Refracting rights from the margins: re-shifting, re-scripting, re-inventing

Victims of human rights are very often the subjects of human rights research, but their perspectives are often refracted through layers of secondary sources or analytical debate that risk obscuring first-hand experience at the margins. Some questions, however, allow us to move past these limitations in order to probe more deeply—not only the lived experience of those who endure human rights violations, but also to explore the ways in which human rights discourses and practices are understood by these actors; that is, how rights are refracted at the margins. We challenge current conceptions by asking: how do international human rights and humanitarian law regimes either extend or impede the everyday enjoyment of rights of marginal individuals and communities? How do victims of state violence and socioeconomic injustice perceive the international law-based human rights framework? To what extent do they engage with and draw on human rights discourses and institutions to articulate their claims?

In grappling with these questions, this Special Issue of the Australian Journal of Human Rights aims to contribute to the critical turn in human rights scholarship through an exploration of the everyday experience and practice of human rights at the margins. This includes and is not limited to those making claims from marginal spaces such as carceral institutions, urban slums and occupied indigenous lands. The individuals and communities living in these areas form the growing body of subaltern peoples across the northern and southern hemispheres, whose voices are largely missing in much of the contemporary human rights scholarship.

In exploring how human rights are refracted, contested and even transformed at the margins, this Special Issue highlights examples of the interplay between the international human rights framework and indigenous/local discourses and mechanisms of social justice, with the aim of identifying synergies as well as tensions. In so doing it seeks to contribute to a nuanced appraisal of the current state, potentialities and limits of human rights, and more broadly ongoing efforts across the social sciences to ‘decolonise’ the study of marginal individuals and communities, particularly those in the Global South as well as in indigenous communities of colonial states.

Based on the papers in this Special Issue, we make a few general observations about rights’ potentialities at the margins. First, laws and formal human rights institutions do not necessarily guarantee the fulfilment of rights, a point that is not new to us.¹ On the contrary, law is not infrequently co-opted by states and powerful corporations to entrench inequalities and further their political and economic interests at the expense of rights. Second, rights activism and campaigns drawing on legal discourses are not necessarily effective in securing rights at the margins, yet activists by and large continue to rely on legal discourse to articulate their claims. Third, while human rights laws proclaim they are universal entitlements, several papers show that governments, corporate interests and public sentiment largely determine which rights-claims will be recognised or otherwise ignored. Fourth, there are hints that social movement activism can achieve immediate short-term, single-issue gains, but there is insufficient evidence to conclude whether this can translate into structural changes that would influence long-term social justice and emancipatory outcomes. Overall, the papers suggest much work remains ahead to better ensure rights at the margins.

The papers

Alison Holland’s paper on indigenous negotiations over the implementation of the landmark Mabo (No.2) judgment dives into a pivotal moment in Australian human rights and indigenous rights history. The paper highlights the prominent role played by the Aboriginal and Torres Straits Islands Commissioner (ATSIC) in forging a powerful indigenous grassroots coalition that framed demands through the discourses of human rights and social justice. This local (Australian) grassroots movement drew on emerging norms of international law and sought to connect the members’ work with the norms of United Nations human rights bodies and processes. Tellingly, the paper also highlights deep resistance by Australian states to Mabo (No.2). These state governments, Holland notes, were ‘the site of historic exclusion and discrimination that worked against indigenous rights’. Ultimately the capitulation of the central government to states’ demands, largely in the name of ensuring that mining corporations could continue to extract freely without indigenous interference, led to a compromised vision of indigenous rights within the Native Title legislation enacted in 1993 to implement Mabo (No.2), and ultimately, the reframing of native title to a land management issue rather than a question of indigenous sovereignty and self-determination.

Behrouz Boochani and Clare Loughnan’s essay on Australia’s border security policy raises troubling questions about the ways in which some rights claimants are seen as ‘worthy subjects of human rights’, while others are not. Decisions on who should receive rights are predicated on politics, public sentiment and stereotypes of vulnerable victimhood rather than legal entitlement. As they put it: ‘Human rights are not naturally available to all: they do not attach seamlessly, unless those claiming such rights are recognised (by the state) as worthy or ideal subjects of human rights’. The authors draw on Makau Mutua’s decolonial critique of human rights and support their arguments with a comparison of the treatment of single men detained on Manus Island and the Nadesalingam family from Sri Lanka.² Both groups were detained as part of Australia’s crackdown on irregular immigration. The authors note that ‘human rights were like an apparition that never fully materialised’ for the men at Manus. On the other hand, the Nadesalingam couple and their Australian-born children were the focus of a popular and ultimately successful human rights campaign which prompted their release on discretionary grounds. While their release was a positive outcome for the family, it masked the systemic violence of the border protection system which continues to deny the rights of countless other individuals, including the men on Manus.

While the law and formal politics have played ambivalent roles, at best, in securing rights at the margins in the majority of papers in this Special Issue, Camilo Eduardo Espinosa Dias argues differently in relation to the Villa Gloria community in the Colombian Caribbean. Dias’ paper provides a historicised overview of everyday human rights practices of Villa Gloria, a marginal district constituted primarily of ethnic Afro-Caribbean displaced victims of armed conflict. The paper focuses on three practices that Villa Gloria residents deploy to assert and secure their rights, namely: defence of territory; particular recognition as an ethnic community and as victims of war; and peaceful resistance strategies. Dias argues that these practices ‘contribute to the survival of a community that is anchored to its physical territory’. Dias’ spatial thrust here is accompanied by a careful analysis of the temporal registers of human rights, those that disrupt linear assumptions about both violations and the efforts made to respond to them. Discussing the 1991 Constitution and the 1993 Black Communities law, Dias asserts that ‘the law and the peace process have been important for positioning the discourse of truth, justice, reparation and reconciliation, which has caused a change in the power relations between the victims and the state’.

Ihab Shalbak’s critique of human rights in occupied Palestine contrasts the ways in which the legal human rights non-government organisation Al-Haq and the Palestinian Liberation Organisation (PLO) dealt with the question of national self-determination. According to Shalbak, ‘even if the lawyer and the fighter both fought for the same aspirations, they differed in their approaches to realising them’. While the human rights lawyers initially skirted around self-determination, the PLO stayed true to the principle up until the 1993 Oslo peace accords, which pacified and incorporated the PLO into the settler-colonial governance structure. Post-Oslo, Shalbak observes that ‘human rights methods, norms and style of activism have not only re-posed the conflict as a question of government but, in some cases, counterintuitively, they have participated in the colonial process of governance’. The paper gives concrete examples of this, including human rights lawyers participating in the process of demarcating the separation barrier erected by Israel, thus effectively ‘humanising and legalising the occupation’. While more recent reporting from Al-Haq adopts more confrontational, anti-colonial language, human rights work still operates within the framework of uncurtailed Israeli government settler-colonial sovereignty and power.

Imran Ahmed’s paper highlights the dual uses and potentialities of the law: as an instrument of state power and repression, while also featuring prominently in activists’ claim-making for rights and citizenship. The paper charts the erosion of Muslim minority rights in India following a citizenship amendment law enacted in 2019 by the Hindutva far-right nationalist Bharatiya Janata Party (BJP) government. Ahmed frames the 2019 law as a ‘legal expression of Hindu nationalism’, as it ultimately serves the BJP’s long-term goal of transforming India into a ‘Hindu Rashtra’ (Hindu nation). The paper includes a case study of a Muslim grassroots campaign against the 2019 law, which reveals some of the tensions that manifest in using law-based approaches to secure human rights. Ahmed observes: ‘The assertion of the Constitution’s sanctity prominently marked Muslim activism in their opposition to the (2019) law’. Activists filed legal petitions and invoked iconic Hindu figures from India’s earlier tolerant democratic history in their protest slogans, including Gandhi and Dr Bhimrao Ambhikar, the ‘author’ of the Constitution, while emphasising the congruency between Indian and Muslim identities. These efforts were undertaken in order to counter BJP narratives that framed Muslims as ‘outsiders and infiltrators’. Ultimately the campaign failed, partly due to Constitutional ambiguities that paradoxically affirm minority religious rights while encouraging their assimilation. Despite the failings of the law, Ahmed argues that Constitutional and legal reform remain the best hope for minorities to achieve rights and equal citizenship in India.

Ingrid Matthews and Lynda Holden’s article presents a damning indictment of the ‘colonial logic’ of forced child removal laws in New South Wales. They note that Aboriginal dispossession was historically achieved ‘using laws backed by force, a jurisprudence of colonisation that still dominates today’. Aboriginal children are ‘funnelled into the carceral archipelago’ through the workings of parallel regimes of child protection and criminal law-enforcement regimes, which disproportionately target those who are poor and racialised. The mass incarceration of Aboriginal children through child removal laws effectively continues colonial-era Stolen Generation policies which dispossessed the First Nations of their land and sovereignty and erased their culture. As they put it: ‘Whether on a mission or in a cell, Aboriginal movement is contained to prevent transfer of language, knowledge, ceremony, and culture to their descendants’.

Jernej Letnar Černič’s article demonstrates the power of social movements in effecting human rights reform. In examining a successful social movement campaign against the Serbian government aimed at stopping Rio Tinto from mining lithium in the Jadar Valley southwest of Belgrade, the paper describes the bringing together of ‘unlikely allies’ with often differing priorities, including environmental and human rights activists, anarchists, local populations and political opposition. The campaign led to the revocation of Rio Tinto’s licence in 2022 and the annulment of all administrative decisions pertaining to the Jadar project, alongside other administrative and regulative changes to prevent corporate interests from overriding the public good. The paper makes a strong case for the potential of social movement activism to compel large corporations and governments to put human rights interests first above economics without a heavy reliance on either domestic or international law. At the same time, the law is not entirely absent from the campaign. In particular, the domestic law of other countries (like Germany) plays a role in shaping the norms of corporate stakeholders. The broader impacts beyond the Jadar project are unclear. The author observes: ‘It remains to be determined if such a social movement against Rio Tinto was a one-time event or if it propelled a more systemic approach to business and human rights in Serbia and beyond’. Either way, this example provides tantalising clues of what social movements can accomplish when social movement actors can unite around human rights interests.

Tayechalem Moges’ paper takes on a human rights issue of concern to the global human rights community of practitioners—namely child marriages—and provides a less oft-heard perspective in arguing that in the Ethiopian context customary norms and the formal law are not in binary tension, but instead, troublingly converge to perpetuate the victimisation of child wives. The paper draws on empirical data gathered during fieldwork in the Amhara Region of Ethiopia, including interviews with former child wives (i.e. those who married under 18). Although Ethiopian laws have been reformed to ban child marriages, the author observes that ‘formal law has done very little to eliminate violence against child wives, it rather regulates when and where violence against child wives is permitted’. The author argues in favour of a ‘transformative human rights approach’, including not only reform of laws, law enforcement institutions and justice processes, but also other interventions to address the economic, social and cultural factors which encourage the continuance of child marriage and violence against women and girls.

Understanding the nuance of marginal perspectives, whether from those with lived experience or from those who hope to shed or alter traditional law-based approaches in favour of more creative and inclusive ones, gives the discourse and practice of human rights a different weight and feel. This re-shifting of the weight and mass of things is, in fact, what happens to refracted light and sound when it passes through a new medium. In this Special Issue, we hope to have accomplished something similar by re-shifting and rescripting the priorities of subjects—both subjects as topics and subjects as the bodies on which human rights violations are made, and from which claims may emanate. This rescripting often begins the process of finding new ways of communicating through different disciplines and discourses,³ something we have hewed to in this article.

The kind of refraction that we hope this Special Issues achieves is not, of course, a panacea. But it does add to the voices that call for scholars and practitioners to pause and critically reflect on the current state of human rights in the world today.⁴ While we have more human rights laws and institutions than at any other time in history, violations continue unabated, including genocides, mass displacements and incarceration of vulnerable migrants seeking safety.⁵ Contra traditional approaches that promote the myth of the civilisational superiority of the ‘West’ over the ‘rest’, the scholarship in this Special Issue shows us that gross violations are not confined to particular parts of the world. Many democratic states that continue to promote the institutionalisation of human rights internationally are deeply complicit in many gross violations at home and elsewhere. The discursive strength of a conversation that reveals this sobering reality is one way to heed Mark Goodale’s call for the ‘reinvention of human rights’, wherein rights ‘must be conceived beyond the control of state institutions and the principle of sovereignty itself, but also beyond the boundaries of law’.⁶ Our Special Issue, we hope, contributes to that call and to that conversation.

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No potential conflict of interest was reported by the author(s).

Correction Statement

This article has been corrected with minor changes. These changes do not impact the academic content of the article.

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Notes on contributors

Susan Banki

Susan Banki is an Associate Professor at the University of Sydney. She writes on refugees, forced migration, and transnational activism. Her book, The Ecosystem of Exile Politics: Why Proximity and Precarity Matter for Bhutan's Homeland Activists, will come out with Cornell University Press in 2024.

Suraina Pasha

Dr. Suraina Pasha is an independent researcher with a PhD from the University of Sydney, LLB and LLM degrees from the University of Leicester, and a professional background in human rights practice.

Notes

1 Susan Banki, Elisabeth Valiente-Riedl and Paul Duffill, ‘Teaching Human Rights at the Tertiary Level: Addressing the “Knowing–Doing Gap” Through a Role-Based Simulation Approach’ (2013) 5(2) Journal of Human Rights Practice 318.

2 Makau Mutua, ‘Savages, Victims, and Saviors: The Metaphor of Human Rights’ (2001) 42 Harvard International Law Journal 201.

3 Dianne Otto, ‘Lost in Translation: Re-Scripting the Sexed Subjects of International Human Rights Law’ in Anne Orford (ed), International Law and Its Others (Cambridge: Cambridge University Press 2006), 318–56.

4 E.g. Suraina Pasha, ‘The Practitioner’s Bookshelf: Review of Leila Abu-Lughod’s “Do Muslim Women Need Saving”?’ (2022) 14(1) Journal of Human Rights Practice 363.

5 E.g. Samuel Moyn, Not Enough: Human Rights in an Unequal World (Harvard University Press 2019); Rosa Freedman, Failing to Protect: the UN and the Politicisation of Human Rights (Hurst Publishers 2014); Eric Posner, The Twilight of Human Rights Law (Oxford University Press 2014); David Chandler, From Kosovo to Kabul and Beyond: Human Rights and International Intervention (Pluto Press 2006).

6 Mark Goodale, Reinventing Human Rights’, Stanford Studies in Human Rights (Stanford: Stanford University Press 2022) 16.