stefanou-haag, efrosini - the transformative potential of human rights

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Jones, Melinda --- "The Transformative Potential of Human Rights" [1999]AUJlHRights 18; (1999) 5(1) Australian Journal of Human Rights 1

Introduction - The Transformative Potential of HumanRightsMelinda Jones[*]

Human Rights EducationObjectives of Human Rights EducationTargets/Recipients of Human Rights EducationApproaching the Teaching of Human Rights

(a) Promoting Inclusive Education(b) Developing an Inclusive School Curriculum(c) Adopting Inclusive Teaching Strategies

Australian Journal of Human RightsConclusion

The concept of human rights signifies the idea that society should not just recognise andaccommodate difference, but that society should be transformed by the inclusion of thatdifference into its daily modus operandi. For human rights to take on the form of atransformative morality, it is essential that the idea of human rights be explored and thatthe principle of equality it incorporates should imbue formal education on all levels. Weare, in 1998, approaching the midway point in the United Nations Decade for HumanRights Education. We are also at a point of incredible turmoil, a point where many of thehuman rights gains made over the last 20 years have been swept aside in a matter ofmonths, and where racism and hatred have been granted a new legitimacy. This makesthe task for those of us working towards effective equality urgent. The Australian Journalof Human Rights plays a small but significant part in highlighting abuses of human rightsand in the debate about how to go about the task of achieving equality.

Human rights can be approached from two directions. One approach is, beginning withinternational law, to extend from the formal documents encapsulating ideals of justice intorules or legal aspirations. This approach takes the standards set in international fora andat the domestic level (as proclaimed in bills of rights etc) and engages in analysis andcomparison of practice and law. The alternative approach moves from moral,

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philosophical and legal precepts of `rights', and appeals to notions of justice and equalityto disclose injustice and inequality. For many, the two approaches overlap, and bothsources are called upon to detect differential treatment and oppression of those lackingpower in society. For ultimately it is those characterised as `outsiders' who are victims ofabuse, indifference and invisibility, and the mainstream who are inadvertently or overtlythe holders of power who are able to resist inequality, adapt legal structures to theirbenefit and perpetuate the idea of the `normal' and `abnormal'. However, normalisingoutsiders will not have the effect of overcoming inequality. Work of feminist scholars hasdemonstrated the unacceptability of simply expecting women to become men, and that ifequality is to be meaningful it is essential to challenge the phallocentric character ofsociety and to work to bring about the transformation of society to reflect the reality ofwomen's lives as well as those of men. From this work it is made clear that if we are to besuccessful in achieving equality on all fronts, it will be necessary to bring aboutfundamental change in the distribution of power and in our idea of commonsense.Human rights education needs to invoke a transformative morality which will imbue uswith a sense of true equality as `right'.

Human Rights Education

The United Nations Decade of Human Rights Education runs from 1995 until 2004. TheDraft Plan of Action for the UN Decade for Human Rights Education sets out thenormative basis and the objectives of human rights education in very broad terms.[1] Theoverall objective of human rights education is to eradicate prejudice and to establish thefull range of civil, political, social and economic rights. Human rights education is locatedin political activity -- in direct engagement in concrete, people-focused, issue-oriented,particular struggles -- as well as in human rights courses taught in schools anduniversities. There is seen to be a need to provide human rights training for professionals(judges, lawyers, prosecutors, police officers, prison personnel, military officials,teachers); for members of NGOs; for the mass media; for health care workers andstudents; as well as a need to train the trainers. It is notable that human rights educationwill often not bear that name, and that much human rights learning can take place ininformal settings.

Human rights education necessarily goes beyond the imparting of knowledge aboutinternational law and international human rights instruments. It involves teaching,learning, and understanding human rights principles as basic moral principles -- as normsto govern our everyday experiences. This means that the purpose of human rightseducation is to achieve acceptance that, at a deep level, as individuals, families, groups,communities and even states, we must appreciate and accommodate difference, and beable to move beyond this to a level of all-inclusive equality.

Educational programmes must be tailored to meet the needs of the community oflearners. This is especially so given that there will be very different human rightseducation needs in various countries and even areas within countries.[2] In designingand implementing human rights educational activities, the social and politicalenvironment must assume significance. Different strategies for human rights educationmust be adopted depending on whether democratic norms are accepted or established ina given country; whether there is an authoritarian regime; and whether human rights areviewed as no more than matters of diplomatic rhetoric and political convenience. Human


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rights education must also occur at a number of points along the educational continuum ifit is to be successful.

Objectives of Human Rights Education

To translate the principles of human rights education into successful (broadly defined)educational programmes, it is essential to move from the level of generality to targeteducational needs. The objective of the education must not lose sight of the ultimateprinciple of according dignity and respect to all people, but must incorporate specific,realisable objectives which ideally incorporate measurable outcomes. Innovation inhuman rights education will be the result of lateral, context based, imaginative objectivesetting, which go beyond mainstream educational approaches to addressing the specifichuman rights matters under consideration.

In the field of education promoting the human rights of people with disabilities, forexample, it is desirable to teach the values of individual responsibility and moral courage(to the non-disabled population), to eradicate prejudice and to promote enablingenvironments in which people with disabilities are included in the community and are ableto participate fully in the life of that community.[3] One objective in human rightseducation in this field is the amelioration of the disabling effect of the impairment. Anotherapproach is to design programmes to educate people about the prevention ofimpairment. This latter approach, which should in no way detract from dealing with thevery significant human rights abuses to which people with disabilities are subjected, willnecessarily focus on maternal (particularly antenatal) health and nutrition, and on theimplementation of safety standards in the workplace.

In light of the potential of human rights education for social transformation, the firstprinciple contained in the statement which resulted from the Workshop on Asia-PacificHuman Rights Education: the Right to Human Rights Education, convened in SydneyAustralia in August 1996, is worth recalling:

Human rights education is not an end in itself, but must aim to promote socialtransformation ... As affirmed in the 1993 UNESCO World Plan of Action onEducation for Human Rights and Democracy, human rights education mustbe `participatory', `creative, innovative and empowering at all levels ofsociety'. Human rights must be brought into all aspects of education andsocial discourse.[4]

Targets/Recipients of Human Rights Education

While it has been generally thought appropriate to direct human rights education at thosewho suffer human rights abuses, at political activists campaigning for human rights, andat those in positions of authority who have the potential to perpetrate or prevent humanrights abuses, a more recent strategy of human rights education is to direct the teachingand learning to as wide an audience as possible. To prevent the phenomenon of the`innocent bystander' requires the teaching of not only recipes for rights and discernmentof wrongs, but the generalised imparting of ethical principles concerning individualresponsibility and moral courage. In particular, human rights education should take placein developed countries within the compulsory school sector. Unless human rights


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education involves the evocation of human rights as a transformative morality, andpromotes significant changes in power relations within society, it will be unsuccessful.

Approaching the Teaching of Human Rights

(a) Promoting Inclusive Education

Human rights education begins with the premise that all people are entitled to be treatedwith dignity and that it is not acceptable to discriminate against anyone on the basis ofreligion, ethnicity, gender, sexual orientation or race. An important aspect of self-identityis established through membership of and participation in the community in which onelives. Robert Post has commented that a community involves `a particular way in whichsocial organisation is created, by internalising norms into the identities of persons.Because such internalisation must occur for a person to have a "self", community is aprimary form of social organisation; it is always with us. We value it as we valueourselves'.[5] Stanley Benn has also noted that human rights are conditions ofself-realisation, as it is only through participation with others that we have the opportunityto realise or to fulfil our nature.[6]

Apartheid in South Africa involved massive human rights abuses which were perpetuatedthrough segregation.[7] Racism in the United States was embodied in the segregation ofblack students until the Supreme Court ruled against it.[8] Australian society continues toconstruct community in a fashion which excludes and disenfranchises many of itsmembers. Members of ethnic groups are ghettoised and schools continue to perpetuatemyths about indigenous people as `primitive' and `different' by focusing teaching aboutindigenous culture in a way which separates and differentiates rather than empowers andincludes. For example, schools invite traditional dancers, and teach about traditionalweapons and skills, but do so without talking about the `ordinary' lives of most urbanindigenous people. School students meet and hear of those ancient and importantaspects of traditional culture -- but forget that many indigenous Australians have beendenied citizenship and continue to live in poverty and without access to basic social andeconomic rights (clean water, adequate health care) which are generally taken forgranted. Further, the exclusion of children with disabilities from mainstream schools,which is tantamount to the exclusion of those children from the community, continues. Asignificant aspect of human rights education is to teach the value of all people -- and thebest way of showing that a person is valued is by including him or her. The Australiancommunity must be constructed in such a way that the lived experience of women,people with disabilities, indigenous and NESB Australians and people of all sexualorientations are valued and included.

As Wills and Leipoldt write:

Because our culture has not valued certain human difference, there has beenan overwhelming history of segregating and congregating people who sharenegatively valued difference. Our test of valuing someone is simple: if youvalue them ... you will seek to be with them. Equally simple is the test of notvaluing someone: if you hold them of little or no value ... you will seek to beseparate from them ... physically and socially.[9]


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For most Australians, the process of exclusion is subtle and not a matter of governmentpolicy. However, for children with disabilities the exclusion is justified and enforcedthrough government policies and practices.[10] The evidence is that not only are studentswith disabilities who are segregated denied the opportunity to learn accepted socialbehaviour and to gain the acceptance of their peers, but that for those in segregatedenvironments there are generally low educational expectations and high degrees ofabuse. There is evidence, also, of the benefits to those children without disabilities wholearn together with children with disabilities. They learn to adapt their behaviour -- thespeed of their speech, the rules of the game -- to accommodate the needs of others.They learn to provide support, to extend friendship and to accept those who are differentfrom themselves. They learn that disability itself is socially constructed -- and that thechild in their class is just a child like themselves albeit a child who functions differently,speaks a different language, celebrates different festivals or who has experience ofdifferent sexual relationships.

With respect to including children with disabilities, it is not enough to place the child in asegregated unit in a mainstream school or to place a child in a class without theappropriate support for active inclusion. Inclusive education involves a commitment ofresources and, more importantly, a commitment of will.[11] No one wants to be educatedin a hostile environment, and given the likelihood that the child who has experiencedsegregation will have low self-esteem, the transition from a `special' school tomainstream needs to be carefully planned and the teachers and community appropriatelyprepared. A means of overcoming prejudice must be found, however, as fear ofdifference is not a sufficient basis for the denial of rights.

The principle of inclusive schooling as a human rights education strategy applies to allcommunities in which there is segregation, whatever the motivation for that exclusion.The manner of promoting an inclusive education community will vary from situation tosituation, as the barriers to full participation will be different for each group. The challengefor human rights educators is to find the balance which respects the equality of alllearners and which accepts and accommodates difference, in order to diminish it to thepoint of irrelevance.[12]

(b) Developing an Inclusive School Curriculum

Formal human rights education can be delivered through a range of vehicles. Onevehicle is the dedicated course on human rights. Another is the inclusion of a unit of workon the topic of human rights in a course primarily concerned with other content. This hasbeen the approach of multicultural curricula, where multicultural ideas have been simplygrafted on to the main concerns and existing values of the society such as possessiveindividualism, occupational mobility and status attainment.[13] McCarthy reports researchwhich has found that this sort of education is counterproductive, and that the racistattitudes of students may become entrenched by units of work which make no attempt toengage with questions about power relationships between different groups in thecommunity including questions about the role participants in the educational processhave in producing as well as consuming education.[14]

A better vehicle is the incidental teaching of human rights content by adopting a culturallyand socially inclusive curriculum. An inclusive curriculum is one in which the content ofsubjects presents positive and contemporary images of people from a diversity of cultural


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and linguistic backgrounds, including differences in ability, and which links texts andmaterials to the lived experience of the members of each group.[15] An inclusivecurriculum must also address the question as to why there has been exclusion of certaingroups, and must work to validate voices which have been silenced or made invisiblethrough the power of other people's discourses.[16] One example of an inclusivecurriculum can be found in the legal ethics course, Law, Lawyers and Society, taught atthe University of NSW. Students are taught that good lawyering goes beyond knowingthe rules governing the profession to include appropriate working with all clients.Students undertake workshops on cross-cultural communication -- which focuses onindigenous clients in a range of real-life situations: as victims; as accused; as powerfulparties in mining negotiations -- and on dealing with clients with disabilities: involvingconsideration of accommodations required for the full range of disabilities (physical,intellectual, psychiatric).

Three other Australian projects which exemplify this third approach are worthy ofmention: the Anti-racism Policy of the South Australian Department of Education; theproject on gender-sensitive teaching resources for compulsory subjects in law schools;and the human rights and literature project.

South Australian Education Department Anti-racism Policy

Taking seriously the terms of the Equal Opportunity Act (1984), the South AustralianEducation Department developed an Anti-racism Policy in 1990 as the framework foreliminating racism from the working and learning environments for which it is responsible.Writing in Volume 1 of the Australian Journal of Human Rights, Efrosini Stefanou-Haagoutlined the need for such a policy:

Racist discrimination within the education context can take many forms --less attention in class, put-downs, playing down the successes andachievements of particular groups or individuals while highlighting anynegative aspects of behaviour or performance, undermining some students'career aspirations by making discouraging remarks and refusing to recogniseand respond appropriately to learning needs are but some examples ... At theheart of discriminatory behaviour is the notion that certain groups are lessentitled to succeed in our society than are others. It is the experience of manyAboriginal people and those from language backgrounds other than Englishthat discrimination intensifies after they have proved they have skills, talentsand abilities which compare favourably with those of people from thedominant group. There is an assumption that people from these groupsshould know their place. That place is not in positions of leadership orinfluence. Individuals from these groups who achieve success are oftenviewed with suspicion; it is assumed and often stated that they `got there'through special provisions or by foul means.[17]

The Anti-racism Policy was designed in consultation with students, parents, teachers andcommunity groups, and included Aboriginal, non-English speaking and English speakingbackground people in metropolitan and country locations, and in school and communitysettings. The Anti-racism Policy makes racism incompatible with good education, andmakes it clear that racism is unacceptable in places of work and learning. Further, thePolicy includes grievance procedures with respect to racist discrimination and


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harassment to be put into place at all schools and worksites. Significant time and moneyhas been spent on training principals of schools as well as many staff. The curriculumhas been reviewed and a second language requirement introduced. This success of thepolicy has depended on a committed Department, but has taken the existence ofantiracist legislation to be crucial. The law has not only had a significant educationalimpact on public values, but has also given weight to the decision of the Department tointroduce profound changes in the mode of education delivered to children in SouthAustralia.

Gender Bias in Law School Courses[18]

The second example of developing an inclusive curriculum is a project funded by theAustralian Government Department of Employment, Education and Training for thedevelopment of materials to address gender bias in subjects taught in Australian lawschools. The materials are designed to be used as teaching models within corecurriculum areas and to insert perspectives and materials at specific points of the subjectwithout affecting the whole curriculum. Using the principle of affirmative action throughthe textbook[19] the materials draw on the writings of women and on trial judgmentswhich often give facts to provide context and do not over-represent wealthy parties.Teaching resources have been developed in the areas of work, violence and citizenship,and relate to subjects including civil procedure, torts, contracts, property, company, trustsand equity, criminal law, and family law. Similar resources on other areas of human rightswould be of great value to human rights educators.

Human rights and literature project

The last project worthy of mention is the human rights and literature project -- a grandtitle for the move by a number of authors of children's literature to deal specifically withhuman rights issues, and by school authorities to include these works on the schoolEnglish curriculum. Three examples come to mind. These are a book about a youngrefugee from Bosnia, Christine Mattingly's No Guns for Asmir;[20] Blabbermouth[21] byMorris Gleitzman, the hilarious tale of a young woman with a significant communicationimpairment -- the person with the problem is her father; and Dianne Kidd's moving storyof a boy's search for identity and the impact on this search of his discovery of familymembers being part of the stolen generation of Aboriginal children -- The Fat and JuicyPlace.[22] Each of these books provides the opportunity to engage in significant teachingabout human rights to children already sensitised to the problems by the empathy theyfeel for the central characters of the books.

(c) Adopting Inclusive Teaching Strategies

It is crucial that, beyond appropriately constructing the community and the curriculum, theteaching method adopted by the teacher models the value of treating all learners withequal concern and respect. Co-operative learning is one such inclusive teaching strategy-- that is, it is designed to meet the learning needs of all participants in the class,independent of ability (or dis-ability), race, gender, or language. The principles ofco-operative learning are fundamentally tied to the responsibility of all teachers topromote equality in both theory and practice. It requires teachers to design learningactivities which teach social skills such as listening, valuing all members of the group,sharing, being supportive, mediating and negotiating outcomes as a central aspect of the


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educational process, and for the teachers themselves to demonstrate such skills.[23]This teaching methodology is significant because, as Dr Mara Sapon-Shevin fromSyracuse University argues, there is a transformative potential for co-operative learningstrategies.[24] Reviewing Sleeter and Grant's five approaches to multicultural education,Sapon-Shevin contrasts transformative teaching with an ameliorative programme. Whilethe latter approach to race relations would aim to teach children to appreciate and acceptindividual difference by teaching about different racial and ethnic groups and theimportance of accepting or tolerating difference, transformative teaching would bespecifically anti-racist and would attempt to teach an understanding of the nature ofprejudice and discrimination, and to teach about the social construction of difference --that some differences are valued and others stigmatised.

In writing about the importance of adopting co-operative learning strategies, \tSapon-Shevin comments:

I am interested in teaching children about cooperation so that they can, forexample, be more thoughtful about an economic system that accepts a highunemployment rate as `normal', stratifies workers by race and class, andoften focuses on production rather than workers. I am interested in havingstudents make connections between what they have learnt by functioning inco-operative classrooms and broader workplace issues such as childcare forworking parents, adequate health benefits and medical care, and the benefitsof decentralised and democratic (not top-down) managerial structures ... I amcommitted to education that is transformative, which allows students to movebeyond the conditions of their own world to envision and enact a differentvision.[25] ... Attending to the content of co-operative learning means explicitteaching about the concepts of competition, co-operation, discrimination,sexism, racism, prejudice and oppression. As such, our co-operative learningcurriculum must be closely linked to a broader curricular agenda related tonotions of equality and justice... Co-operative lessons cannot be whollysuccessful if they embody sexism, racism or ageism within theirframework.[26]

This needs to be true for all educational strategies if human rights education is to besuccessful in bringing about the moral and social precept of equality which it strives toachieve.

Australian Journal of Human Rights

The Australian Journal of Human Rights was established in 1994 to enhance thepossibility of human rights education in Australia and the Asia-Pacific. Members of theAustralian Human Rights Centre, based at the University of NSW, considered that it wasessential that there be a forum for discussing the basis of human rights, both theoreticallyand in application. The journal aims to provide material which can form the basis ofhuman rights education. It further aims to enhance analysis of the concept of humanrights, to assess the success of measures designed to implement human rights, and todetail abuses of human rights. The journal is intended to develop a community of humanrights scholars who come from a wide variety of disciplines, and to develop human rightsdiscourse in the region. The journal publishes both thematic and general issues, and has


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already allowed for systematic discussion of racial hatred; children's rights; human rightsand the administration of criminal justice; and social and economic rights.

This issue of the Australian Journal of Human Rights contains material on a broad rangeof topics. The `Casenotes, Commentaries and Recent Development' section of thejournal is dedicated to providing information about developments in human rights bothdomestically and with regard to international law. In this issue we begin a regular featureon human rights issues for Australians at the United Nations, to be edited by Jane Hearnand Kate Eastman. This will record details of communications with United Nationsbodies, including individual complaints and official government reports. Dorne Bonifacehas provided details about the proposed changes to the Human Rights and EqualOpportunities Commission (HREOC) and critically assesses the developments inAustralia's primary human rights institution. Elizabeth Evatt analyses the concept ofdenunciation from a treaty in the context of the action of the Democratic People'sRepublic of Korea with respect to the International Covenant on Civil and Political Rights(ICCPR). Sarah Pritchard and Jane Corpuz-Brock's submission to the Human RightsSub-Committee of the Joint Standing Committee on Foreign Affairs, Defence and Tradeprovides insight into the dialogue on human rights between Australia and states in theAsia-Pacific region. This background material is designed as a compliment to thesubstantive discussion of the transformative potential of human rights.

Di Otto investigates the inherent contradiction in the jurisprudence of human rights, whicharises as a result of the aspiration to equality and the classification of international humanrights into a hierarchy of generations. She suggests that a post-structural analysis ofhuman rights is valuable in freeing the conversation about human rights from the liberalpositivist trap of dualism and power politics. Taking seriously the principle of equalityrequires us to recognise the transformational potential of human rights which involves areordering of power relations at both a local and a global level. Otto argues that it ispossible to rise above the oppositional approach to rights, which is inherent in the debateabout cultural relativism, and which orders and prioritises civil and political rights oversocial and economic rights and which discounts the significance of collective rights aswell as the rights of women, children, people with disabilities and indigenous people.

Damien Miller addresses a different theoretical issue which has concerned many of the`left' who are desirous of achieving social justice but are sceptical about the possibility ofachieving justice or equality through an appeal to rights. As an indigenous Australian,Miller is very aware of the false promise and hollow offering of citizenship anddeclarations of formal equality. However, like Americans of colour, Miller argues that itwould be a strategic mistake to abandon rights, even if the critique of the Critical LegalStudies movement is accepted. For indigenous Australians it is important to breathe lifeinto the concept of rights and to embrace rights both in their descriptive andtransformative shells. As Patricia Williams has commented, rights taste too good in themouths of those who are just beginning to be able to take advantage of them to abandonthem for any other strategy.[27] Miller looks at the new use of rights being adopted byindigenous communities and considers this to be an important step towards full inclusionand participation of indigenous people in Australian society.

Darren Dick focuses on the complex question of the relationship between native title andnative rights which may arise independently of or concomitantly with a claim of nativetitle. He looks at the belated recognition of indigenous land rights by the Australian courts


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in Mabo (No 2)[28] and Wik[29] and compares the Australian jurisprudence with thedevelopment of indigenous rights in Canada. This is important not only because acomparative approach provides an interesting basis for analysis, but also because thecourts in each jurisdiction has kept an eye on the other. The differences between theapproaches of the different courts is instructive, particularly in regard to the developmentof distinct concepts of aboriginal rights and aboriginal title developed in Canada. Thebroader approach to human rights taken in the Canadian courts is evident in respect tothe greater voice given to the testimony of indigenous people themselves, rather than`expert' anthropologists, and in the willingness of the courts to be creative in respect ofthe question of extinguishment of title. Dick concludes that, as a result of adoptingCanadian jurisprudence, the Australian courts have moved forward and have begun togive primary weight to indigenous oral evidence, and that the idea of non-site specificland rights is beginning to gain acceptance. However, Australian courts are more readythan their Canadian counterparts to find that native title has been extinguished.

Gino Naldi takes us from the domestic sphere to an analysis of the international lawregarding self-determination in the context of the East Timor case.[30] Naldi is critical ofthe International Court of Justice (ICJ), particularly in its failure to accept that a decisionabout a treaty made by the Australian government was a decision about Australia. Infinding that the Court had no jurisdiction to hear the matter, international law has left thepeople of East Timor in limbo. Adopting a perspective on human rights as activeprecedents designed to empower oppressed groups, Naldi argues that a broaderconceptualisation of the idea of self-determination, reflecting the free and genuineexpressions of the will of the people, is in order. He argues that the practical effect of theICJ's opinion is the failure to respect the right to self-determination of the people of EastTimor and that `the international community is under an obligation to recognise as illegaland invalid Indonesia's presence in East Timor and that an obligation also exists requiringit to refrain from lending any support or assistance to Indonesia with reference to itspresence in East Timor'.

The international community not only has obligations with respect to the collective rightsof minority groups, it also has a duty to take action to prevent genocide and to ensurethat abusive regimes are brought to justice. Kirsty Sangster considers the strategy ofusing Truth Commissions to reconcile a people for wrongs perpetrated against them. Inthe aftermath of apartheid, the people of South Africa are struggling to come to termswith the horrible reality of the significant abuses of power by the previous regime.Sangster asks us to consider whether truth-telling is therapeutic and whether it is asatisfactory response to the many cases of political death, torture, rape, and overtdiscrimination.

Christine Parker brings us back from the extremes of one regime to the subtleties ofanother. Parker's concern with sexual harassment focuses on the ability of publicregulation to be effective in the light of corporate governance. She investigates theinterplay between public policy and public decision-making and corporate reality. Parkeragain looks to the transformative possibilities for human rights to change workplacecultures rather than simply focus on the resolution of individual complaints. She calls onHREOC to be given more power to regulate proposed mandatory action plans or codesof conduct with respect to corporate behaviour. She reminds us that to achieve realchange in this area it is necessary to link private law model liability mechanisms to publiclaw duties. She concludes that `public rights do not transform private hearts and minds


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are brittle levers of change', but that the test of successful human rights law can only bemeasured in terms of the resultant social change.

Conclusion

Human rights education is education directed at the fundamental values informingsociety. Habermas, in discussing the question as to why we learn, isolated three cognitiveinterests of human beings.[31] At the baseline there is an interest in control of theenvironment. The interest in control extends to technical, empirical and conventionalknowledge -- the ability to replicate a determined pattern of behaviour or to determine the`agreed right answer'. The second cognitive interest Habermas says that we have inlearning is understanding. This is a level of learning involving judgment, for it involves theability to negotiate meanings and, by way of interpretive knowledge, to come to acommon solution to a difficult problem. At the highest level of cognitive engagement,Habermas says, comes freedom. Freedom is a result of self-reflective and criticalknowledge, knowledge which allows an appreciation of how that knowledge isconstructed. Education should be designed to promote freedom -- for each learner, andfor all members of the community.

Clarence Dias, at a Workshop for human rights educators from the Asia-Pacific Region,suggested that the success of human rights education should not be judged by its threatto empower the disempowered, but from the potential of the education to transform thevalues of the powerful.[32] While work in the field of the sociology of education hasshown that educational institutions have the potential to replicate inequalities, such asinequalities relating to race, gender or (dis)ability, educational institutions also have aconcomitant transformative potential. Jack Mezirow has argued that `transformativelearning is not a private affair involving information processing; it is interactive andintersubjective from start to finish.'[33] Education is not a neutral experience at any pointwhere it is encountered. The international human rights regime provides the backdrop foreducational institutions to redefine their mission in terms of the community's moral vision.Recognising that knowledge is socially produced, deeply imbued with human interest,and implicated in the social relations within the community, human rights education is ameans of ensuring that learners engage in `critical self-reflection, which results in thereformulation of a meaning perspective to allow a more inclusive, discriminating, andintegrative understanding of one's experience. Learning includes acting on theseinsights'.[34]

This volume of the Australian Journal of Human Rights investigates many of the issuesrelating to the meaning of human rights, and rights generally, and to the notion ofcitizenship as a signifier of acceptance and full participation in the life of the community. Itlooks, too, at the relationship between public ideals and private governance; at the role ofthe state in preventing genocide; and at the value of international human rights law in thepromotion of equality. The Australian Journal of Human Rights takes a role in theconversation about equality and justice, and attempts to establish a discourse by whichsociety can be transformed.

With the decline of religion as the basis for teaching moral precepts, international law canbe seen to encapsulate the modern Ten Commandments -- the Universal Declaration ofHuman Rights. Like the Biblical source of moral law, where the rules specified go beyond


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the ten to 613 commandments and are complemented and interpreted by a great body oforal law, much of which is found in written texts, \tthe international law code of morality iscontained in a range of international \ttreaties including the International Covenant onCivil and Political Rights, and the International Covenant on Economic, Social andCultural Rights, as well as in `soft law' such as United Nations General AssemblyResolutions, international jurisprudence and commonly accepted rules known as juscogens.[35] This body of law, reflected in the Bills of Rights which form part of the law ofalmost every nation of the world except Australia, reflects the moral aspiration of equalityby which there arises \tan entitlement of all people to be treated with equal concern andrespect, to the provision of health, housing and food which befit all humans, and tocultural and religious integrity.[36] If this can be accepted as a `transformative morality'we will have come a long way towards addressing power differentials, empowering thedisempowered and recognising the need to restructure and reform society into an`equality mould'.

[*] Senior Lecturer, Faculty of Law, UNSW. An earlier version of this paper was presentedto the UN Workshop on Human Rights Education in the Asia-Pacific Region. I would liketo thank Matthew Zagor for his invaluable research assistance, and the Law Foundationof NSW for supporting this project.

[1] General Assembly and Economic and Social Council: A/49/261/Add.1; E/110/Add.114th November 1994.

[2] Also significant is the age and educational level of the learners: see Wolf-WassermanM and Hutchinson Teaching Human Dignity: Social Change Lessons for Every Teacher,1978.

[3] On issues relating to the rights of people with disabilities see Jones M and Marks L ADisability Diversability and Legal Change Kluwer, Dordrecht (forthcoming 1999); Swain J,Finkelstein V, French S and Oliver M (eds) Disabling Barriers -- Enabling EnvironmentsSage, London (1993); Morris J (ed) Encounters with Strangers: Feminism and DisabilityThe Women's Press, London (1996); Brown H and Smith H Normalisation Routledge,London (1992).

[4] As reported in (1996) 3 Australian Journal of Human Rights 121.

[5] Post R `Community and the 1st Amendment'(1997) 29 Arizona State Law Journal 437at 479.

[6] S Benn `Human Rights and Human Nature' in Tay, AE-S (ed) Teaching Human Rights,AGPS Canberra 1981.

[7] See Asmal K, Asmal L and Roberts RS Reconciliation Through Truth Creda Press,Cape Town 1996.

[8] Brown v Board of Education 347 US 438 (1954).

[9] Including Children who Challenge Us Most (1993) PLEDG Project.

[10] See L v Minister for Education for the State of Queensland [1996] EOC 92-78; P v


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Director-General Department of Education [1996] EOC 92-795; and Cook S and Slee R`Struggling With the Fabric of Disablement: Picking Up the threads of the Law andEducation' in Jones M and Marks LA. Despite the optimism of many people withdisabilities, it would appear that the current activity surrounding the introduction ofeducation standards under the Disability Discrimination Act 1992 is not likely to changethis situation.

[11] See Pij l S J, Meijer C J W and Hegarty S Inclusive Education: A Global Agenda,Routledge, London 1997.

[12] See Minow M Making All the Difference, Cornell University Press, Ithaca, 1990.

[13] McCarthy C `Multicultural Discourses and Curriculum Reform: A Critical Perspective'(1980) 44 Educational Theory 81.

[14] McCarthy C ibid at 94; see generally Kanpol B and McLaren P (eds) CriticalMulticulturalism: Uncommon Voices in a Common Struggle, Bergin and Garvey,Westpoint, 1995.

[15] See Connell R W, Making the Difference: Schools, Families and Social Division,Allen and Unwin, Sydney 1982. Giroux Border Crossing: Cultural Workers and thePolitics of Education Routledge, New York, 1992.

[16] Shapiro H Between Capitalism and Democracy: Educational Policy and the Crisis ofthe Welfare State, Bergin and Garvey, New York 1990.

[17] Stefanou-Haag S `Anti-Racism: From Legislation to Education' in (1994) 1 AustralianJournal of Human Rights 185 at 189.

[18] The resources on Work and Violence were prepared by Reg Graycar and JennyMorgan; that on Gender and Citizenship by Sandra Berns, Paula Baron and MarciaNeave.

[19] See Mari Matsuda. See also Frug M J Postmodern Legal Feminism Routledge NewYork, 1992.

[20] Mattingly C No Guns for Asmir, Puffin, Ringwood 1993.

[21] Gleitzman, M Blabbermouth Piper, Sydney, 1992.

[22] Kidd D The Fat & Juicy Place Angus & Robinson, Sydney (1992).

[23] Kagan S Co-operative Learning 1996; Johnson DW Learning Together and Alone:Co-operative, Competitive and Individualistic Learning 4th ed, Allyn and Bacon, Boston,1994; Stahl R, \t`Co-operative Learning' (1994) The Social Educator 41-3; McGrath Hand Noble T Different Kids, Same Classroom Longman Sydney 1993.

[24] Sapon-Shevin M `Co-operative Learning, Co-operative Visions' in (1991) HolisticEducation Review 25.

[25] Ibid at 27.


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[26] Ibid at 28.

[27] Williams P The Alchemy of Race and Rights (1993) Virago Press, London p 164.

[28] Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1.

[29] Wik Peoples and Thayorre People v Queensland (1996) 187 CLR 1.

[30] East Timor (Portugal v Australia) [1995] ICJ Reports, 90.

[31] Habermas J Knowledge and Human Interests Heineman, London, 1972.

[32] Dias C `Towards Liberation, Distraction or Deconscientisation: Tasks for the UNDecade of Human Rights Education in the Asia-Pacific Region' (1996) 3 AustralianJournal of Human Rights 9 at 12.

[33] Mezirow J Fostering Critical reflection in Adulthood: A Guide to Transformative andEmancipatory Learning Jossey-Bass, San Francisco, 1990.

[34] Mezirow J ibid Preface xvi.

[35] For the text of international instruments relating to human rights see The UnitedNations and Human Rights 1945-1995 UN Blue Book Series, Vol VII United Nations1995. For a discussion of the sources of international law see Steiner H J and Alston PInternational Human Rights in Context Clarendon Press, Oxford, 1996.

[36] There is, of course, some dispute about the universality of these principles. It isargued that they are oppressive of certain groups and amount to a form of imperialismknown as cultural relativism. It is argued that the hierarchies of rights which refer to civiland political rights as first generation and collective and indigenous rights as fourthgeneration is objectionable as a mere reflection of capitalism. It is not my intention toenter into these debates here, but simply to note that such disputes occur whenever newmoral codes attempt to displace existing ones.

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