This document introduces the first issue of The Universal, an annual human rights review. It discusses how human rights research has become a multidisciplinary field in recent decades, with contributions from fields such as law, philosophy, political science, anthropology, sociology, history, and literature. This multidisciplinarity has led to a more holistic understanding of human rights as both legal and extra-legal concepts, and has encouraged empirical analyses of how human rights function in practice. The first issue of The Universal aims to reflect this multidisciplinary nature of human rights scholarship through articles from various academic backgrounds.

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T H E U N I V E R S A L
V O L . 1 N O . 1 , M A R C H 2 0 1 6
U N I V E R S A L @ T H I N K R I G H T S . D K
T H I N K R I G H T S . D K
I S S N 2 4 4 5 - 9 4 5 3
E D I T O R - I N - C H I E F
A L E X A N D E R A N D E R S S O N
E D I T O R S
A N N E C A T H R I N E C A R L
E M I L K E L L E R K J E L D S E N - K R A G H
J O H A N J U U L J E N S E N
L I S A H A A G E N S E N
N I C H O L A S H A A G E N S E N
C O V E R A N D L A Y O U T
G E R T R U D H J E L M K O N G S H Ø J
S P O N S O R E D B Y
D A N I S H I N S T I T U T E F O R H U M A N R I G H T S
P R I N T E D B Y
R E G N B U E T R Y K C O P E N H A G E N 2 0 1 6

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T A B L E O F C O N T E N T S
F O R E W O R D
I N T R O D U C T I O N T O
T H E F I R S T I S S U E O F T H E U N I V E R S A L
Marie Juul Petersen
P . 7
E D I T O R I A L
C A T E G O R I Z A T I O N A N D C O N T E X T :
T O W A R D S A N I N T E R D I S C I P L I N A R Y
A P P R O A C H T O H U M A N R I G H T S
Nicholas Haagensen, Lisa Haagensen
and Alexander Andersson
P . 1 7
I N T E R V I E W
N E W F R O N T I E R S
O F H U M A N R I G H T S S C H O L A R S H I P
W I T H A N T H O N Y C H A S E
by Lisa Haagensen
P . 2 7
T H E R E V I V A L O F T A R O K O
H E A D H U N T I N G R I T U A L S I N T A I W A N
Kristoffer Ravnbøl
P . 3 7
D E - C A S T I N G I N D I A
Festival Godwin Boateng, Swapanil Reesha Sharma,
Caroline Winkler & Erika Matadamas
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D E F I N I N G L O C A L P R O B L E M S
Kamilla Falsted Dihle
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T R A N S N A T I O N A L M I G R A T I O N I N A
C O S M O P O L I T A N W O R L D
Clara Iglesias Rodríguez
P . 7 6
W H O I S R E S P O N S I B L E F O R A S Y L U M
S E E K E R S I N O F F S H O R E D E T E N T I O N ?
Nikolas Feith Tan
P . 9 0
C A L L F O R P A P E R S F O R
T H E U N I V E R S A L
A N N U A L H U M A N R I G H T S R E V I E W
P . 1 0 7
T A B L E O F C O N T E N T S

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F O R E W O R D
I N T R O D U C T I O N T O
T H E F I R S T I S S U E O F T H E U N I V E R S A L
Marie Juul Petersen
C O N T E M P O R A R Y H U M A N R I G H T S R E S E A R C H :
A M U L T I D I S C I P L I N A R Y F I E L D
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 Uni-
versal speak to this multidisciplinarity, including articles from students of anthropol-
ogy, 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 inter-
national 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 multidisci-
plinary 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 his-
tory. Similarly, associations across a wide disciplinary range have established human
rights sections, including the American Political Science Association, the Internation-
al 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 de-
monstrates, 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 as-
pects 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,
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political strategies, education, development aid – shaping and being shaped by politi-
cal, 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 re-
search, 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 inter-
national 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, ask-
ing how and why human rights law is made, by whom it is made, how it is imple-
mented 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, qualita-
tive studies of ‘the social life of human rights’ (Wilson 2006), applying anthropologi-
cal 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 philo-
sophic foundationalism, an emancipatory activist commitment, or legalistic, instru-
mental 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, theo-
retically 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 criti-
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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 uni-
versalizing 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 en-
courage 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
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world understand, practice, and experience their own identity, culture and traditions”
in order to ensure better protection of minorities.
F R O M M U L T I D I S C I P L I N A R I T Y
T O I N T E R D I S C I P L I N A R I T Y ?
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 bur-
geoning 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 activ-
ist 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, politi-
cal 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 ap-
proaching 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
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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 interdis-
ciplinary 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, chang-
ing, and multifaceted, shaped by and shaping not only law, but culture, identities,
politics, history and economy. Instead, the purpose is to facilitate ongoing interdisci-
plinary conversations and engagement on the different meanings, practices and pos-
sibilities 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 estab-
lished 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 un-
derstand 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.
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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 interna-
tional 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 rigor-
ous legal analysis to produce nuanced and relevant policy advice.6
Established with the purpose to further “a comprehensive and holistic understand-
ing” of human rights, and inviting students to “an interdisciplinary debate on human
rights,” The Universal seeks to contribute precisely to the development of interdisci-
plinary 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.
A U T H O R ’ S P R O F I L E
Marie Juul Petersen holds a MA and PhD from Department Cross-cultural and Re-
gional Studies, University of Copenhagen. She is a Senior Researcher at Danish In-
stitute for Human Rights. Her research centers on the relationship between human
rights and religion.
R E F E R E N C E S
Asad, T 2000, ‘What Do Human Rights Do? An Anthropological Enquiry’, Theory and Event,
vol. 4, no. 4
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.
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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 Fatal-
ism’, 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.
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cago Press, Chicago.
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Routledge, Abingdon.
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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 be-
tween 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.
Knop, K (ed.) 2004, Gender and Human Rights, Oxford University Press, Oxford.
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Merry, SE 2006a, Human Rights and Gender Violence, Cambridge University Press, Cam-
bridge.
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.
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Moyn, S 2010, The Last Utopia, Harvard University Press, Cambridge.
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Press, Phillidalphia.
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Domestic Change, Cambridge University Press, Cambridge.
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Sheeran, S & Rodley N (eds.) 2013, Routledge Handbook of International Human Rights
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C A T E G O R I Z A T I O N A N D C O N T E X T :
T O W A R D S A N I N T E R D I S C I P L I N A R Y
A P P R O A C H T O H U M A N R I G H T S
Nicholas Haagensen, Lisa Haagensen and Alexander Andersson
1 . I N T R O D U C T I O N
The 20th
century was characterized by widespread and horrific human rights viola-
tions 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 –
such as history, law, political philosophy, international relations and sociology – 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 num-
ber of distinct approaches (Cesarini & Hertel 2005; and see the foreword in this is-
sue). 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 stu-
dents 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
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together, the articles illustrate the potentiality of both multi-disciplinarity and inter-
disciplinarity 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 attribu-
tion 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 classi-
fications 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 member-
ship 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 subse-
quent ramifications) are examined with regard to the Dalit class in India or street chil-
dren 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, discuss-
ing 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 . C A T E G O R I Z A T I O N A N D A T T R I B U T I O N
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 catego-
rization 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, stan-
dardized 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-state’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
“transfer of normative value from procedural minorities and temporary minorities to
substantive minorities, which often became permanent social and cultural collectivi-
ties” (Appadurai 2006, p. 64).
In light of this process, and especially during the 1980s and 1990s, cultural mi-
norities embraced their identity classifications and used globalized human rights vo-
cabulary 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 dichoto-
mies 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 hu-
man 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 cat-
egorical 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 catego-
ries 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 repeat-
ing themselves in different organizational and institutional settings. These functional
operations constitute “systems of social closure, exclusion, and control” (ibid.). Sub-
sequently, 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 disad-
vantages. 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 enor-
mously.
A significant category in a more transnational context is that of the ‘refugee’. Ac-
cording 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 ex-
amining 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 rep-
resent ‘bare life’ or that which is excluded from the sovereign state, and the citizen is
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thereby that which is included. In this nation-state sense they are essentially ‘category-
less’. 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 in-
volved. 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 Iden-
tity and Control (1992 2008), Harrison White brings together language, temporal-
ity 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 dynam-
ics 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 impor-
tantly, 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 hu-
man 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
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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 pro-
vide 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 . C A T E G O R I Z A T I O N A N D H U M A N R I G H T S
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 P R O C E S S E S O F A T T R I B U T I O N A N D C A T E G O R I Z A T I O N
A R E I N F O R M E D B Y N U M E R O U S L O C A L
A N D G L O B A L C O N T E X T U A L E L E M E N T S .
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 Ravn-
bøl 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 cul-
turally “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 discrimina-
tion in India. As expanded upon in the article, these challenges are related to religion,
family, community and institutions/the state.
3 . 2 C A T E G O R I Z A T I O N A N D A T T R I B U T I O N L E A D S
T O T H E R E C O G N I T I O N O R D E N Y I N G O F R I G H T S .
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
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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 account-
able for the violation of their rights.
3 . 3 C A T E G O R I E S A N D A T T R I B U T I O N S P L A Y D I F F E R E N T
R O L E S I N T H E S T R A T E G I E S E M P L O Y E D
B Y T H E C A T E G O R I Z E D S U B J E C T S T H E M S E L V E S .
The strategies used by the Dalits to counter caste-based discrimination is charac-
terised 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 ad-
dressed by adopting different strategies, for example, a human rights approach is em-
ployed 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 pres-
sure 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 L O C A L , S U B J E C T I V E I D E N T I T I E S A N D G L O B A L ,
O B J E C T I V E C A T E G O R I E S D O N O T A L W A Y S C O R R E S P O N D .
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 inter-
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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 C A T E G O R I E S O C C U R
A T D I F F E R E N T L E V E L S O F A N A L Y S I S .
Where the articles by Boateng et al., Dihle, and Ravnbøl examine the contextual
dilemmas of categorization and attribution at local levels, Tan and Rodriguez pres-
ent 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-lev-
el by advocating for immigration to be regulated by inclusive common international
legislation as opposed to that of the nation-state being entered.
4 . W H E R E T O G O F R O M H E R E ?
To conclude, this inaugural issue of The Universal not only presents five different
cases of human rights issues illustrating diverse contextual and epistemological render-
ings; 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
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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 cat-
egorisation 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, anthropol-
ogy and philosophy can be directly related through an extended focus on categoriza-
tion, attribution, identity and context.
It is our hope that our attempt to create a multidisciplinary platform for inter-dis-
ciplinary discussions and perspectives on human rights will inspire further scholarship
in this direction. In light of these aspirations, possible future avenues towards multi-
disciplinary 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 cur-
rent 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.
A U T H O R ’ S P R O F I L E
Nicholas Haagensen holds a BSc in Business Administration and Sociology from Co-
penhagen 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.
R E F E R E N C E S
Agamben, G (1998) Homo Sacer: Sovereign Power and Bare Life. California: Stanford Uni-
versity Press.
Appadurai,A2001,CulturalRightsasanEnablingEnvironmentforCulturalDiversity,,Echoing
Voices, UNESCO, pp.1-40. Available from: <http://www.unesco.org/culture/aic/echoingvoic-
es/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. Princ-
eton: 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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N E W F R O N T I E R S
O F H U M A N R I G H T S S C H O L A R S H I P
I N T E R V I E W W I T H A N T H O N Y C H A S E ,
P R O F E S S O R , D I P L O M A C Y A N D W O R L D A F F A I R S ,
O C C I D E N T A L C O L L E G E
by Lisa Haagensen
L I S A H A A G E N S E N :
What is the most important new development in human rights scholarship?
A N T H O N Y C H A S E :
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 in-
creasing 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 dif-
ferent disciplines and that many of those disciplines focus on how human rights have
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been translated into the vernacular of local languages, as opposed to a singular global
language.
L I S A H A A G E N S E N :
Why are academic disciplines moving towards a greater focus on human rights?
A N T H O N Y C H A S E :
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 dis-
sonance between the academic assumption of the irrelevancy of human rights, and the
reality where many peoples were speaking the language of human rights.
L I S A H A A G E N S E N :
Why is it that interdisciplinary research is so important with regards to human
rights?
A N T H O N Y C H A S E :
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 Inter-
disciplinarity 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 Ho-
locaust 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
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develop some instruments that didn’t have much impact. From my international rela-
tions 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 hu-
man 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.
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L I S A H A A G E N S E N :
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?
A N T H O N Y C H A S E :
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 universal-
ism 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 no-
tion 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 perspec-
tive. 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 posi-
tionalities around the world they [human rights] need to recognize and be informed
by that multiplicity of identity.
L I S A H A A G E N S E N :
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?
A N T H O N Y C H A S E :
Yes and no. No in the sense that I don’t think any inherent universality of human
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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 po-
litical 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 inevi-
table 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 hu-
man 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 com-
ing 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.
L I S A H A A G E N S E N :
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 organiza-
tional political issues. When addressing the umbrella of human rights, categories and
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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?
A N T H O N Y C H A S E :
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 iden-
tify 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 sexual-
ity 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. Rosa-
lind 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 ‘sex-
ual 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
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diversities, being part of a group that is subject to marginalization by majoritarian
ideas of authority and power.
L I S A H A A G E N S E N :
Often these categories, or the groups themselves that are being categorized, use
their categorizations or descriptive identities to further their own human rights agen-
das. However, the imposition of such labels/identities from the outside may be un-
wanted 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, ex-
amined 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 rec-
oncile this dichotomy?
A N T H O N Y C H A S E :
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 sur-
prised 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 em-
powering 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
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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 no-
tions 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 hu-
man 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.
L I S A H A A G E N S E N :
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?
A N T H O N Y C H A S E :
I very much support greater recognition of pluralistic rather than singular identi-
ties – 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 accord-
ing to certain identities and sometimes quite powerful with a single identity, particu-
larly 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.
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L I S A H A A G E N S E N :
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?
A N T H O N Y C H A S E :
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 in-
form a more nuanced, multiple conceptualization of the human rights regime’s foun-
dations. 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 ac-
count. Human rights need to constantly be reinvented and revived and this is done
through political contestations and normative changes – redefinitions in those con-
texts 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
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SOGIE-related rights. And so it isn’t that I am opposed, per se, to those policy initia-
tives by the U.S. and the U.K, but one can recognize how they’re most likely coun-
terproductive, 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 poli-
cies 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.
A U T H O R ’ S P R O F I L E
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 mem-
ber at Think Rights and an editor at The Universal.
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T H E R E V I V A L O F T A R O K O
H E A D H U N T I N G R I T U A L S I N T A I W A N
A U T H E N T I C I T Y , I D E N T I T Y , A N D I N D I G E N O U S R I G H T S
Kristoffer Ravnbøl
A B S T R A C T
During the latter half of the 20th century, indigenous communities worldwide
began to organize themselves politically in order to demand indigenous rights, recog-
nition of ethnic identities, and reclaim lost land. In accordance with this political or-
ganization, 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 head-
hunting 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-ori-
entated 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 re-
vitalization 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 au-
thenticity actually means to ordinary people in the revitalization of cultural practices
in indigenous communities.
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37. 38 | T H E U N I V E R S A L 2 0 1 6
U N I T E D N A T I O N S D E C L A R A T I O N
O N T H E R I G H T S O F I N D I G E N O U S P E O P L E 2 0 0 7 :
“ I N D I G E N O U S P E O P L E S H A V E T H E R I G H T T O P R A C T I S E
A N D R E V I T A L I Z E T H E I R C U L T U R A L T R A D I T I O N S A N D
C U S T O M S . T H I S I N C L U D E S T H E R I G H T T O M A I N T A I N ,
P R O T E C T A N D D E V E L O P T H E P A S T , P R E S E N T A N D
F U T U R E M A N I F E S T A T I O N S O F T H E I R C U L T U R E S . ”
(United Nations 2007, p. 6)
1 . I N T R O D U C T I O N
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 non-
Chinese 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 con-
vince 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 sig-
nificant 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.
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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 power-
relations 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 ap-
proach 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 ac-
knowledged 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 . T A I W A N ’ S I N D I G E N O U S P O P U L A T I O N
Taiwan’s indigenous population3 belongs to the Austronesian family and is be-
lieved to have arrived in Taiwan around 4.000-4.500 B.C.E (Bellwood 1985; Cau-
3 The term aboriginal and indigenous seems to be used somewhat interchangeably in
aboriginal studies. I use the term indigenous.
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39. 40 | T H E U N I V E R S A L 2 0 1 6
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 indig-
enous 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 num-
4 According to Simon (2012), traditional headhunting rituals consisted of a series of ritu-
als 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).
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40. 2 0 1 6 T H E U N I V E R S A L | 41
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 of-
ficial recognition as an independent tribe in 2004 (ibid.).
3 . R E D I S C O V E R I N G H E A D H U N T I N G R I T U A L S
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 Ru-
dolph 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 hunt-
ing 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 revital-
ization, 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 be-
ing 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 bar-
becued 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 them-
6 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 ad-
vantage in revitalizing forgotten traditions or in supporting the elites in their pursuit
of political power (Simon 2010, p. 17).
4 . E L I T E S ’ A U T H E N T I C A T I O N P R A C T I C E S
Rudolph uses the term ‘authenticating practices’ to describe the strategic way the
elites reconstructedTaroko 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 prac-
tices 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 represen-
tations 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 stud-
ied 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 . A U T H E N T I C I T Y A N D I N D I G E N O U S P E O P L E
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 mod-
ern Western and anthropological construction rather than something evident in non-
Western 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 compet-
ing 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. Gin-
kel 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.
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6 . T H E R I G H T T O R E V I T A L I Z E T R A D I T I O N S
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 whale-
hunting 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 Na-
tive Americans. Essentially, the opponents’ message seemed to be: “once you have as-
similated, 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 polar-
ized 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 il-
lustrate 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).
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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 . R I T U A L P R A C T I C E A N D I D E N T I T Y
According to Catherine Bell (1992; 1997), performative ritual practices have the
potential to establish and transform identity by providing a space for individual agen-
cy. Here, individuals can simultaneously reproduce the ritual performance while seek-
ing to transform socio-political difficulties (Bell 1997, p. 82-3). With Bell’s practice-
theoretical 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 socio-
cultural 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 head-
hunting 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 accor-
dance 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
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manage to assert some sort of power relationship over the Han during the ritual’s per-
formances (Brown 2004, p. 117).
8 . C H A L L E N G I N G H A N P O W E R - R E L A T I O N S
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 tempo-
rary 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 sym-
bols 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 appar-
ent 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 . A U T H E N T I C I T Y R E V I S I T E D
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/decon-
structionist? 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 disregard-
ing 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 (Gin-
kel 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 iden-
tity (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” (Ru-
dolph 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 indig-
enous communities around the world.
1 0 . C O N C L U S I O N
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 recre-
ating ‘pure’ cultural traditions in order to convince the Han society of Taroko authen-
ticity. 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 di-
chotomies of authentic/inauthentic, modern/traditional, and constructionist/decon-
structionist 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 revitaliza-
tion 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
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focus on authenticity. This revisited focus, which centres on the ways in which au-
thenticity relates to identity and experience, can give us a more anthropological un-
derstanding 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 in-
digenous people around the world understand, practice, and experience their own
identity, culture, and traditions.
A U T H O R ’ S P R O F I L E
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.
R E F E R E N C E S
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, Lon-
don
Brown, MJ 2004, Is Taiwan Chinese? The Impact of Culture, Power, and Migration on Chang-
ing Identities. University of California Press, Berkeley, CA
Cauquelin, J 2004, The Aborigines of Taiwan. The Puyuma: From Headhunting to the Mod-
ern 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
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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 Indig-
enous 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 Uni-
versity 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 Per-
spectives. Oceania, 82(2): 164-185.
Simon, S, Awi, M 2012, ‘Human Rights and Indigenous Self-Government: The Taiwanese Ex-
perience’ 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 Com-
pany, 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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‘ D E - C A S T E I N G ’ I N D I A :
H O W D A L I T W O M E N ’ S R I G H T S C I V I L S O C I E T Y
O R G A N I Z A T I O N S T A C K L E C A S T E B A S E D S O C I O -
P O L I T I C A L & R E L I G I O - C U L T U R A L C H A L L E N G E S
Festival Godwin Boateng, Swapanil Reesha Sharma,
Caroline Winkler & Erika Matadamas
A B S T R A C T
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 . I N T R O D U C T I O N
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 wom-
en’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
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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 M E T H O D O L O G Y
This study examines three Dalit women’s rights CSOs working in India: Samajik
Shaikshanik Vikas Kendra (SSVK), Lok Shakti Sanghatan, and Dalit Freedom Net-
work (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 ad-
vancing 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 chal-
lenges 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 col-
lection 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 L I T E R A T U R E R E V I E W
The experiences of lower caste people and women in India have been widely re-
ported 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 mobiliza-
tion 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 re-
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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-po-
litical 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 H O W T H E C S O S T A C K L E T H E V A R I O U S L E V E L S
O F C H A L L E N G E S
1 . 3 . 1 H I N D U R E L I G I O N C H A L L E N G E S
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 author-
ity 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 ap-
pear to be more influenced by Hindu Manusmriti (doctrines) than they are by the In-
dian 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, oppos-
ing ideas and projects are seen as blasphemous. In this regard, given that Hindu doc-
trines 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 chal-
lenges 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.
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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 addi-
tion 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) cap-
tures the case of the Indian caste system as follows:
3 See more on this in Marx’s writings on religion.
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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 interview-
ees 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 Hindu-
based 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 organiza-
tions 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 at-
tack 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 self-
respect. They therefore come to see themselves as being a minority and as a result find
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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, discrimina-
tion, and oppression as calculated attempts to denigrate and blaspheme Hindu doc-
trines. 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, discrimina-
tion 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 violat-
ing 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 R E S P O N S E T O F A M I L Y - L E V E L C H A L L E N G E S
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 examina-
tion 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 wom-
en. 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 fam-
ily unit may compromise the benefits they receive from their familial relations, which
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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 facilitat-
ing their access to banking and financial services. This approach is founded on the no-
tion 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 addi-
tion, 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 inter-
views, 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 R E S P O N S E T O
C O M M U N I T Y - L E V E L C H A L L E N G E S
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
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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- Bud-
dhists 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 respon-
dents from SSVK:
“the community for the Dalit women is her biggest enemy, and who form this commu-
nity? 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 sup-
ported 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 commu-
nity 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 com-
munity 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 employ-
ment), water, and sanitation facilities exclusively for Dalits.
1 . 3 . 4 R E S P O N S E T O
I N S T I T U T I O N A L - L E V E L C H A L L E N G E S
As discussed previously, one of the key reasons for the continuous perpetuation of
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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; Iru-
dayam 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 ac-
companies 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). Cor-
ruption is pervasive in India and paying bribes to the state apparatus is almost a neces-
sity 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 govern-
ment 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 trans-
ferred 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
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in facilitating court proceedings and trials. In this way, the Human Rights Commis-
sion 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 con-
struction of alliances and affiliations with sister organizations with the aim of enlarg-
ing 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 strat-
egy. 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 ar-
eas, 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 grass-
roots le-vel while also forging alliances with sister (international) organizations.
1 . 4 D I S C U S S I O N O F F I N D I N G S
In this section we discuss the findings and gauge how the approaches adopted by
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the CSOs will impact on Dalit women’s rights advocacy in general. At the level of
religion, we found that the CSOs face a two-pronged challenge. First, they risk upper-
caste Hindus misunderstanding the struggle for Dalit women’s rights as blasphemous
or manoeuvrings against Hinduism. The second challenge faced by CSOs is the de-
sensitization of Dalit women who unquestioningly accept religious sanctions as divine
and inevitable.
The CSOs respond to these challenges by framing their advocacy projects as proj-
ects 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 senti-
ment 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 en-
gage 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
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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 viola-
tions 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, in-
creased family income as a result of women’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 women’s col-
lective 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 organiza-
tions, the caste issue will continue to reach global audiences, which will in turn pres-
sure state institutions to act.
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1 . 5 C O N C L U S I O N
As was the case during colonial times, the anti-caste movements of today’s In-
dia 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 under-
researched. 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.
A U T H O R ’ S P R O F I L E
Festival Godwin Boateng holds a BA in Sociology & Social Work (with Political Stud-
ies as minor program) from the Kwame Nkrumah University of Science & Technol-
ogy, Kumasi-Ghana and a MSc in Global Studies & International Development Stud-
ies 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
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Global Studies master program at the Roskilde University in Denmark and the second
at the Leipzig University, Germany.
R E F E R E N C E S
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 No-
vember 2014].
Ambedkar, BR 1946, Who were the Shudras? Available from: <http://164.100.47.134/pli-
brary/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/Chal-
lenges_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 Dis-
crimination in India. Available from <http://www.hrw.org/sites/default/files/reports/in-
dia0814_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-plight-
of-dalits-women-why-its-time-to-end-the-caste-system-both-in-india-and-the-uk/> [12 No-
vember 2014].
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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/hr-
bodies/cedaw/ruralwomen/fedonavsarjantrustids.pdf> [10 November 2014].
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D E F I N I N G L O C A L P R O B L E M S
D E F I N I N G L O C A L P R O B L E M S
Kamilla Falsted Dihle
1 . I N T R O D U C T I O N
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 coun-
tries, 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 inter-
fere 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 con-
ducted 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 . M E T H O D O L O G Y
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 of-
fered 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 field-
work 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

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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 field-
work, as well as my suggestions on what can be done to improve the programs offered
by the NGO’s.
3 . T H E I N C R E A S E O F S T R E E T C H I L D R E N
From a regional perspective, Tanzania holds a relatively positive status in the con-
text 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 ac-
cepted 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 will-
ingness 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 chil-
dren’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 gov-
ernment 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 devel-
opments (Shrestha 2009, p. 2).
2 http://www.ft.dk/samling/20131/almdel/URU/bilag/20/1295676.pdf
3 http://www.leksikon.org/sort_stat.php?id=152
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4 . T H E R E A S O N S F O R L E A V I N G
“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 in-
troduce 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 wash-
ing 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 . W H E N S O L U T I O N S B E C O M E T H E P R O B L E M
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 mem-
bers, especially the children’s growth and well-being” (Valentin 1998, p. 60). Further-
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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 pro-
grams, 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 reunifi-
cation 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 mea-
sure the condition of children according to whether they live at home or not simpli-
fies 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 di-
rect 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
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expectation that boys are required to provide from early age. Inadequate home condi-
tions 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 L I F E O F I N D E P E N D E N C E
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
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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 . S H O P P I N G F O R D I F F E R E N T P R O J E C T S
“Children manipulate their own identities accordingly; they shop around dif-
ferent projects, and may even say that non-governmental organizations are their
´clients´.”(Ennew & Swart-Kruger 2003, p. 92) The street boys seem to navigate be-
tween two different positions. The first position is defined by the international com-
munity 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 homo-
geneity 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 univer-
sal definition of street children. Consequently, by only staying at NGO’s sporadically,
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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 becom-
ing 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 en-
vironment 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 . R E S P E C T I N G D I V E R S I T Y
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 acknowl-
edged 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. More-
over, the article emphasizes the importance of not merely questioning factors defined
by international society as problems but also attempting to define these problems
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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 re-
fined human rights initiatives, whether they concern the rights of children, indigenous
people or minorities.
A U T H O R ’ S P R O F I L E
Kamilla Falsted Dihle holds a MSc in anthropology from the University of Copenha-
gen, 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.
R E F E R E N C E S
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 iden-
titet’, Tidskriftet Antropologi, Foreningen Stofskifte, nr.38, pp. 107-116.
Ennew, J & Swart-Kruger, J 2003, ‘Intorduction: Homes, Places and Spaces in the Construc-
tion of Children and Street Youth. Source: Children, Youth and Environments’, Street Chil-
dren 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 Ur-
ban 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’, Inter-
national Conference at Peter Ustinov Stiftung, Düsseldorf, Germany, pp. 1-3.
Valentin, K 1998, ‘Storbyens Børn – en risiko?’, Tidsskriftet Antropologi, Foreningen Stof-
skifte, nr. 38, pp. 55-64.
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T R A N S N A T I O N A L M I G R A T I O N I N A C O S M O P O L I T A N W O R L D
T R A N S N A T I O N A L M I G R A T I O N I N A
C O S M O P O L I T A N W O R L D
S E Y L A B E N H A B I B
A N D N A N C Y F R A S E R ’ S T H E O R I E S I N P R A C T I C E
Clara Iglesias Rodríguez
A B S T R A C T
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 sur-
rounding 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 de-
mands a more inclusive realm capable of dealing with the challenges of the post-West-
phalian 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 transnational-
ized 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 . I N T R O D U C T I O N
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

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principles that support inclusivity and allow all subjects, independent of their citizen-
ship 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 jus-
tice 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 . T H E O R E T I C A L O V E R V I E W
In much recent political theory – critical theory, feminist studies, deliberative de-
mocracy, 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 glo-
balization 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)

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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 hos-
pitality. 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 represen-
tation 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 misun-
derstanding 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 discus-
sion 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 solu-
tion 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-dimen-
sional view of the “what” of justice, encompassing economic redistribution, legal-
cultural 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 three-
dimensional structure for economic, social, and political analysis, which is rooted in
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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 “abnor-
mal 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-territo-
rial 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 regard-
ing 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 na-
tional 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 it-
erations. 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 ir-
regularly.
3 . T E S T I N G B E N H A B I B A N D F R A S E R ’ S M O D E L S
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 Moroc-
can 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
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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 T H E M E L I L L A B O R D E R F E N C E I N C I D E N T
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 cir-
cumvent 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 brutal-
ity 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 F R O M T H E O R Y T O P R A C T I C E
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 a-
nother country.
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I will start the analysis with Benhabib’s theory, focusing on the violation of mi-
grants’ 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 coun-
try, 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 immi-
grants 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: of-
ficials 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 surround-
ing 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 (Bur-
ridge 2014). These were circumstances that, combined with their previous despera-
tion, triggered the migrants’ attempts to enter Spain and the EU at any risk. The exis-
tence 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,
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that the law of hospitality must prevail over sovereignty whilst not necessarily over-
ruling 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 ex-
cluded from the right to full citizenship, they are refugees, and the kind of violent situ-
ations 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. More-
over, 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 “uni-
versalist norms are mediated with the self-understanding of local community” (Ben-
habib 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 con-
figuration is already transcending national boundaries and challenging its most basic
principles, such as sovereignty. Moreover, this move is reflected in current interna-
tional 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 no-
tion 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 im-
portant 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 condi-
tions 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 recogni-
tion 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
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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 minori-
ties, which can be due to three overlapping injustices: economic, social and politi-
cal. 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 inter-
related, 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 situ-
ation; we are still trying to analyze them within a Westphalian perspective. Such a
perspective appears somewhat unsatisfying, given the absence of a satisfactorily func-
tioning 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 con-
sidering 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 conse-
quence 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 back-
ground 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 . T O W A R D S A C O M B I N E D M O D E L
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 demo-
cratic 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 demo-
cratic 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 demo-
cratic 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 be-
lieve that their theories provide a solid ground for developing a critical ‘global’ public
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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 immi-
grants – 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 com-
mon 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 advan-
tages 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 pub-
lic “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 transnation-
al 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.
A U T H O R ’ S P R O F I L E
Clara Iglesias Rodríguez holds MA in philosophy at Aarhus University. She has a Li-
centiate degree from the Complutense University of Madrid and has also studied one
year at the Free University of Berlin.
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R E F E R E N C E S
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 -final-
mente-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. Avail-
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Crespo, M 2013, ‘Inside Spain´s immigration detention centers’, Equal Times 16 Decem-
ber. Available at http://www.equaltimes.org/inside-spain-s-immigration?lang=es#.VWNU7E-
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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,L2014,‘Brussels:Spainmustexplainuseofrubberbulletsinmigranttragedy’,ElPais14
February. Available at http://elpais.com/elpais/2014/02/14/inenglish/1392410803_256988.
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nication, International Political Science Association (IPSA), Granda, Spain, 12-13 September.
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York: Columbia University Press.
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ber-December, pp.69-88.
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Fraser, N 2010a, ‘Injustice at Intersecting Scales: On ‘Social Exclusion’ and the ‘Global Poor’’
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com/content/13/3/363.abstract.
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Fraser, N 2010b, ‘Who Counts? Dilemmas of Justice in a Postwestphalian World’, Anti-
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8330.2009.00726.x/abstract.
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W H O I S R E S P O N S I B L E F O R A S Y L U M S E E K E R S I N O F F S H O R E D E T E N T I O N ?
W H O I S R E S P O N S I B L E F O R A S Y L U M
S E E K E R S I N O F F S H O R E D E T E N T I O N ?
T H E D E A T H O F R E Z A B A R A T I
A N D R E S P O N S I B I L I T Y
U N D E R I N T E R N A T I O N A L H U M A N R I G H T S L A W
Nikolas Feith Tan
A B S T R A C T
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 Aus-
tralia responsible for exercising effective control over the detention centre. Secondly,
the general international law doctrine of State responsibility may hold Australia re-
sponsible for complicity in Mr Barati’s death.

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W H O I S R E S P O N S I B L E F O R A S Y L U M S E E K E R S I N O F F S H O R E D E T E N T I O N ?
1 . I N T R O D U C T I O N
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 Bor-
ders 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 off-
shore; 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 migra-
tion 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 in-
troduction 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, co-
operation 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 multi-
lateral 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.

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W H O I S R E S P O N S I B L E F O R A S Y L U M S E E K E R S I N O F F S H O R E D E T E N T I O N ?
that non-State actors may also share responsibility for internationally wrongful acts.
Against this backdrop, an analysis of state responsibility is apposite. State respon-
sibility is a distinct concept in international law, referring to rules governing the ac-
countability of states for breaches of their international obligations (ILC 2001; Glee-
son 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 Australian-
led 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 . H I S T O R I C A L C O N T E X T : A U S T R A L I A - L E D C O -
O P E R A T I O N O N M I G R A T I O N C O N T R O L
2 . 1 T H E P A C I F I C S O L U T I O N
To understand the circumstances surrounding Mr Barati’s death and Australia–
PNG cooperation in this area, it is important to understand the evolution of Aus-
tralia’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 ar-
ticle 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 (Mag-
ner 2004:82). The Australian government entered into arrangements with Nauru and
PNG that ensured asylum seekers bound for Australia were diverted to these develop-
ing States for detention and processing. The Pacific Solution was born.
This radical policy change shifted migration control from the Australian main-
land 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 2006-
07. (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 F A I L E D M A L A Y S I A
A N D E A S T T I M O R S O L U T I O N S
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 ‘refugee processing centre’ 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 Austra-
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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 (UN-
HCR 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 Con-
vention 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 O P E R A T I O N S O V E R E I G N B O R D E R S
On 16 August 2012, Australia reinstituted a strengthened version of Pacific Solu-
tion, 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 assess-
ment 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
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police force ‘for their operations relating to’ the Manus Island Centre (Clause 6). Aus-
tralia also funds and coordinates provision of services from non-State actor contrac-
tors. 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 Ref-
erences 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 . T H E E V E N T S O F 1 6 - 1 8 F E B R U A R Y 2 0 1 4
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 Af-
fairs 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 pro-
tests. 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
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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 Consti-
tutional 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 refu-
gees. 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).
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4 . R E S P O N S I B I L I T Y F O R M R B A R A T I ’ S D E A T H
U N D E R I N T E R N A T I O N A L L A W
4 . 1 P N G A N D A U S T R A L I A ’ S O B L I G A T I O N S
U N D E R H U M A N R I G H T S L A W
While the bilateral cooperation arrangements between Australia and PNG un-
doubtedly give rise to a raft of human rights and refugee law issues, including viola-
tion 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 fur-
ther 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 terri-
tory 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 mea-
sures 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.
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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 gov-
ernment. 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 terri-
tory, 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 (Parliamen-
tary 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 Constitu-
tional 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 particu-
lar 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 Conven-
tion 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 Con-
tracting States’ responsibility continues even after their having entered into treaty commit-
ments 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 Aus-
tralian 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 Af-
fairs References Committee 2014 para 7.32).
In relation to Mr Barati, his presence on Manus Island was due to Australia’s ac-
tions; 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 Af-
fairs References Committeepara 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 ob-
ligations under Article 6(1) of the ICCPR.
4 . 2 S H A R E D R E S P O N S I B I L I T Y
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 Montene-
gro) 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)
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Article 1 provides that every internationally wrongful act of a State entails its in-
ternational responsibility. Commentaries to the Articles provide: ‘each State is respon-
sible for its own internationally wrongful conduct…The principle that State respon-
sibility 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 commit-
ted. 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 require-
ments of Article 16.
In the present case, Australia’s significant financial, managerial and operational in-
fluence 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). Commentar-
5 For detailed views on attribution, see Francesco Messineo, ‘Attribution of Conduct’, in Nollkaem-
per, 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.
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ies to the ILC Articles cite ‘financing of the activity in question’ as an example of con-
duct 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 asy-
lum-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 like-
lihood 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 . C O N C L U S I O N S
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 exam-
ined 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 interna-
tional 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 con-
trol. Australia may exercise effective control over the Manus Island Centre where Mr
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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 mat-
ters. Whether on the basis of extraterritorial jurisdiction or complicity, such a finding
demonstrates that extraterritorial migration control is not beyond the reach of inter-
national 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 prevent-
ing further deaths in offshore detention.
A U T H O R ’ S P R O F I L E
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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W H O I S R E S P O N S I B L E F O R A S Y L U M S E E K E R S I N O F F S H O R E D E T E N T I O N ?

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C A L L F O R P A P E R S
C A L L F O R P A P E R S F O R
T H E U N I V E R S A L
A N N U A L H U M A N R I G H T S R E V I E W
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 Eu-
rope”. 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 mul-
tidisciplinary 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, re-
search-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 ac-
cordance with the advice from the two peer reviewers before publication.
It is also possible to contribute with smaller pieces such as literary reviews, re-
sponses 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 re-
ceive 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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