechanisms that may serve them in clarifying status,advancing claims, or seeking redress for harms. The contents of thisissue are thus much less about victimhood than they are about agencyand power-about the routes for exit and the tools for voice.As a general matter, this symposium is about the engagement of theGlobal South with legal mechanisms at all scales with a special focus onAfrica and Latin America, and on human rights as the concept isshaped, adapted, rejected, or contested in various locations. Socialgroups commonly operate within multiple legal systems that generallyinclude an official state system of law and other systems based onindigenous legal practices, customary law, and nonsecular law. Scholarshave used the term "legal pluralism" to analyze these complex legalsituations, but their work has only begun to analyze how human rightsdiscourse is articulated within these various legal systems. Among thechallenges of this work is the conjunction of human rights withindigenous rights and women's rights, all currently forceful movementsacross the Global South and on the international plane.New waves of legal discourse are moving across the Global South,often employing the rhetoric of human rights and engaging withrelatively novel domestic, regional, and international institutionscreated for the purpose of advancing the law of human rights. Thespread of human rights may easily be characterized as part of thepackage of globalization, but the contents of this issue demonstrate thatthis view reflects incomplete and sometimes inaccurate thinking aboutcommunities in the Global South in relation to legal systems andhuman rights. Whether as part of a hegemonic or counterhegemonicproject, the authors observe that each location they address serves as aspace for the appropriation of selected elements of the global-homogenous version of human rights and the production of original,2. Alfred J. L6pez, Preface and Acknowledgments, GLOBAL S., no. 1, 2007 at v,available at http://muse.jhu.edu/journals/the-global-south/toc/gbs.1.1-2.html.2INTRODUCTIONoften unique hybrids that are shaped by local histories, socialstructures, and power relations within particular societies and amongdifferent social groups. This symposium contributes to and advances theexisting literatures in law and the social sciences that recognize thesignificance of identity politics, civil society, religion, local culturalpractices, and emancipatory struggles. The group of scholars in thisissue comes from a variety of disciplines with in-depth experience inspecific locations in Africa and Latin America, and together they explorethe alchemy of particular legal systems and the discourse of humanrights.With this orientation and set of questions in mind, the IndianaUniversity Maurer School of Law, the Center for Latin American andCaribbean Studies, and the African Studies Program joined to host asymposium on April 9-10, 2010. The intellectual products of that richmeeting are contained in this issue.The first section of this issue is devoted to problems of the universaland the particular. The articles in this section suggest a way of thinkingabout communities in the Global South. These communities are oftenenvisaged as disparate, isolated, and distant. The articles presentedhere, however, contest this vision and instead present communities asinterconnected with each other, with the North, and with a history thatmakes any claims of particularity or universality simultaneously true aswell as highly suspect. Kamari Clarke discusses international criminalcourts, particularly the Special Court for Sierra Leone and its capacityto focus the public's attention on the "African warlord" in order toconstruct victimhood vis-A-vis particular acts of acute violence, insteadof vis-A-vis a larger system of fundamental, systemic, and globalinequalities that give rise to war in the first place.3 Siba Grovogui'sarticle similarly questions the use of human rights as a tool merely forupholding the rule of law or imposing responsibility on identifiableperpetrators of violence.4 Through a historical analysis of what humanrights meant to Haitian slaves in the eighteenth century, Grovoguiargues that human rights should be conceived of as a tool to protectcommunities against the political, economic, and social harms embeddedin liberal constitutional and modern colonial orders.The issue then turns to "claims in context." This section includescontributions discussing women's rights from a variety of perspectivesand in a number of locations. Susan Williams' article sets the stage by3. Kamari Maxine Clarke, The Rule of Law Through Its Economies of Appearances:The Making of the African Warlord, 18 IND. J. GLOBAL LEGAL STUD. 7 (2011).4. Siba N. Grovogui, To the Orphaned, Dispossessed, and Illegitimate Children:Human Rights Beyond Republican Liberal Traditions, 18 IND. J. GLOBAL LEGAL STUD. 41(2011).3INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 18:1referring to an ongoing, seemingly insoluble conflict in some locationsbetween protecting and preserving cultural traditions, on the one hand,and promoting women's equality, on the other.5 Williams' articlepresents a solution: "a constructivist view of culture and a dialogicmodel focused on the need for challenge as part of the dialogue," whichwould open space for women to participate in the shaping of customarylaw in their own communities.6 Very much in dialogue with Williams,Muna Ndulo examines the roles courts play in advancing women'srights in Africa and the importance of recognizing that "traditionalsocial and economic relations on which the customary norms thatdiscriminate against women are founded, and on which traditionalistsrely .. . have in reality been radically transformed" in such a way as toweaken them in the face of women's legal claims.7From across the Atlantic, Paula Spieler provides a narrative accountof a women's rights claim that pitted Brazilian culture and traditionagainst women's rights in exactly the ways Williams and Ndulodiscuss.8 In addition, her article describes an instance in which womenwere able to exit the domestic legal system in order to make claimsbefore the Inter-American Human Rights System. This multiscalarimpact litigation resulted in greatly enhanced human rights protectionsfor women in Brazil. Finally, in order to provide some large-scaleobservations, Mala Htun and Laurel Weldon's article investigates thevariation in family and women's rights protections around the world.9 Itoffers tentative answers to a number of questions: "What accounts forthese divergent approaches to family law? Why are laws of personalstatus so seemingly resistant to change in some places? How can weexplain both this resistance and the overall trend toward sexequality?"' 0The subsequent set of articles demonstrates the conceptual rubric oflaw as a tool in struggles for identity amidst the collective. The articlesin this section illustrate the empowering capacity of human rightsdiscourse and law and, at the same time, the capacities of that same5. Susan H. Williams, Democracy, Gender Equality, and Customary Law:Constitutionalizing Internal Cultural Disruption, 18 IND. J. GLOBAL LEGAL STUD. 65(2011).6. Id. at 66.7. Muna Ndulo, African Customary Law, Customs, and Women's Rights, 18 IND. J.GLOBAL LEGAL STUD. 87, 92-93 (2011).8. Paula Spieler, The Maria da Penha Case and the Inter-American Commission onHuman Rights: Contributions to the Debate on Domestic Violence Against Women inBrazil, 18 IND. J. GLOBAL LEGAL STUD. 121 (2011).9. Mala Htun and S. Laurel Weldon, State Power, Religion, and Women's Rights: AComparative Analysis of Family Law, 18 IND. J. GLOBAL LEGAL STUD. 145 (2011).10. Id. at 147.4INTRODUCTIONdiscourse and law to expose deep tensions and particularities inparticular locations, among particular communities, at particularmoments in time.Erika George situates her article in South Africa where theHIV/AIDS epidemic has been the impetus for a global social movementto use the legal frameworks and rhetorical tools of the human right tohealth as a counterweight to a global intellectual property rights regimethat privileges property and profit over health and access tomedicines." Specifically, she points to the alliance of activists fromSouth Africa, India, and Brazil on these issues to demonstrate theirability to influence access to medicines and thereby affect healthoutcomes for individuals with HIV/AIDS.Charles Piot's article on the "right" to be trafficked presents apolemic that demonstrates the potential tensions embedded in humanrights regimes.12 In stark contrast to a strong thread of human rightsdiscourse on human trafficking, Piot's article illuminates Togolesechildren's invocations of "human rights" as the right to be free fromparental control so that they may leave their villages and participate ina Nigerian labor regime that has been widely denounced as a humantrafficking tragedy.Jacqueline Solway, Jan Hoffman French, C6sar Rodriguez-Garavito, and Guillermo de la Pefia contribute articles that illustratesome of the divergent, malleable, innovative, empowering, destabilizing,and disturbing tacks that human rights take when applied to claims bycommunities for recognition of indigenous or minority status. Solwayillustrates how strong claims for minority self-identity and protectionwithin Botswana have resulted in the state's attempts to reduce theseclaims into celebrations of minority groups' dance, food, and costume."aThis integrationist approach to minority rights-at the local, state, andinternational level-has long been the norm, both in the minority rightsand the indigenous rights contexts.French's and Rodriguez-Garavito's articles demonstrate that theasymmetrical development of minority rights and indigenous rights hasresulted in legal claims for either minority or indigenous status thathave important substantive outcomes. Building on her prior work,French argues that the lack of definition of "indigenous" in the United11. Erika George, The Human Right to Health and HIVIAIDS: South Africa andSouth-South Cooperation to Reframe Global Intellectual Property Principles and PromoteAccess to Essential Medicines, 18 IND. J. GLOBAL LEGAL STUD. 167 (2011).12. Charles Piot, The 'Right" to be Trafficked, 18 IND. J. GLOBAL LEGAL STUD. 199(2011).13. Jacqueline Solway, "Culture Fatigue": The State and Minority Rights in Botswana,18 IND. J. GLOBAL LEGAL STUD. 211 (2011).56 INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 18:1Nations Declaration on the Rights of Indigenous Peoples has resulted inmultiple claims by communities in Brazil who stake claims onindigeneity, rather than minority status, even though they share noneof the indicia of indigenous "authenticity."14Touching on the integrationist paradigm that Solway's article onminority protections in Botswana illustrates so well (and which hasrepresented the paradigmatic approach to indigenous communities),Rodriguez-Garavito notes a palpable shift in the treatment ofindigenous people under international law from "the objectives ofintegration to that of respect for identity of [indigenous] populations." 5He illustrates and analyzes how this shift has taken root throughdiscussion of the free, prior, and informed consultation process that nowdominates the initial relations between indigenous actors and corporatemining operations seeking to extract natural resources from indigenouslands. Balancing these three articles, Guillermo de la Pefia's article is anote of caution about claims to indigeneity.' 6 He demonstrates that,despite strong constitutional protections for indigenous peoples inMexico, variant, slow, and ineffective implementation of legislation hasleft populations vulnerable.Peter Geschiere's article concludes this issue because it resonatesnicely with many of the ideas, claims, and groups discussed in thepreceding articles. Geschiere uses the vehicle of autochthony to explorewhat it means to "belong" in a global context and what autochthony andglobalization mean for citizenship claims and the paradoxes ofexclusion.' 7 Taken together with the many observations, questions, andproblems posed by each of the contributions to this issue, Geschiere'sexplorations are a wonderful way to conclude.14. Jan Hoffman French, The Power of Definition: Brazil's Contribution to UniversalConcepts of Indigeneity, 18 IND. J. GLOBAL LEGAL STUD. 241 (2011).15. C6sar Rodriguez-Garavito, Ethnicity.gov: Global Governance, Indigenous Peoples,and the Right to Prior Consultation in Social Minefields, 18 IND. J. GLOBAL LEGAL STUD.263, 268 (2011) (quoting ILO, PROGRAM AND BUDGET OF THE BIENNIUM 1986/1987: 60THFINANCIAL PERIOD T 50.16 (1985)).16. Guillermo de la Peita, Ethnographies of Indigenous Exclusion in Western Mexico, 18IND. J. GLOBAL LEGAL STUD. 307 (2011).17. Peter Geschiere, Autochthony, Citizenship, and Exclusion - Paradoxes in thePolitics of Belonging in Africa and Europe, 18 IND. J. GLOBAL LEGAL STUD. 321 (2011).

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