# 045SYMPHONY OF DECOLONIZATION:

THIRD WORLD & HUMAN RIGHTS DISCOURSESilence from and about the subject was the order of the day.

Some of the silences were broken, and some were maintainedBy authors who lived with and within the policing strategies.

What I am interested in are the strategies for breaking it.Toni Morrison Playing in the Dark

INTRODUCTION

Since the genesis of the human race, the division on the basis of power has always existed. The quest for subjugation of the weaker by the powerful is an incessant phenomenon with ultimate result being – ‘silence’. It is ‘silence’ that has become an obsession of the powerful and concession for the weak. The human history is replete with plethora of ‘acts’ - of resistance and revolts, which have always been suppressed and yes- ‘silenced’. But such resistances against power only resulted in reinstating yet another form of power.

In general, one may classify the resistances in two broad phases1. The first phase marked the resistance against the powerful, the rulers, and the aggressors or to put in briefly- the ‘Colonizers’ resulting in political freedom.2 But colonialism didn’t simply end with

1 See Benita Parry, “Resistance Theory/Theorizing Resistance or Two cheers for Nativism” Contemporary Postcolonial Theory-A Reader, Padmini Mongia ed., Oxford University Press, Delhi, 1997, at p.84; Stephen Slemon, “Unsettling the Empire: Resistance Theory for the Second World”, Contemporary Postcolonial Theory-A Reader, Padmini Mongia ed., Oxford University Press, Delhi, 1997, at p.72.2 For example, when United Nations was established in 1945, the organization had 51 member nations. By 1998, this figure had risen to 185. Most of this growth was attributable to new states in Asia and Africa. See Geir Lundestad, East, West, North, South, 4th ed., Oxford University Press, New York, 1999.

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a formal political freedom3. It percolated down to the minds of the rulers and the ruled. Ashis Nandy defines colonialism as a ‘shared culture which may not always begin with the establishment of alien rule in a society and end with the departure of the alien rulers from the colony.’4 Thus, today we are witnessing the second phase of resistance- a phase “which started with the proposition that colonialism is first of all matters of consciousness and needs to be defeated ultimately in the minds of men”5, where resistance against colonization goes into the psychological realm, challenging its moral foundations -as its only then that ‘cultural continuity and cultural baggage of colonialism’ could be demystified. As Fanon argues that if these silences are not resisted, they will produce ‘individuals without an anchor, without horizon, colorless, stateless, and rootless- a race of angels’. 6

It is this psychological resistance7 we should try to decipher today from within and the outside. “Perhaps that which begins in the minds of men must also end in the minds of men8”. This paper is an

3 For further discussion on this phase of decolonization, See Raymond F.Betts in Decolonization, Routledge, London, 1998.; P.J.Cain & A.G.Hopkins, British Imperialism-Crisis and Deconstruction(1914-1990), Longman, New York, 1993; Nihal Perera, Decolonizing Ceylon, Oxford University Press, New Delhi, 1999.4 Ashis Nandy also points out that the colonized were treated as blank slate where the moral codes- an inferior version of maturity, less productive and ethical, and badly contaminated by the playful, irresponsible and spontaneous aspects of human nature were written. He compares it to an ‘adult’ who bears the responsibility to ‘save’ the child from a state of unrepentant, reprobate sinfulness through proper socialization, and help the child grow towards a Calvinist ideal of adulthood and maturity. 5 Biodun Jeyifo, “The Nature of Things: Arrested Decolonization and Critical Theory”, Contemporary Postcolonial Theory-A Reader, Padmini Mongia ed., Oxford University Press, Delhi, 1997, at p. 158.6 Stuart Hall, “Cultural Identity and Diaspora”, Contemporary Postcolonial Theory-A Reader, Padmini Mongia ed., Oxford University Press, Delhi, 1997at p. 110.7 Octavo Mannoni, Frantz Fanon and Alber Memmi have in their works identified the contours of psychological contours of colonialism. 8 Ashis Nandy, The Intimate Enemy, Oxford University Press, New Delhi, 1983, p. 3.

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attempt to compose a symphony - sobering and inspiring, a symphony of ‘decolonization’9, not with an objective to appease anyone, but to make our presence felt to every soul around the world with a cautionary approach, not to venerate a particular culture resulting in a protective enclosure. Edward Said in his remarkable piece of work Culture & Imperialism writes -“in our wish to make ourselves heard, we tend very often to forget that the world is a crowded place, and that if everyone were to insist on the radical purity or priority of one’s own voice, all we would have would be the awful din of unending strife, and a bloody political mess…”10 Thus, one needs to tread with caution, given the fiercely contested notions of the what, how and why of the subject. It can be identified with politics of identity, a politics of position, which has no absolute guarantee in an unproblematic, transcendental ‘law of origin’.11 It is this process of demystification, with the help of vectors of similarity and continuity and the vector of difference and rupture - that one would decipher the presence of colonialism in many sectors of life today.

This paper focuses on specific area (sector) of Human Rights law in which colonialism has perennially resonating effect. It is an attempt to generate the vocabulary to signify and understand the resistances against the Human Rights law. As Professor Anthony Anghie has emphasized about the nineteenth century positivism:

9 For extensive discussion on decolonization and postcolonial theory See Contemporary Postcolonial Theory-A Reader, Padmini Mongia ed., Oxford University Press, Delhi, 1997; The Decolonization of Imangination, Jan N.Pieterse & Bhikhu Parekh ed., Oxford University Press, Delhi, 1997.Also See Bernard S.Cohn, Colonialism and its forms of Knowedlge, Oxford University Press, Delhi, 1997.10 Edward Said, Culture and Imperialism, Vintage Publication, London, 1994, at p.23. Also See Edward Said, Orientalism, Pantheon Books, New York, 1978.11 Stuart Hall, “Cultural Identity and Diaspora”, Contemporary Postcolonial Theory-A Reader, Padmini Mongia ed., Oxford University Press, Delhi, 1997, p. 115.

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The violence of positivist language in relation to non-European peoples is hard to overlook. Positivists developed an elaborate vocabulary for denigrating these peoples, presenting them as suitable objects for conquest, and legitimizing the most extreme violence against them, all in the furtherance of the civilizing mission- the discharge of the white man’s burden”.12

The history of colonialism has left an indelible mark in the discourses between the societies of former colonizers and colonized.13

It has created powerful symbols and a vocabulary for intervention in postcolonial states that Western movements have found difficult to replace, precisely because these symbols and this vocabulary can be so effective in mobilizing support for campaigns against oppression in postcolonial states.14 However, when international movements, such as the human rights project, make use of this vocabulary, they come dangerously close to repeating the mistakes of the colonialist past and provide fodder for criticisms from postcolonial activists.15

The Part-I of this paper offers a brief understanding of the psychological colonization at work. It builds upon the works of Ashis Nandy and Ranajit Guha16, taking India as example to understand the colonization of mind. The Part-II identifies the presence of hegemony, colonialist ideology and power in the human rights discourse. It looks into the dialectics of Human Rights and the decolonized (third world countries), in a process to develop theory of resistance which would

12 Antony Anghie, “Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law”, 40 Harv. Int'l L.J. 1(1999) at p. 17. Also See Antony Anghie, “Civilization and Commerce: The Concept of Governance in Historical Perspective”, 45 Vill. L. Rev. 887(2000).13 “Saving Amina Lawal: Human Rights Symbolism and the Dangers of Colonialism”, 117 Harv. L. Rev. 2365(2004). Also See Barbara Stark, “After/Word(s): Violations of Human Dignity and Postmodern International Law”, 27 Yale J. Int'l L. 315(2002); Sally Engle Merry, “Law & Colonialism”, 25 Law & Soc'y Rev. 889(1991); Teemu Ruskola, “Legal Orientalism”, 101 Mich. L. Rev. 179(2002).14 Id.15 Id.16 See Ranajit Guha, Dominance without Hegemony, Oxford University Press, Delhi, 1998.

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enable the international lawyers to at least partially respond to it. It advocates the multicultural approach17 towards the human rights so as to reflect a genuinely universal character and consensus as proposed by the international institutions18. In the Part-III, author concludes with a suggestion to follow the multicultural approach so as to achieve genuine ‘universal’ standards as proposed by the present human rights discourse.

IThe Indian Subcontinent has been a battle ground for centuries.

It has witnessed many invasions and years of bloody battles coupled with mass plunder of its wealth. India has been the juncture point where the many cultural tributaries meet. These many centuries of foreign rule leaves one skeptical about the existence of our own culture and values. As per Edward Said, “the culture is a sort of theatre where various political and ideological causes engage one

17 As per Makau Mutua, multiculturalism is a politics of recognition. Recognition is directed to others both in regard to an essential sameness with oneself, a common humanity which is the basis of equality, and in regard to difference, the distinctive identities of individuals and groups. See Makau Mutua, “Politics and Human Rights: An Essential Symbiosis”, The Role of Law in International Politics, Michael Byers ed., Oxford University Press, New York, 2000; “Savages, Victims & Saviors: A metaphor of Human Rights”, 42 Harv. Int'l L.J. 201(2001). For further discussion on Multiculturalism and Culture, See Zygmunt Bauman, Culture as Praxis, Sage Publications, New Delhi, 1999; Reading into Cultural Studies, Martin Barker & Anne Beezer ed., Routledge, London, 1992; Multiculturalism- A Critical Reader; Daved Theo Goldberg ed., Blackwell Publishers, Oxford, 1994; Clifford Geertz, The Interpretation of Cultures, Fontana Press, New York, 1973; Joel S.Kahn, Culture, Multiculture, Postculture, Sage Publications, New Delhi, 1995; Gurol Irzik & Sibel Irzik, “Which Multiculturalism”, 11 Science & Education 393(2002); Jocelyne Cesari, “Global Multiculturalism: The challenge of Heterogenity”, 27 Alternatives 5(2002).18 Antony Anghie has extensively analyzed the link between colonialism and International institutions in “Colonialism and the Birth of International Institutions: Sovereignty, Economy, and the Mandate System of the League of Nations5 (2002); Also See Antony Anghie, “”Time Present and Time Past: Globalisation, International Financial Institutions, and the Third World, 32 N.Y.U.J. Int’l L. & Pol. 243(2000).

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another.”19 Due to India’s extra ordinary cultural diversity, there has always been involvement of all the cultures with one another, as a result none is single and pure and all are hybrid and extraordinarily differentiated. It is the space where the creolisations and assimilations and syncretism were negotiated.

With advent of the ‘Raj’, there was a serious intermix and juxtaposition of the British Culture and the diverse cultures in India. The so called traditional order in India was presented with a secular hierarchical model which seemed to open new vistas for the - ‘exploited’. This was the first psychological pull- a pull towards more ‘just and equal world’.

Due to the psychological pull acting on the both sides, the original cultural priorities were altered and juxtaposed.(See above) There was change in priorities in both sides bringing to the centre the subcultures previously recessive or subordinate in the two confronting cultures20 and in parallel removing the subcultures present in the centre.21 Both cultures were significantly affected.22 In the colonial culture, process of ‘identification with the aggressor’ bound the rulers 19 Edward Said, Culture and Imperialism, Vintage Publication, London, 1994, at p.23.20 Culture is the combination and the combining of these dimensions in a way that generated shared meaning. It is, again drawing on Baumann, an “ever-changing complex whole through which people engage in the continual process of accounting, in a mutually meaningful manner, for what they do, say, and might think. See Gerd Baumann, Contesting Culture Discourses of Identity in Multi-Ethnic London, Cambridge University Press, Cambridge, 1996. For discussion on Law & Culture, See Robin West, “Disciplines, Subjectivity and Law”, The Fate of Law, Austin Sarat & Thomas R.Kearns eds., University of Michigan Press, 1993.21 Here, the author is presuming interaction between two cultures. It can also be viewed as interaction between one culture (A) and many other cultures B,C,D etc.

Culture A

Culture B

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Psychological pull between two cultures

and the ruled in an unbreakable dyadic relationship. Many Indians saw their salvation in becoming more like the British, in friendship or in enmity.

Ranajit Guha in Dominance without Hegemony and its Historiography23 proposes the power configuration model to understand the dialectics of change among different cultures and reason of change among them. According to him, it is within the framework of Dominance(D)/Subordination(S) model(as below), that one can understand the historical articulation of power as well as hegemony all its institutional, modal and discursive aspects.24

CD P

POWER(D/S) C*

S

22 As O.Mannoni puts it, “The Problem of colonization did not only concern the overseas countries. The process of colonization- which is in any case far from complete in those countries- is also under way at home, in our schools, in female demands for equality, in the education of small children and in many other fields….If certain cultures prove capable of destroying others…..the destructive forces brought forth by these cultures also act internally……”23 Subaltern Studies VI, Ranajit Guha ed., Oxford India Paperbacks, 1989, p. 229.24 While these two terms, in their interaction, give power its substance and form, each of them, in its own turn, is determined and indeed constituted by a pair of interacting elements and indeed constituted by a pair of interacting elements- D by Coercion (C) and Persuasion(P); and S by Collaboration(C*) and Resistance(R). However, the mutual implications of D and S has a Universal validity for all power relations informed by them, whereas that of C and P or of C* and R is true only under given conditions; c.f. Subaltern Studies VI, Ranajit Guha ed., Oxford India Paperbacks, 1989, p. 230.

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R

He identifies the presence of hegemony25 within the universalist assumptions of liberal ideology which is taken for granted in both the colonialist and nationalist interpretations of the Indian past to understand the historiography. According to him, hegemony26 is simply a function of power in a concrete historical relation informed necessarily and irreducibly both by force and by consent.

Thus, the colonized were induced to accept the new social norms, creating a culture where the colonized were tempted to fight their rulers within the psychological limits set by the latter. The Indian subcontinent proved to be a blank slate to the colonizers, where they wrote their moral codes obsessed with protestant ethic of saving the ‘child’ from state of unrepentant, reprobate sinfulness through proper socialization. Further, the philosophy of ‘utilitarianism’ influenced the ruler and the ruled. The promise of ‘just and equal world’ catalyzed the assimilation of ‘another’ culture deep down in mindset of the people.

The western educated scholars like Raja Rammohan Roy and others formed the progressive section, questioning the fundamental values and customs prevailing during the time and vehemently opposing their acceptance. They juxtaposed the customs and practices with the western secular customs vindicating the latter. With gift of gab and use of media, these scholars went a long way for acceptance of ‘just and equal world’ as existing in the west. Thus, many old customary practices were abolished. The western education and literature was introduced, bringing in new school of thoughts, which

25 Hegemony stands for a condition of Dominance(D), such that, in the organic composition of the latter, Persuasion(P) outweighs Coercion(C). 26 As Guha believes that it has been dual function of liberal historiography to change the world and to maintain it in its current state.

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were quickly accepted and adopted to criticize the traditional or Indian school of thought.

As J.M.Coetzee rightly puts it “ The new men of empire are the ones who believe in fresh starts, new chapters, new pages; I struggle on with the old story, hoping that before it is finished it will reveal to me why it was that I thought it worth the trouble”. Hence, old stories, chapters and pages were closed and are today forgotten beyond remembrance. The need of the hour today is to look back at our ‘own’ stories- our own school of thought and values which certainly is not nostalgia mindset but a voyage in search of ‘self’. In the process, one must remember that “Any new theory must recognize that imperialism was as much a function of its victims’ collaboration or non-collaboration- of their indigenous politics, as it was of European expansion…..Nor [without the voluntary or enforced co-operation of their governing elites and] without indigenous collaboration, when the time came for it, could Europeans have conquered and ruled their non-European empires. From the outset the rule was resisted; just as continuously native mediation was needed to avert resistance or hold it down”. Its only from the “outside the universe of dominance which provides the critique with its object, indeed from another and historically antagonistic universe that one could oppose a genuinely uncompromising critique to a ruling culture”.27

IIThat is the partial tragedy of resistance, that it must to a certain extent work to

recover forms already established or at least influenced or infiltrated by the culture of empire.”28

27 Supra. note 23 at p. 220.28 Edward Said, Culture & Imperialism.

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The Third World resistances29 against the human rights discourse have been silenced, displaced and made invisible in the historiography. Balakrishnan Rajgopal30 in his work International Law from Below31 identifies at least two ways for such displacement of the third world resistances:

1. Liberal Processualism: This version is primarily offered by scholars such as Louis Sohn, Louis Henkin, Oscar Schachter etc. who balances uneasily between their desire to root human rights in universal sovereign consent and their wish to retain a genealogy that is traced back to the west. 32 Makau wa Mutua

29 It speaks of the Third World not as a bloc, but as a distinctive voice, or, more accurately, as a chorus of voices that blend, though not always harmoniously, in attempting to make heard a common set of concerns. The term "Third World" has a number of different usages. In a purely descriptive sense, "Third World" is frequently used interchangeably with other terms such as "less-developed," "developing," or "underdeveloped" countries, and, increasingly, "the South." The referent are the countries of Africa, Asia, and Latin America that have traditionally been classified as lagging behind the "West," "North," "First World" or "developed countries" in terms of economic growth and indicators of economic prosperity. Building on this quasi-geographical rubric, another layer is frequently added--that these countries are the marginalized within international society. The coining of the term "Third World" itself is generally credited to French demographer Albert Sauvy, who attempted to draw a historical analogy to the "Tiers Etat" within French society--the marginalized and oppressed among the population--in an article titled Three Worlds, One Planet, in the Paris newspaper l'Observateur on August 14, 1952. It is important to bear in mind that the term was not used in a derogatory sense by Sauvy himself. In a book published posthumously, he expressed concern that the translation of "Tiers Monde" into "Third World" involved a loss of the historical resonance of the phrase, as "tiers" became "troisieme." See ALBERT SAUVY, LA TERRE ET LES HOMMES: LE MONDE OU IL VA, LE MONDE D'OU IL VIENT 41 (1990); c.f. Karin Mickelson, “Rhetoric & Rage: Third World Voices in International Legal Discourse”, 16 Wis. Int'l L.J. 353(1998).30 See No-Hyoung Park, “Third World as an International Legal System”, 7 B.C. Third World L.J. 37(1997); Karin Mickelson, “Rhetoric & Rage: Third World Voices in International Legal Discourse”, 16 Wis. Int'l L.J. 353(1998).31 Cambridge University Press, Cambridge, 2003.32 For example, L.Henkin states “International human rights derive from natural rights theories and systems, harking back through English, American and French Constitutionalism to John Locke etc. and earlier natural rights and natural law theory.

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identifies Henkin as a ‘constitutionalist’33 who believe in the omnipotence of human rights by elevating them to a near-mythical, almost biblical plateau. Henkin’s boldly in Age of Rights states that:

Ours is the Age of rights. Human rights are the idea of our time, the only political-moral idea that has received universal acceptance. The universal declaration of Human Rights, adopted by the United Nations General Assembly in 1948, has been approved by virtually all government representing all societies. Human rights are enshrined in the constitutions of virtually every one of today’s 170 states- old states and new; religious, secular, and atheist; western and eastern; democratic, authoritarian and totalitarian; market economy, socialist, and mixed; rich and poor, developed, developing, and less developed. Human Rights is the subject of numerous international agreements, the daily grist of the mills of international politics, and a bone of continuing contention among

superpowers.34 This celebratory passage reflects how the universality of the acceptance of the idea of human rights sets it apart from all other ideas and gives it a most distinctive position in modern times -dismissing every cultural and ideological diversity arguments against it.35

2. Liberal Substantivism: This version is offered by scholars such as Jack Donnelly, Maurice Caranston and Rhoda Howard etc. who believe that non-western societies had no conception of human rights whatsoever as Human rights arose in response to challenges faced by the western societies. As Jack Donnelly puts it

33 ‘Constitutionalist’ or ‘conceptualizers’ regard, or would like to regard, the human rights corpus as a constitutional framework: a set of norms, ideals, and principles –moral, philosophical, legal and even cultural- which cohere to determine the fundamental character of a state and its society.34 Louis Henkin, Age of Rights, Columbia University Press, New York, 1990.35 See Brett Bowden, “In the Name of Progress and Peace: The ‘Standard of Civilization’ and the Universalization Project”, 29 Alternatives 43(2004).

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Human rights represent a distinctive set of social practices, tied to particular notions of human dignity that initially arose in modern west in response to the social and political changes produced by modern states and modern capitalist market economies.36

Donnelly argues that the fact that same social forces – powerful states and free markets are penetrating and changing social fabric of Asian societies today even more than in past, Human rights should be more readily adapted by the Asian countries so as to protect the vulnerable groups and dispossessed individuals in Asia despite their having a western origin.

Thus, the above two versions shows the way in hegemony and ignorance exists in the present human rights discourse failing to give due regards to the third world existence. They build upon the ideology of liberalism representing it to be ‘spiritual parent of and inspiration of many human rights treaties.37 It is further evident from the 1993 World Conference on Human Rights38 where the universality, objectivity and non-selectivity of the Human rights issues were declared to be beyond question.39 These declarations intend to show how colonialism no longer haunts the human rights discourse.40

However, human rights discourse contains many elements which are directly descended from colonial ideology and practices.. Let us look

36 “Human Rights & Asian Values: A Defense of ‘Western Universalism’”, The East Asian Challenge for Human Rights, Joanne R.Bauer & Daniel A. Bell eds., Cambridge University Press, U.S.A, 1999.37 Henry Steiner, “Political Participation as a Human Rights”, 1 Harvard Human Rights Year Book 77.38www.unhchr.ch/huridocda/huridoca.nsf/Symbol)/A.CONF.157.23.En?OpenDocument.39 “The World Conference on Human Rights reaffirms the solemn commitment of all States to fulfill their obligations to promote universal respect for, and observance and protection of, all human rights and fundamental freedoms for all in accordance with the Charter of the United Nations, other instruments relating to human rights, and international law. The universal nature of these rights and freedoms is beyond question.”40 This is based on the idea that ‘new’ international law of human rights had decisively transcended the ‘old’ international law of sovereignty which had been tainted by, among others, colonialism.

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at the following examples to identify the elements of colonial ideology, hegemony and power in the human rights discourse:1. In the year 1948 when United Nations was in the process of drafting the Universal Declaration41, most of the African and Asian states were absent from the UN as they were European Colonies. The non-western views were largely unrepresented because the so called- Third world at the United Nations was composed mainly of Latin American countries, whose dominant world-view was European.(The UN had only 51 original members; of these, 20 were from Latin America and only eight from Asia and three from Africa.)Further, it is interesting to look back at the First and Second Hague Peace Conferences of 1899 and 1907, the participants to which took upon themselves the enormous task of formulating the laws of war and establishing a regime for the pacific settlement of international disputes.42 The countries which took part in the first Hague Peace conference numbered a scant 24 and almost all of them were from Europe or America. The number of nations participating in the Second Conference was greater, numbering 44 however, none were from Africa and, aside from Japan, and only four were from Asia.43

Moreover, many articles in the UDHR echo or reproduce many provisions of the United States constitution and the jurisprudence of the Western European states such as France and United Kingdom.44

The UDHR under Article 5 prohibits ‘cruel, inhuman or degrading treatment or punishment’, the US constitution prohibits the 41 Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217 A(III), U.N.GAOR, 3d Sess.(Resolutions, part 1), at 71, U.N. Doc. A/810(1948).42 Wang Tieya, “The Third World and International Law”, The Structure and Process of International Law: Essays in Legal Philosophy – Docrtine and Theory, Doughlas Johnson & R. Macdonalt eds., Martime Publishers, 1983 at p.957.43 Id.44 Makau Mutua, “Politics and Human Rights: An Essential Symbiosis”, The Role of Law in International Politics, Michael Byers ed., Oxford University Press, New York, 2000 at p. 155.

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infliction of ‘cruel and unusual punishment’. Other parallel includes due process protections45, rights of speech46, and privacy.47 2. Doctrine of Emergency: The doctrine of emergency has turned out to be the Achilles’ heel of the human rights doctrinal corpus. In a society subject to the rule of law, a state of emergency proclaimed under existing law enables the government to resort to measures of an exceptional and temporary nature in order to protect the essential fabric of that society.48 Art. 4 of the International Covenant on Civil and Political Rights (ICCPR), Art. 15 of the European Convention on Human Rights (ECHR) and Art. 27 of the American Convention on Human Rights (ACHR) specify the circumstances under which, in a state of emergency, a state may derogate from its obligations under the relevant instrument. However, the situation on the basis of which the state may derogate under the instruments is different. For example, the ECHR and the ACHR refer to ‘a time of war or other emergency’, while ICCPR refers to ‘time of public emergency’ and makes no reference to ‘war’.

However, if one goes back to the drafting stage of ICCPR, one would see that it was the Great Britain which introduced it at the drafting stage. Balakrishnan Rajgopal finds the reason for the particular concept of emergency introduced under Art.4 emanating from the Britain’s anti-colonial wars since 1940s and 1950s. The ‘emergencies’ were used to suppress radical anti-colonialist movements thereby allowing the colonizers to deal with the mass resistances in their own countries during emergencies. Rajgopal identifies fear of masses and control over deteriorating situation as

45 US Constitution, amendments V, VI; UDHR Art 7-11.46 US Constitution, amendment I; UDHR Art.19.47 US Constitution, amendment IV; UDHR Art. 12.48 Nihal Jayawickrama, The Judicial Application of Human Rights Law, Cambridge University Press, Cambridge, 2002, at p.202. Also See The Int’l Covenant on Civil and Political Rights- Cases, Materials & Commentary, Joseph, Schultz and Castan eds., Oxford University Press, New York, 2000.

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two main reasons which led Britain to adopt emergency as form of ‘total rule’.49 The doctrine of emergency was means towards an idiom of order which replaced the idiom of conquest.50 (Both the metropolitan culture of the colonizers and the pre-colonial political traditions of the colonized played significant role in establishment of idiom of order51.) The bureaucracy of the colonizers was armed with powers which could and often did muzzle free speech and censor the press, curb the individual’s freedom of movement and deny the right of assembly to the people- all in name of ‘order’. (The idiom of order helped to mobilize labour for plantations owned by Europeans.) Thus, the idiom of order became a distinctive feature of colonialism primarily in one respect: that is, for example, in colonial India, it was allowed to intrude again and again into many such areas of the life of the people as would be firmly kept out of bounds in metropolitan Britain.

Also if one looks at the Constitution of the some of the prominent western countries of France, there is no provision for non-derogable rights52, Canadian Constitution permitting derogation even in non-emergency situation; the United States Constitution doesn’t have any provision dealing with non-derogable rights etc.53

Further, the usage of term ‘emergency’ creates a legal void wherein neither the rules relating to the conduct of war nor human rights are applicable. While at least some legal protections may apply during civil wards- such as those mentioned in common Art.3 of the 1949 Geneva Conventions- emergencies essentially provide a carte blanche to governments to violate the rights of their citizens54.

49 Balakrishnan Rajagopal, International Law from Below, Cambridge University Press, Cambridge, 2003 at p.175.50 Supra. note 23 at p.232.51 Supra. note 23 at p. 233.52 Art.16 allowing the President to take whatever measures.53 http://www.hrcr.org/chart/index.html54 Supra. note 48 at p. 181.

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Moreover, there have been differences and double standards in application of the doctrine of emergency. For example, the European Court evolved the doctrine of ‘margin of appreciation’ giving latitude to the states (European) in exercising there judgment with regards to determination of emergency allowing them strong benefit of the doubt in this regard while the Committee of Human Rights has in Landinelli Silva and other ‘Uruguayan’ 55cases followed a more strict requirement of burden of proof stopping far before developing strong jurisprudence on this issue.

Thus, the colonial policies that were invented as ad hoc responses to mass resistance, have thus been made a ‘natural’ part of the international legal corpus.56 It is strange that culture of emergency is so ‘naturalized’, so deeply rooted among the governing elites that it is hard to see it being shaken fundamentally soon.

3. Resonance of Hegemony: As per Ranajit Guha’s power model as discussed in Part-I, “hegemony stands for condition of Dominance(D), such that, in the organic composition of the latter, Persuasion(P) outweighs Coercion(C)”. Since the Second World War, the United Nations, non-governmental organisations, and scholarly writers have engaged in the process of persuasion by creating a thicket of norms, processes and institutions which purport to promote and protect human rights. Though the United Nations Charter in Article 2(1) proclaims that it is “based on the principle of sovereign equality of all its members”57 and that in 1979 the General Assembly reinforced that ideal by passing a resolution58 entitled “Inadmissibility of the Policy of 55 The Int’l Covenant on Civil and Political Rights- Cases, Materials & Commentary, Joseph, Schultz and Castan eds., Oxford University Press, New York, 2000. 56 Balakrishnan Rajagopal, International Law from Below, Cambridge University Press, Cambridge, 2003 at p.183.57 For some observers, the permanent members of the Security Council constitute a collective hegemony within the United Nations.58 G.A.Res. 34/103(Dec. 14, 1979)

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Hegemonism in International relations”(which the United states and three other members opposed).inequalities of power exist in the present international law discourse(Power has been central subject of study ever since the work of Hans Morgenthau59).60

Further, hegemony resonates in UDHR which associates human rights with “the highest aspirations” of the common people, and proclaims itself to be a “common standard for all”. The institutions like United Nations are also furthering the universal implementation of the human rights on the basis of common standard for all as evident from the 1993 Vienna Declaration.61

Many of the scholars from the Third world follows multicultural approach to reform the human rights regime so as to make it more universal but they are simply labeled as ‘cultural agnostics’ by the so called ‘universalist’ who themselves operate within a specific cultural space and distinct historical tradition62. (The Human Rights scholarship being entirely dominated by lawyers in the United States of America did not concern itself with culture and this was reflected in leading text book.63 Even as human rights began increasingly to be on the global agenda from the mid-1970s, leading international lawyers 59 Hans Morgenthau, Politics Among Nations: The Struggle for Power and Peace, 5th ed.,Scientific Book Agency, Calcutta, 1972.60 For a historical discussion on Hegemonic International Law See Detlev F.Vagts, “Hegemonic International Law”, 95 A.J.I.L 843(2001); Jose E.Alvarez, “Do Liberal States behave Better? A critique of Slaughter’s Liberal Theory”, 12 Eur.J.Int’l.L.183(2001); Paul James, “Post dependency? Third world in era of Globalism and Late-capitalism?”, 22 Alternatives 205(1997),61 It was declared that “efforts of the United Nations system towards the universal respect for, and observance of, human rights and fundamental freedoms for all, contribute to the stability and well-being necessary for peaceful and friendly relations among nations, and to improved conditions for peace and security as well as social and economic development, in conformity with the Charter of the United Nations”.62 Makau Mutua, “Politics and Human Rights: An Essential Symbiosis”, The Role of Law in International Politics, Michael Byers ed., Oxford University Press, New York, 2000 at p. 153.63Balakrishnan Rajagopal, International Law from Below, Cambridge University Press, Cambridge, 2003 at p.203.

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did not engage with the issue of culture) As per Makau Mutua, cultural agnostics refer to academics and policy-makers who see the potential dynamism of the human rights corpus as an opportunity for the creation of a multicultural corpus of human rights.64

Authors like Abdullahi An-Nai’im argues for an ‘internal dialogue’ so as not to challenge the universality of human rights, but does so indirectly by insisting that the theory and practice of human rights ought to be developed by dialogue internal to cultures.65 For example, Art.20 of the Constitution of Islamic Republic of Iran states that all citizens enjoy all human rights equally “in conformity with Islamic criteria” as to do otherwise would be to abandon their religion, which cannot reasonably be required by the international human rights community specifically under Art.18 of the Universal Declaration which guarantees right to freedom of religion.66 He argues that secular approach to human rights subordinates the Muslim religion to non-Islamic criteria.67 This is further evident from Art.1(b)68 and Art.2569 of the Cairo Declaration on Human Rights in Islam, 1990.70

Inoue Tatsuo in his seminal paper Critical Perspectives on the “Asian Values” Debate71 identifies the spell of orientalism in the

64 Supra. note 58 at p. 156.65 Michael Freeman, “Problem of Secularism in Human Rights Theory”, 26 H.R.Q. 375(2004).66 Id.67 Michael Freeman, “The Problem of Secularism in Human Rights Theory”, 26 H.R.Q 375(2004).68 “All human beings are God’s subjects, and the most loved by him are those who are most useful to the rest of His subjects, and no one has superiority over another except on the basis of piety and good deeds.”69 “The Islamic Shari'ah is the only source of reference for the explanation or clarification to any of the articles of this Declaration.”70 http://www.religlaw.org/interdocs/docs/cairohrislam1990.htm.71 Inoue Tatsuo, “Critical Perspectives on the ‘Asian Values’ Debate”, The East Asian Challenge for Human Rights, Joanne R.Bauer & Daniel A. Bell eds., Cambridge University Press, U.S.A, 1999 at p.37.

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present human rights discourse. He presents the west-centrism’s logical structure as follows:P1: Western societies played a leading role in the historical development of democracy and human rights.P2: Irrespective of their historical pedigree, democracy and human rights have a universal scope in terms of their normative validity, so they must also be realized in AsiaP3: Despite its recent remarkable economic growth, Asian political structure is dominated by pre-modern, traditional culture, which is essentially incompatible with western principles, so it lacks the endogenous will and competence to develop democracy and human rights. The Hegelian perception of Asian a historical stagnancy remains true of Asian politics, and its political stagnation contributes to making its savage capitalism undisciplined and unruly.P4: Therefore, Western leadership and interference are indispensable to the establishment of democracy and human rights in Asia.72

Tatsuo then identifies two anti-west-centric perspectives- critique of Value Dominance and critique of epistemic hegemony.73

The former rejects P4 by denying P2 while the latter does so by denying P3 as it ascribes to Asia a cultural essence incompatible with the values of modernity. . The critique of epistemic hegemony rejects the epistemic matrix that differentiated Asia from the West by disclosing its hegemonic nature. It deconstructs the assumption that only the west, which has developed its tradition of Oriental studies through the colonization of Asia, has the intellectual competence and resources to understand and conceptualize this essence of Asia and thereby to lead it.74

IIICONCLUSION

72 Ibid. at p. 38.73 Id.74 Id.

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The Third world scholars by deploying multicultural approach and methodology have thrown upon human rights discourse a net of interpretation through which both the subject and the objects of experience are made possible in the first place. Foucault’s interpretation of knowledge and power as one unit is important in understanding third world discourses. It is not enough to simply generate third world discourses but the same has to be coupled with power.75 For Foucault,“[t]here can be no possible exercise of power without a certain economy of discourses of truth which operates through and on the basis of this association. We are subjected to the production of truth through power and

we cannot excise power except through the production of truth.”76 Power is also the ability to make certain objects to rise in that space to become possible objects of knowledge regarding which true or false things can be said thereby rupturing the continued reluctance of the western human rights scholars to reform, reconstruct and multiculturalize the human rights discourse. If the Human rights discourse has to transform into an effective legal discourse, it has to address and engage with the third world concerns. As Foucault states:“ How could one know the law and truly experience it, how could one force it to come into view, to exercise it powers clearly, to speak, without provoking it, without pursuing its powers clearly, to speak, without provoking it, without pursuing it into its recesses, without resolutely going ever farther

into the outside into which it is always receding?” 77

But, the human rights movement seems to be closing all doors, turning away other cultures, and impose itself in its current form and structure upon the world. As per Marti Koskenniemi in The Gentle 75 For example, the group of 77 was formed by Third World states as a forum for articulating problems and solutions to the international political and economic order, which they considered unjust and unfair.76 Y.Kazmi, “Foucault’s Genealogy and teaching Multiculturalism as a Subversive Activity”, 16 Studies in Philosophy and Education 331(1997).77 Michel Foucault, “Maurice Blanchot: The Thought from Outside”, trans. Brian Massumi, in Foucault & Blanchot Foucault/Blanchot, Zone Books, New York, 1987 at p.34.

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Civilizer of Nations78 “… maybe the time of synthesis is not yet here.

Maybe it is now a time to listen, and to learn.” Perhaps what seems to western scholars as ‘night time of

love’(to use the evocative phrase of the Greek philosopher castoriadis79) third world scholars need to transform it into a ‘life time of love’. We all know that ‘ignorance is bliss’, but not when it obliterates the ‘self’ and ‘Reality’. Let’s begin a voyage in recovery of ‘self’. I would conclude with a few lines from Yeat’s poem:

It’s long since I beganTo call up to the eyes

This wise and simple manAll day I’d look in the face

What I had hoped ‘twould beTo write for my own face

And the Reality.

78 Cambridge University Press, Cambridge, 2002, p.516.79 Veena Das, “Subaltern as Perspective”, Subaltern Studies VI, Ranajit Guha ed., Oxford India Paperbacks, 1989, p. 315.

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