Minority Rights, Feminism and International Law

Voices of Amazigh Women in Morocco

Silvia Gagliardi

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000071672
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

Investigating minority and indigenous women's rights in Muslim-majority states, this book critically examines the human rights regime within international law.Based on extensive and diverse ethnographic research on Amazigh women in Morocco, the book unpacks and challenges generally accepted notions of rights and equality. Significantly, and controversially, the book challenges the supposedly 'emancipatory' power vested in the human rights project; arguing that rights-based discourses are sites of contestation for different groups that use them to assert their agency in society. More specifically, it shows how the very conditions that make minority and indigenous women instrumental to the preservation of their culture may condemn them to a position of subalternity. In response, and engaging the notion and meaning of Islamic feminism, the book proposes that feminism should be interpreted and contextualised locally in order to be effective and inclusive, and so in order for the human rights project to fully realise its potential to empower the marginalised and make space for their voices to be heard.Providing a detailed, empirically based, analysis of rights in action, this book will be of relevance to scholars, students and practitioners in human rights policy and practice, in international law, minorities' and indigenous peoples' rights, gender studies, and Middle Eastern and North African Studies.

Chapter 1

Theoretical framework^*

Relevant international human rights instruments recognise that ‘persons belonging to minorities may exercise their rights [ … ], individually as well as in community with other members of their group, without any discrimination’.¹ This approach to minority rights has also been adopted by scholars who argue that minority groups and indigenous peoples have a collective right to the protection of their group identity and culture.² Yet, both the definitions of those groups, and what constitutes their identities and cultures, remain contested.³ Still, others argue that the position of subordination of many minority and indigenous female subjects indicates that their rights are better preserved in an individual rather than a collective manner.⁴ This holds especially true when the ‘right to exit’ cannot be guaranteed for members of groups.⁵ As Patrick Thornberry powerfully states, ‘[c]ulture loses its shape, its power to compel and sense of fit, when the masses of those “subject” to it aspires only to “exit”, to break away’.⁶

1.1 Human rights: universality vs relativity

The human rights project has been examined and critiqued, for example, by a wide range of historians, (legal) anthropologists and TWAIL socio-legal scholars.⁷ Notably, questions have been raised with regard to the ability of this project to: deliver on transformative equality; ‘enable and empower’ the subaltern to speak; and, to be translated into a local vernacular and in languages other than English.⁸

* A previous, abridged version of this chapter was published in Silvia Gagliardi, ‘The Human Rights of Minority and Indigenous Women’, in International Human Rights of Women. International Human Rights, ed. Niamh Reilly (Singapore: Springer, 2019).

1 UNGA, ‘Res 47/135, ‘Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities’ (3 February 1993) 47th Session, Agenda Item 97 (B), a/Res/47/135, art. 3.1.

2 Kymlicka, The Rights of Minority Cultures.

3 See: ILO Indigenous and Tribal Populations Convention (No. 107), (1959 (entered into force)); ILO Convention Concerning Indigenous and Tribal Peoples (No. 169), (1991 (entered into force)); UNGA, ‘Res 61/295, ‘United Nations Declaration on the Rights of Indigenous Peoples’ (13 September 2007), 61st Session, Agenda Item 68, a/Res/61/295"; International Covenant on Civil and Political Rights (Adopted 16 December 1966, Entered into Force 23 March 1976) 999 Unts 171 (ICCPR), art. 27.

4 See, for example, Moller Okin, ‘Feminism and Multiculturalism: Some Tensions’; Moller Okin, Is Multiculturalism Bad for Women?

5 Kukathas, ‘Are There Any Cultural Rights?’

6 Patrick Thornberry, ‘The Convention on the Elimination of Racial Discrimination, Indigenous Peoples and Caste/Descent-Based Discrimination’, in International Law and Indigenous Peoples, ed. Joshua Castellino and Niamh Walsh (Leiden and Boston, MA: Martinus Nijhoff Publishers, 2005), 45.

7 See, for more on this movement, Makau Mutua and Antony Anghie, ‘What is TWAIL?’, Proceedings of the Annual Meeting (American Society of International Law) 94 (2000): 31–40.

8 To explore some of these different viewpoints and debates, see Samuel Moyn, Not Enough: Human Rights in an Unequal World (Cambridge, MA: Harvard University Press, 2018); Susan Slyomovics, The Performance of Human Rights in Morocco (Philadelphia: University of Pennsylvania Press, 2005); Harri Englund, ‘Cutting Human Rights Down to Size’, in Human Rights at the Crossroads, ed. Mark Goodale (New York: Oxford University Press, 2013), 198–207.

There are also a number of arguments, which challenge the idea of universality of the human rights project. David Kennedy cautions us against the claims to universality that the human rights movement puts forward. In particular,

The posture of human rights as an emancipatory political project that extends and operates within a domain above or outside politics – a political project repackaged as a form of knowledge – delegitimates other political voices and makes less visible the local, cultural, and political dimensions of the human rights movement itself.⁹

As Norberto Bobbio suggests,

Human rights however fundamental are historical rights and therefore arise from specific conditions characterized by the embattled defense of new freedoms against old powers. They are established gradually, not all at the same time, and not for ever.¹⁰

Bobbio’s reflection underpins some of the contestation around the human rights project. In her analysis of the universality versus relativity of human rights, Zehra Arat underlines that there are justifications for resistance to the recognition and application of the ‘International Bill of Rights’.¹¹ In this context, Arat affirms: ‘[w]hile the claims of state sovereignty are clearly about political power, the communitarian arguments also attempt to preserve the prevailing power relations’.¹²

9 David Kennedy, ‘Boundaries in the Field of Human Rights‘, Harvard Human Rights Journal 15 (2002): 115.

10 Norberto Bobbio, The Age of Rights, Allan Cameron Translation (Cambridge, MA: Polity Press, 1996).

11 The International Bill of Rights is the common denomination to refer to the ensemble of the Universal Declaration of Human Rights, ICCPR and ICESCR.

12 Zehra F. Kabasakal Arat, ‘Forging a Global Culture of Human Rights: Origins and Prospects of the International Bill of Rights’, Human Rights Quarterly 28, no. 2 (2006): 42.

Anthony Pagden’s approach asks, if one supports the idea of the universality of human rights, one should also be prepared to acknowledge the origins of human rights, their initial rationale (i.e. legitimising European countries’ struggle to impose their values on overseas empires),¹³ and how the narrative of human rights is still used as a justification to continue meddling in other countries’ affairs.¹⁴ Adamantia Pollis and Peter Schwab describe the original notion of human rights as ‘a Western construct with limited applicability’.¹⁵ Wendy Brown shifts the criticism of human rights from underlying Eurocentric values to being merely an extension of modern imperialism.¹⁶ Slavoj Žižek criticises the Western appeals to human rights for resting on three main and supposedly false assumptions,

First, that such appeals function in opposition to modes of fundamentalism that would naturalize or essentialize contingent, historically conditioned traits. Second, that the two most basic rights are freedom of choice, and the right to dedicate one’s life to the pursuit of pleasure (rather than to sacrifice it for some higher ideological cause). And third, that an appeal to human rights may form the basis for a defence against the ‘excess of power’.¹⁷

Being cognisant of the human rights project’s specific temporal and geographical origins, other approaches find the universality principle useful to pursue the human rights project and its goals. Another set of scholars aims to highlight how the human rights project is more than a Western-based concept and toolkit. Roland Burke, for example, identifies the crucial role played by Arab, African and Asian States to the notions and development of human rights.¹⁸ In the same vein, David Landy challenges the idea that human rights are a Western-imposed concept. He argues that such a view fails to consider the active role played by human rights advocates in developing and lobbying for these rights throughout the world, including in regions outside the scope of the ‘liberal’ West.¹⁹ In many Arab countries, for instance, opposition leaders and pro-democracy activists adopt ‘foreign-born’ human rights discourse to fight against authoritarian regimes that suppr...