History, Human Rights, and Globalization [PDF]

Journal of Religious Ethics, Inc

History, Human Rights, and Globalization Author(s): Sumner B. Twiss Source: The Journal of Religious Ethics, Vol. 32, No. 1 (Spring, 2004), pp. 39-70 Published by: on behalf of Journal of Religious Ethics, Inc Stable URL: http://www.jstor.org/stable/40018154 . Accessed: 09/05/2013 11:29 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp

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HISTORY,HUMAN RIGHTS, AND GLOBALIZATION SumnerB. Twiss ABSTRACT An illustrative comparisonof human rights in 1948 and the contemporary period, attempting to gauge the impact of globalization on changes in the content of human rights (e.g., collective rights, women's rights, right to a healthy environment), major abusers and guarantors of human rights (e.g., state actors, transnational corporations,social movements), and alternative justifications of human rights (e.g., pragmatic agreement, moral intuitionism, overlappingconsensus, cross-culturaldialogue). key WORDS: human rights, globalization, collective rights, women'srights, human rights and the environment,human rights abusers and guarantors, human rightsjustification

1. Introductionand Background This essay is a self-conscious expansion of my earlier JRE article on "MoralGroundsand Plural Cultures: Interpreting Human Rights in the International Community"(Twiss 1998).l The goal is to incorporate a historical perspective from the period 1946-48, when the Universal Declaration of Human Rights [UDHR] was drafted, debated, and adopted, and to compare this period with recent developments in human rights, with a particular eye on how these may be affected by processes of globalization. This comparison,I believe, will providetwo "takes"or snapshots on human rights developments,permitting us to appreciateboth continuities and changes over time. My principal question is this: How has globalization affected human rights thinking in the international arena? I intend to pursue this question with respect to three broadissues: changes in the conception and content of human rights; changes with regard to the major players in both abusing and guaranteeing human rights; and changes in the justification of human rights. All three of these issues are so complex and nuanced that I cannot hope to be exhaustive in my treatment of them. I can, however,be usefully illustrative and provocative,by 1Earlier versions of the present essay were presented at Bucknell University and John Carroll University. I am particularly indebted to my colleagues Harlan Beckley, John Kelsay,and Paul Lauritzen for their critical comments on an earlier draft.

JRE 32.1:39-70. © 2004 Journalof ReligiousEthics, Inc.

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discussing the following topics, respectively, for each of the three issues. With regardto changing conceptionsof human rights and new emphases, I will focus on individual versus collective human rights, women'shuman rights, and the connection between the right to health and the environment. In regard to changes in abusers and guarantors of human rights, I will focus on the roles of state actors, transnational corporations,and new social movements. And with respect to changes in the justification of human rights, I will focus on the alternatives of pragmatic agreement, moral intuitionism, overlapping consensus, and cross-cultural dialogue. In order to investigate these issues and topics responsibly, it is important to at least stipulate the terms of reference concerning both human rights and globalization. Nothing I say in these stipulations will be particularly original or new, but for the sake of clarity some groundclearing is necessary. Speaking broadly, there are two firmly accepted types of human rights norms identified in international treaties and conventions- civil-politicaland socio-economic- both of which represent potential claims of individual persons against their respective states. Civil-political rights include two sub-types: norms regarding physical and civil security (e.g., prohibitions of torture, slavery, inhumane punishment, arbitrary arrest; guarantees of legal personhood and equality before the law) and norms regarding civil and political empowerment (e.g., freedom of thought, assembly, voluntary association; guarantees of effective political participation in one's society). Socio-economicrights also include two sub-types:norms regarding the provision of goods meeting basic personal and social needs (e.g., nutrition, shelter, health care, education) and norms regarding goods meeting basic economic needs (e.g., work and fair wages, adequate living standard, a social security net). There is also a third broadclass of human rights now acknowledged in international agreements but less settled and more contested than the preceding types. These I call the collective-developmentalrights of peoples and groups held against their respective states, and they include two sub-types: the self-determination of whole peoples (e.g., to their political status and economic, social, and cultural development) and certain special rights and protections for ethnic and religious minorities (e.g., to the enjoyment of their cultures, languages, and religions). Since these rights are so new and hotly contested, I will be discussing them below. The meaning of globalization is also contestable territory- by historians, economists, political and cultural theorists- but rather than entering into this debate I will simply say how I am using the term, as informed by my reading of pertinent literature (see, e.g., Held and McGrew2000; Seita 1997; Cerny 1997). By globalization I mean the multidimensional and interactive processes of economic, political, and cultural change across the world resulting in increased social interconnectedness as well as opportunities for social confrontationamong peoples. As observed by

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many, these processes are not themselves new, but their current acceleration and intensification- assisted by technologicaladvances in communication and transport and by economic and trade interdependenciesappear unprecedented in human history (see, e.g., Held et al. 2000). In connection with this conception of globalization, human rights scholars and social activists often deploy a heuristic developed by Richard Falk a decade ago: globalization-from-aboveversus globalization-from-below (Falk 1993, 39-40; see also Brecher, Brown, and Cutler 1993, ix-xxvi). The first refers to economic and political collaboration among big powers such as state actors and financial and corporate agents, and the second refers to social, political, and cultural collaborationamong local, national, and international agencies (e.g., non-governmental organizations, United Nations organs) interested in advancing or changing the quality of civil societies across the world, perhaps even forming a global civil society. Contraryto some human rights scholars and activists who restrict human rights to globalization-from-below,I believe that human rights and their development are relevant to both of these perspectives or levels of globalization (see, e.g., McCorquodaleand Fairbrother1999, 739). With these terms of discussion now in place, I turn to our first venue for considering globalization's impact on human rights- namely, changes in conception and content.

2. Changes in Conception, Content, and Emphasis As indicated earlier, I will be focusing on three illustrative topics: individual versus collective human rights, women'shuman rights, and the rights to health and a healthy environment. I regard the first topic as a systemic development leading to a whole new category of human rights, the second as a new emphasis and application to a marginalized class of persons, and the third as a refinement to a previously recognizedhuman right. All three developments- in one way or another- have been significantly assisted by globalization processes operating in concert with, respectively, the political coming-of-ageof minority ethnic populations, women's movements for liberation and development, and the environmental movement. 2.1 Individual versus collective human rights It is well-known that virtually all of the human rights identified in the UDHR systematically addressed and redressed the dehumanizing techniques and conditions imposed by Nazi Germany on Jews and other marginalized populations prior to and during World War II (see, e.g., Morsink 1999, 36-91). The framers of the declaration in large part identified a range of bulwarks intended to prevent uncivilized and barbaric state behavior such as stripping citizens of civil and legal protections,

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subjecting them to inhumane practices, and denying them the basic necessities for survival. Certainly well-known but less discussed is the fact that human rights at that period were quite self-consciously conceived as representing the priority interests of individual human beings needing to be guaranteed by states on behalf of their respective citizens. This was an unusual move in one important respect: it downplayed- indeed went against- nascent human rights developments in the earlier part of the century in the aftermath of WorldWar I. That earlier period was rife with national and international treaties- following the recrafting of certain national boundaries in Europe- aimed at protecting the rights of ethnic and religious minorities conceived as groups vulnerable to possible systematic oppression by the dominant majorities of the states in which they were located (see, e.g., Lauren 1998, 92-98). The question is what accounts for the change in directionin the 1940s, and the answer is not difficult to discern. As framed succinctly by one recent commentator, "The lesson of WWII was that emphasizing minorities and highlighting their differences through special protections encouraged groups to define themselves in opposition to others," and "Nazi racial doctrines appeared to be the inevitable result of such a course"(Oestreich 1999, 113). That is, the very identification of groups as bearers of rights encourages oppositional conflict among them. So the framers of the UDHR followed another course, emphasizing the rights of individuals to essential civil, political, social, and economic conditions as well as their equality in such protections, with express avoidance of contributing to the power of groups. Tobe fair to the data, various delegates to the Third Committee(which discussed and debated the draft of the UDHR) expressed concern about special protections for minority ethnic groups, but these concerns were answered by the blanket assumption that protecting individuals generally would also adequately protect the members of minority groups. In addition to the Third Committee discussion of the issue, there was also an eloquent voice for group rights in the concurrent UNESCO symposium on human rights. A. P. Elkin, an Australian anthropologist specializing in Aboriginal cultures, specifically argued for the importance of recognizing,in addition to individual human rights, the rights of Aboriginal peoples to community land, economicdevelopment, political selfdetermination, and a secure place in dominant societies. He even went so far as to suggest the controversialnotion that "thecommunitymust have rights as against the individual, but in the interests of all its members" (Elkin 1948, 249). This suggestion, of course, explicitly raised a problem of group versus individual in addition to the oppositional group conflict that the UDHR framers were anxious to avoid. That said, what has all this history to do with human rights developments in more recent years? I want to suggest quite pointedly that due

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in large part to globalization processes, the rights of peoples, minorities, and related communities has resurfaced, constituting a new moment and challenge in the development of human rights in the contemporary world. Following the demise of colonialism in the 1950s and 1960s, the International Covenantsregarding civil-politicaland socio-economicand cultural rights (1966; in force, 1975)- influenced by representatives of developing countries formerly under colonial rule- specifically feature in their initial articles the right of peoples to self-determination, including the right to determine their own political status and to pursue their own paths to economic, social, and cultural development (Brownlie and Goodwin-Gill,172-73, 182-83). This right to development acquired further articulation in the 1986 Declaration on the Right of Development, which explicitly recognized development as "a comprehensive economic, social, cultural, and political process, which aims at the constant improvementof the well-being of the entire population"and mandated that the right to development of peoples includes "full sovereignty over all their natural wealth and resources"(Brownlie and Goodwin2002, 84850). In order to appreciate the challenge that this right to development represents to the international human rights community,as well as the role of globalization, it will help to focus on one significant and poignant example of its application to a certain class of people, namely, the indigenous peoples of the world and their efforts to bring into forcea declaration regarding their collective rights to self-determination and development: the Draft Declaration of Indigenous Peoples'Rights (1994; pending UN action). I focus on this draft declaration because it represents a response to a centuries-long and continuing situation of oppression which until the past decade has been largely ignored by the world, because it shows how the processes of globalization- both from-above and from-beloware operative, and because it brings into relief the challenge presented by a new type of rights claim. Let me begin by first identifying these peoples and their past history before going on to discuss globalization processes and the declaration itself (see also Twiss 2000, 167-71). Indigenous peoples are those communities, groups, or nations often referred to as tribal peoples or First peoples which inhabited lands later colonized by others. They are prevalent throughout the world- e.g., Asia, Africa,the Americas, the Pacific Islands, Europe- and they number in the hundreds, representing in excess of 400 million persons. Their worldviews and practices connect them socially, economically,and spiritually to certain natural environments or bioregional locations crucial to their identity and survival as distinct peoples. Although found in diverse areas of the world, these peoples have been subjected to a similar history of oppression, involving, for example, military conquest bordering on genocide, dispossession from and exploitation of their lands, forced relocation, deprivation of their

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traditional means of subsistence and livelihood, removal of their children and denial of traditional cultural education, interference with their religious practices, discrimination in the dominant surrounding society, and marginalization in political processes bearing on their well-being. This history, then, is a history of the systematic destruction and oppression of these peoples- their traditions, cultures, and very identities as tightly bonded communities with long-standing and deep ties to ancestral lands and customs. Given this history of oppression, what has changed more recently? The answer I think is that the processes of globalization-from-above state actors or of the intentional collaboration not) (whether involving and agents of capital formation (e.g., International Monetary Fund, World Bank, transnational corporations)- have instituted policies and procedures which have so accelerated the destruction of these peoples, their environments, their economies, and their cultures that they have been brought to the brink of annihilation (e.g., "Peoplesof the Forest"in Central Africa, Niger Delta peoples, tribal peoples in Amazonia, among others; see, e.g., the case studies reprinted in Gearon2002). ThirdWorld states in particular have been lured by the prospect of trickle-down effects of capital investment and productionby transnational corporations in their societies into closing their eyes to (or even collaboratingin) the oppression, environmental destruction, and near-total marginalization of these peoples from the sources of their existence (see, e.g., the case studies in Brecher, Childs, and Cutler 1993; Center for Economic and Social Rights 1999). At the same time, processes of globalization-frombelow- including communications,information,and travel technologies, and NGOs assisted by these technologies- have made it possible for these peoples to cometogether to share and diagnose their commonplight and to develop strategies of resistance (see, e.g., Ewen 1994). One such strategy, over a decade in the making, is that within the UN context these peoples articulated in one voice the claim that they have collective human interests and rights in preserving their ethnic and cultural identities, their ancestral territories, and their continuation as distinctive communities with their own unique social institutions and practices, including language, education, economy,governance, and cultural and religious expression. They have voiced this claim in the aforementioned draft declaration that identifies conditions crucial to their continued survival as distinct peoples. Analogous to the UDHR, the articles of this declaration address almost point by point the oppressive techniques and conditions imposed on them by others. At the same time, however, there is an important disanalogy with the UDHR precisely in the fact that many of the rights claimed are collective rather than individual, for example: collective right to self-determination; collective right to maintain their own distinct political, social, cultural characteristics and legal

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systems; full guarantee against genocide and ethnocide, including prohibitions of removal of their children, dispossession of their lands, and any form of population transfer; collective right to practice and revitalize their cultural traditions and to practice their spiritual traditions and have access in privacyto their religious sites; collective right to establish and control their educational systems; collective right to participate in decision-makingin matters affecting their lives and destinies; collective right to restitution of their lands and resources where possible and to fair compensation where not; and collective right to self-governance in their internal affairs; among others (Brownlie and Goodwin-Gill2002, 72-81). These collective rights claims have caused some consternation in the international communityboth among those (many) states having indigenous populations within their borders and among human rights advocates themselves (see, e.g., Barsh 1996). I am particularly interested in the reaction of the latter group because they are rearticulating a new worry about group rights in addition to the one that lay behind the UDHR's strategic choice to protect the priority interests of individual persons rather than groups. Put bluntly, the new worry is: would not the recognition of collective human rights eventually result in oppression by indigenous communities of their own members? For example, in the case of patriarchally organized indigenous communities, would not recognizing the collective rights to self-governanceand social, economic,and cultural development likely result in social and economicdiscrimination against women in the society (see Twiss et al. 1994, 54-59)? By the same token, however,people of conscience are also rightly concernedabout the very survival and existence of these peoples and groups,because it seems that collectivities of this sort have a legitimate interest shared by their members in maintaining their cultural and social identities as the loci for their sense of meaning and self-worth in the world. I want, however briefly or inadequately, to address this issue of potential internal oppression, because I think that the problem has been overdrawnboth by states hostile to empoweringtheir indigenous peoples and, more importantly,by human rights advocates sincerely concerned about protecting human well-being. The first thing to be said is that the language of the draft declaration, while explicitly using the phrase "collectiveright," often correlates this language with individual rights as in "individual and collective right" to x (e.g., individual and collective right to maintain and develop their distinct identity, individual and collective right to not be subjected to ethnocide and cultural genocide). This sort of formulation strongly suggests the declaration is construing collective rights of the group as the intersections of shared individual interests which are being asserted against those outside the group who would deny or otherwise interfere with those shared interests. Thus, the

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declarationis not claiming that the groupitself has some sort of ultimate moral standing vis-a-vis its members, but rather that its members have shared individual interests that they are collectively asserting against those who would seek to harm, control, or otherwise undermine them (I owe this clarifying distinction to Jones 1999, 82-95). That is to say, the declaration does not appear to be invoking some sort of super corporate conception of the group as a rights-holder having a moral standing independent of its individual members in such a manner that it could assert its right against the shared interests of individual members.Rather, a collective right might be better construed as a long-term class-action claim by its members against the world (I adapt this conceptualization from McDonald1992, 134, although contraryto his dismissal of it).2 This is not to say, however, that individual members cannot disagree about the nature of their shared interests. To return to our patriarchal example, many of the women members arguably do not share interests in maintaining patriarchy resulting in social and economicdiscrimination, and so internal dissension is still possible, but note also that such patriarchy and discrimination would not be seen as being in the shared interests of all members, as would, by contrast, be the shared interests of all in the avoidance of genocide and ethnocide. The possibility of internal dissension brings me to make a second observation about the declaration. The indigenous peoples themselves are aware of such possible internal problems,and in their declaration they address the issue quite pointedly by explicitly guaranteeing all individual human rights in international law and then periodicallyin the declaration introducing special systematic guarantees for gender equality ("allrights . . . are equally guaranteed to male and female indigenous members"),economicnon-discrimination ("individualshave the right not to be subjectedto any discriminatoryconditions of labor, employment, or salary"), and the protection of certain vulnerable sub-populations within their societies (e.g., elders, women, children, the disabled) (see Twiss et al. 1994, 58-59). That is to say, it appears that the declaration is ascribing priority to individual human rights and equal treatment in order to mitigate and settle internal tensions and claims. Put another way, the indigenous peoples themselves have decided to modify their traditional practices and cultures in a way that conformswith standard human rights protections,while at the same time asserting that it is their collective right to do so. 2 Here it seems appropriateto note that this collective or class-action conceptiondoes not make as strong a claim as some advocatesof grouprights might want to make- namely, a morecorporateconceptionon behalf of the groupitself - but I have to say that the weaker conceptionis more consistent within the international human rights frameworkand, as will be seen shortly,it is the one being advancedby the indigenous peoples themselves.

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Lest I lose my point in initiating this excursus, let me return to where I started. I believe that this draft declaration addresses problems made exigent by processes of globalization-from-above,and that such address represents the empowerment made possible by processes of globalization-from-below.In this manner, globalization has lifted up a new historical moment in the conceptual development of human rights: the opportunityto acknowledge needed collective human rights in addition to individual ones. 2.2 Women'shuman rights At the outset of the modern human rights movement, the UN Charter (1946) laid special emphasis on the importance of the principle of nondiscrimination, which was subsequently built into the UDHR's Article 2, mandating that all persons are entitled to all human rights "without distinction of any kind," including race, sex, religion, political opinion, national and social origin, among others (Brownlie and Goodwin-Gill 2002, 19). As Mary Ann Glendon'srecent book on Eleanor Roosevelt and the UDHR shows, however, a number of delegates did in fact argue for giving more explicit attention to issues of gender discrimination beyond simply the statement of Article 2 (Glendon 2001). Although the framers of the declaration certainly acknowledged these issues - under special pressure from the Danish and Soviet delegations- they decided to rest content with folding in the prohibitionon gender discriminationwith the general principleof Article 2 and also avoiding as much as possible sexist language in the UDHR's other articles (with mixed success in the latter regard) (see, e.g., Morsink 1999, 117-129; Bell 1992, 346-347). Thus, they declined to specifically identify and combat the particular vulnerabilities of women in traditional and modern societies. This approachwas entirely consistent with their general strategy to emphasize individual human rights, while avoiding the singling out of particular groups or classes of people for special protection and treatment. As we have seen, however,this strategy left various groups vulnerable to systematic abuse by others, and this is no less true for other vulnerable classes of people, especially women in the context of thoroughgoingpatriarchy. Since the period of the UDHR, empirical studies have definitively shown that there is considerablejustification for more focused concern about the human rights of women (see, e.g., Sen 1999). It is clear, for example, that especially in the underdevelopedand developing countries of the world, women suffer disproportionatelyfrom hunger, malnutrition, and lack of access to health care;they are subjectedto domestic violence, rape during peacetime and war, and sexual abuse and harassment; they are denied opportunities to work outside the home and, when not, suffer from unequal pay and other discriminatory treatment; in many cases

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there are substantial barriers to political participation in their societies, including home confinement, illiteracy, curtailed educational opportunities, bans on public protest;and they often suffer fromunequal treatment before the law, including inequality in power to make contracts, unequal treatment in courts, unequal power to hold and administer property,and unequal treatment in matters of divorce and inheritance (drawn from Nussbaum 1997b, 102-19). Increasing awareness of these problems, as well as the fact of their ineffectual redress, led to women's liberation movements across the world, which in turn focused their attention on the need to empower women's agency in all areas of social, political, economic, and cultural life. In the late 1960s, through the 1970s, and continuing to the present day, these movements have coordinatedtheir efforts, assisted by global information, communication, and transport - to liberate women from practechnologies- globalization-from-below tices and conditions of oppression resulting in the aforementionedproblems. Three developments in particular are worthy of note. First, in 1979 these movements through political pressure virtually compelled the UN to adopt a Conventionon the Elimination of All Forms of Discrimination against Women(in force, 1981). Analogous to the Draft Declaration of Indigenous Peoples'Rights , this convention advances a set of women-specific rights and protections explicitly redressing problems of discrimination in the areas of law, political participation, education, employment, health care, and other spheres of economic,social, and cultural life, not to mention the enhancement of women's legal capacities in civil matters and matters regarding marriage, reproduction,and the family (Brownlie and Goodwin-Gill2002, 212-23). Like the indigenous peoples declaration, the women's convention is designed to capacitate the agency of the oppressed so that they themselves can address their problems in a manner best suited to their social and cultural locations. Second, in 1995 the power of the coordinatedwomen's human rights movements- both local and otherwise- was dramatically and symbolically demonstrated by the Beijing Conference on Women'sRights (see, e.g., Korey 1999, 64-66). Here these movements came of age, so to speak, in initiating cross-cultural dialogue about local interpretations of women's rights and about the development and implementation of practical strategies for their instantiation and enhancement throughout the world (Bazilli 2000). Third, during the past decade, the international women's human rights movement has been spawning local mutual assistance women's NGOs in the areas of education, vocational training, financial support and lending for community projects, and legal and social reform. Examples of these NGOs in South Asian sub-continent include the Annapurna Mahila Mandel Project,the Bangladesh Rural Advancement Committee, and the Self-EmployedWomen'sOrganization,ably describedby Martha

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Nussbaum in her recent book on women and development (Nussbaum 2000). The point is that through such projectswe can see practical strategies and effects of globalization-from-belowin the area of women'shuman rights. 2.3 Right to health and environmentalprotection With respect to refinement of the right to health, we encounter a development made possible by a different set of agents in the globalizationfrom-belowperspective:namely,the UN (and its organs) and the environmental movement. There appears to be a dialectical interplay between these two agents, which has simultaneously opened human rights to include environmental protection and opened the environmental movement to greater appreciation for human rights. The right to health as initially framed in the UDHR'sArticle 25 mandates a standard of living adequate for the health and well-being of self and family, including medical care, necessary social services, and a social security net in the event of unemployment, sickness, and disability (Brownlie and Goodwin-Gill2002, 22). While this might seem to be an inauspicious beginning for linking the right to health to environmental protection, it should be observed that the international public health community has always defined human health much more broadly than the standard biomedical model of the absence of physiological disease. In 1947, for example, the World Health Organization [WHO] defined health as "a state of complete physical, mental, and social well-being and not merely the absence of infirmity" (cited in Mann et al. 1999, 8). The International Covenant on Economic, Social, and Cultural Rights [ICESCR]- reflecting the influence of Third Worlddeveloping countries concerned in part with workers' well-being and environmental pollution stemming from previous colonial exploitation of their populations and natural resources- in 1966 refined the UDHR'sArticle 25 and mandated the right of everyone to "the enjoyment of the highest attainable standard of physical and mental health," imposing specific obligations on all states (singly and in concert) to help reduce stillborn rates and infant morality,to improve "all aspects of environmental and industrial hygiene,"and to prevent, treat, and control "epidemic,endemic, and occupational and other diseases" (Brownlie and Goodwin-Gill, 176). This refinement, of course, brings to the surface a human rights concernwith the quality of the environment, for which ThirdWorldcountries expected assistance from wealthy and more developed countries, especially those which had benefited from their prior exploitation. This environmental concern was ramified considerably by a revised 1984 WHO definition of health, which under the influence of the growing environment movement defined health as "the extent to which an

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individual or group is able to develop aspirations and satisfy [basic] needs," including the ability "to change or cope with" their natural and social environments (cited in Mann et al. 1999, 8). The international public health community has since come to emphasize the underlying conditions that establish the basis for realizing physical, mental, and social well-being, including "peace, shelter, education, food, income, a stable eco-system, sustainable [natural] resources, social justice and equity," the lack of which heightens the vulnerability of individuals and groups to a wide range of impairments {Ottawa Charterfor Health Promotion [1986] cited in Mann et al. 1999, 17). Building on the ICESCRArticle 12's identification of states' obligations to improve all aspects of environmental and industrial hygiene, various human rights commissions and even the case law of the European Court of Human Rights have interpreted these obligations as recognizing "the right to a healthy environment," mandating, for example, removing causes of ill health such as pollution and exposure to radioactive substances, as well as other steps to prevent industrial accidents and to protect the environment (Trinidade 1993, 579-582). Not insignificantly, international environmental law- a separate regime that emerged under political pressures of the environmental movement as well as from the developing concern by states that environmental problems are transnational in cause, scope, and effect- has recently converged with human rights law to advance explicitly the human right to a healthy environment, in addition to encouraging a more global approachto the environment requiring action at all levels and by all countries to mitigate problemsof "commonconcern"to all humankind (Trinidade1993, 563-569). Such problemsas depletion of the ozonelayer, the greenhouse effect, marine pollution, and acid rain- all of which have negative effects on human health, whether directly or indirectly- are transboundary phenomena calling for concerted and coordinatedaction by all who are affected. This convergent development in the refinement of the right to health to include the right to a healthy environment was something not envisaged in the mid-twentieth century, and it was made possible by agencies of globalization-from-belowin the manner indicated. 2.4 Changes in majorplayers regarding human rights Let us now turn to our second broad issue regarding human rights and globalization, namely: who are the main players- abusers and guarantors- in human rights, and have there been any changes in the past fifty years? Clearly,fromwhat has been said already about the adoption of the UDHR in the 1940s, the principal players were then perceived to be state actors in the role of both abusers, whether actual or potential, and guarantors of human rights. In that period, the world was obviously

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alert to the fact that states could and did perpetrate heinous violations of human rights on their citizens as well as others. The whole point of the UDHR was to rein in abuses of state power by granting protections to individual persons, wherever they might be located. Moreover,at this time, the reality of world politics was premised on the strong presumption of state sovereignty over internal domestic policies and practices, which in turn presented the problemof how to controlthe exercise of that sovereignty without radically changing this presumption. The answer to this problem was a compact among states to agree to hold themselves accountablefor the provision and protection of the human rights of their respective citizens. And within the terms of this compact, even with the presumptionof state sovereignty,states were envisioned as being able to bring other compactingstates to the bar ofjustice when it became apparent that they were violating the human rights of their citizens in an egregious manner.As a consequenceof this compact,then, states agreed to be the guarantors of their citizens' human rights, and agreed also (at least in principle)to the legitimacy of being held accountableto other compacting states for any serious breaches. This had the result of making the presumption of state sovereignty porous to external critique and (again, in principle) to possible international intervention and accountability in situations of massive non-compliancewith the compact. Some might say that it was unwise to put the foxes in charge of the chicken coops, but it must be said that anything more than this strategy- particularly with the then emerging ColdWar- was simply not politically feasible. It must also be said that the UDHR framers were not unaware of this problem and were able to agree on a concept of accountability that laid a basis for subsequent development of interventionist strategies in later years. How, then, has this situation changed, if at all, in more recent years, and how do these changes relate to the theme of globalization?In answering this question, I will focus on three illustrative topics: revisionment of the role of state actors in the international arena, the rise of transnational corporateactors, and the emergence of new social movements. 2.5 State actors Although, as indicated above, the possibility in principle of collective state international intervention on behalf of protectingthe human rights of citizens in violator states was laid at the very beginning of the modern human movement, there is no gainsaying the fact that humanitarian intervention has come of age in more recent years. This emergent role of collective state intervention is partly due to increased global communication, intercultural contact, and economic and political interdependence that make ever more apparent massive human rights violations in domestic contexts and their negative effects on international peace and

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security.This revisioned role has also been enhanced most recently by the end of the ColdWarwhich, through the bipolarbalance of the superpowers (US and USSR), had a restraining effect on the political feasibility of much humanitarian intervention, especially involving military action. Continued massive human rights violations have driven home to the world that internal state human rights abuses are of international concern and that domestic jurisdictions are limited by human rights. In effect, a "liberal"conceptionof state sovereignty- where states are explicitly constrained by international human rights conventions and customary international law- has supplanted the "classical"(or Westphalian) conception- which had insisted on non-intervention except in cases of aggression across borders threatening international peace and security (see, e.g., Henkin 1990, 51-64; Falk 1992, 31-41; Jackson 1990; Jackson 1999; Krasner 2001). Under this revised conception of sovereignty, humanitarian abuses on a large scale are by definition no longer regarded by the international community as purely domestic affairs. Coercive humanitarian intervention divides into two types: nonmilitary (e.g., withdrawal of aid, economic sanctions) and military (i.e., the use of force to protect and rescue the innocent). While the first type has a somewhat longer history of use and is regarded as relatively unproblematic(consider,e.g., the pressures placed on South Africato end its apartheid),the second more extreme formis compellingattention to a set of issues not envisaged and little discussed at mid-century.Examples of these issues include, to use the terms of the just war tradition (which underlies the law of humanitarian intervention):What are the grounds and limits for a just cause to undertake military humanitarian intervention? Who is the competent authority for undertaking such intervention- for example, the UN only,regional collations also? What is the legal basis for intervention- for example, a strict constructionof the UN Charterlimiting action to the Security Councilin cases of aggression, or a more liberal construction of that Charter permitting other agencies to take action in a broader set of cases (see, e.g., Biggar 2000; Kelsay 2003)? This is not the place to settle such convertedmatters, but I do believe it is fair to say that a consensus is emerging on various criteria and rules for legitimate humanitarian military intervention, for example: diplomatic and other non-force methods have proved (or are likely to be) ineffective; the use of force is likely to succeed and have a net benefit for the victims; the use of force is proportionate and does not intentionally target civilians (indeed, takes due care to protect them); preferable authorization by the international community (e.g., the Security Council or UN General Assembly), leaving it open whether other agencies might have to take action in egregious cases when the UN is unwilling or unable to act; compliance with the laws of war and the Geneva Conventions;clear and reasonable planning and support for the post-intervention period,including steps to institute the rule of law, assist transition to democracy,and normalize

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social and economic relations (see, e.g., Johnson 1999; Nardin 2002; Teson 1997; Lepard 2002; Miller 2000). A correlated development- which is also partly due to the same changes in superpower balance and globalization- is the emergence of practical legal accountabilityfor the perpetrators of human rights atrocities, including, but not limited to heads of state and military and police officials. The changes here involve the establishment of ad hoc international criminal tribunals, the development of universal jurisdiction of states in prosecuting crimes against humanity, and the recent establishment of a permanent International Criminal Court, developments which indicate the emergence and strengthening of a global conscience of sorts for bringing violators to the bar ofjustice (see, e.g., Robertson2000). This was, of course, first done in the Nuremberg trials at the end of the Second WorldWar, an experiment in international criminal justice whose expansion was largely derailed by political factors relating to the Cold War (see Hagen and Greer 2002). With the end of that war the pressure for legal accountability has now become more politically feasible. By the same token, however, an emerging conceptionand hope for a global civil society has also contributed to the international community'sdesire for legal accountability for massive human rights violations. 2.6 Transnational corporations One novelty spawned by globalization comes in the form of new actors on the international human rights scene which were likely not envisaged in the 1940s. Here I am referring to how the processes of economic globalization in particular have brought into being transnational financial institutions and corporationswhose economicpower exceeds that of many states. Setting aside the question of the intentions of these institutions and corporations,the manifest fact is that many of their policies have resulted in rather massive violations of human rights, particularly socio-economicrights. The policies of the World Bank and the IMF- at least until very recently- stipulated changes in the economic and political structure of beneficiary underdeveloped states that led to internal problems of, for example, unemployment, worker abuse, adverse effects of industrial pollution on health, and redeployment of resources away from social programs that clearly work to the detriment of the socio-economicrights of many, while fattening the purses of political and corporateleaders (see, e.g., Albert et al. 2000).3 Further, the cost-minimizationpolicies of transnational corporations- with their 3 Some might argue that investment and financial advisors and institutions do even more damage than transnational corporationsper se, since the formerhave more power and operate under even fewer constraints than the latter (see, e.g., Feldmann and Kelsay 1996 and 1997). There is no gainsaying, however,that these agents often operate together in many cases.

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underlying threat of withdrawal of capital and production facilities from non-compliant states - have tended to result in, for example, low wages, the skirting of worker safety regulations, worker abuse in the form of child labor, and the encouragement of lax regulation of healththreatening industrial and environmental pollution, again clearly disadvantaging the socio-economic welfare of many in underdeveloped countries (see, e.g., Santoro 2000, 13-32). The fact is that economic globalization processes have encouraged the emergence of a new kind of human rights abuser which is largely beyond the control of international human rights conventions and mechanisms directed solely to state actors. Staying within this perspective of globalization-from-above,we might ask whether there are any new human rights guarantors in this perspective analogous to the compactingstates of human rights treaties and conventions. I think it would be fair to say that there are such analogues.4 One can begin by considering the fact that recently transnational financial institutions of the sort mentioned above are making their decisionmaking processes more transparent and responsive to the genuine and complex needs of underdevelopednations, modifyingtheir structural adjustment policies to take into account their socio-economicimpact on vulnerable populations. In addition, these policies are also being modified in such a way as to encourage more democraticand political involvement of affected citizens in developing countries. Secondly,one can cite certain treaties among states regarding the regulation of transnational corporate activity, although these are still largely restricted to the developed "core"states of the Americas, Europe, and East Asia. Third, one might also cite an emerging global business ethic which attempts to address not only issues of corporatecorruptionand briberyin transnational business but also issues of discrimination, worker safety, and human health (see, e.g., Green 2000). Fourth, and perhaps more important, are the market-building strategies of some transnational corporations involving long-term capital and human investment in Third Worldcountries (see Santoro 2000, infra). Such strategies incorporate, for example, increasingly higher wages for workers, provision of high-quality working environments, and progressive worker training, all of which arguably enhance the human rights of workers directly and may also result indirectly in a more hospitable human rights ethos in the host country, at least in the long run. Recent developments in the management of transnational corporation range across, for example, legal rulings about the liability of corporate directors for the malfeasance of subordinates, advocacy pressures on 4 Many of these observations are informedby my reading of pertinent reports in The New YorkTimes over the past few years.

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corporations to make ethics a higher priority, the adoption by corporations of internal codes of conduct and values/mission codes, and the rise of corporate social audits of their policies and practices (see, e.g., Zipkin 2000). All of these developments pointedly raise the issue of corporate responsibility for protecting human rights. A few transnational corporations- for example, Motorola and Levi-Strauss- now explicitly recognize that they have responsibilities, for example, to avoid worker abuse, to monitor the practices of their business partners and sub-contractors(and to intervene when necessary), to educate their employees and partners about applicable human rights norms, and to cooperate with other corporations and agencies in setting higher labor standards and supporting their enforcement (Santoro 2000, 114-58; see also Donaldson 2000). While certainly promptedin part by outside advocacy groups, such developments also represent acknowledgementby the agents of globalization-from-abovethat with power comes responsibility, especially when that power is a result of an implicit contract between states and corporationsthat in return for economicbenefits corporations have the duty to operate in a socially responsible manner (Santoro 2000, 143-58). In short, it would be myopic to overlook the positive role that can be played by transnational corporationsin protecting and promoting human rights. 2.7 Social movements Turning to our other globalization perspective- globalization-frombelow- we can discern the emergence of another type of human rights actor on the international scene, in the form of a guarantor (or potential guarantor) not envisaged at mid-century. At the same time that globalization-from-abovebrings into being new human rights actors, the same processes, particularly assisted by communication and information technologies, are birthing the collaborationof large grass-roots social movements- some of which we have already encountered- such as environmentalists, consumer movements, labor movements, anti-sweatshop campaigns, and Third World debt-relief campaigns (see, e.g., Brecher, Costello, and Smith 2000). These movements appear to be gaining increased power- social, political, economic- to demand more humane policies and practices from, for example, states and transnational corporations, that is to say, policies and practices protective of human rights (see, e.g., Korey 1999). In 1987 Richard Falk identified and typologized at least five types of social movements that are by all accounts becoming ever more evident: (1) resistance movements for the causes of ecology, environmental protection, peace, and disarmament; (2) permanent, although unofficial, international tribunals conductinginquiries and issuing decisions about cases of state oppression (e.g., China's oppression of

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Tibet); (3) movements by NGOs to pressure states to punish perpetrators of egregious human rights violations and to recovervictims' property wrongfully appropriated;(4) consumer-basedmovements to hold governments and corporationsaccountablefor technological disasters and policies adversely affecting human welfare; and (5) counter-conferencesheld in tandem with official state and international conferences and consultations, delegitimating the latter and evoking more relevant grass-roots agendas (Falk 1987, 190-94; Permanent Tribunal of Peoples 1992). What is interesting and significant about these movements is the apparent fact that they have had some degree of success, at least as measured by their concerns becoming more mainstream and instantiated in the international community.For example, environmental protection now has an international legal regime and has been incorporatedinto human rights law. We now have officially recognizedinternational criminal tribunals. Transnational corporationsare now attending to human rights issues, if only to avoid consumer boycotts (see Rodman 1998). And counter-conferences,for example, at the 1995 Beijing Conference on Women'sRights, have resulted in internationally coordinatedhuman rights movements increasingly sensitive to local grass-roots issues. Capitalizing on this apparent success, some activists have suggested in print that the clear potential exists to coordinateall of these movements more systematically in advancing strategies to compel, for example, the adoption of minimum human rights "floors"in international trade agreements and lending policies, transnational corporatepolicies and practices, and state regulatory policies (Brecher, Costello, and Smith 2000). Despite their diverse foci, many of these movements share a common commitment to basic human rights, enhanced citizen political participation, environmental protection, and sustainable development which makes reasonable their greater coordinationand potential significant social reform in the advancement of human rights. My point here is to suggest, in short, that globalization processes have brought into being not only new human abusers but also new human rights guarantors in the form of increasingly powerful social movements that have the potential to check those abusers by using techniques ranging from public dissension and shaming to economic boycott (see Stammers 1999, 1004-1007; Korey 1999). My own wager is that such movements will help to bring into being new global institutional mechanisms for the protection of human rights parallel to those currently in place for state actors. 3. Changes in Human Rights Justification I turn now to the third and final venue for measuring the effects of globalization on human rights- namely, the issue of their justification.

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Although this is seemingly only a theoretical topic, it is nonetheless on the practical agendas of human rights advocates and critics alike. This practical orientation can be readily seen fromthose cultural critics of human rights in various regions of the world- for example, East Asia, the Middle East, Africa, even the Americas- who charge that international human rights represent nothing more than an attempt by the West to impose its version of moral and political liberalism upon societies, cultures, and traditions which see the moral world quite differently as informedby their own unique philosophies and religions. I believe that such charges are simply wrong-headed even when they are sincerely made, as they often are not when put forward by state actors only interested in throwing up a smoke screen to hide their human rights violations of their citizenries. But, as I say, sometimes these charges are made also by well-intentioned representatives of cultural, moral, and religious traditions concerned about the possibly deleterious effects of liberalism - on their and capitalism- perceived aspects of globalization-from-above socio-moralvisions and behavioral codes. So it is extremely important to set the record straight, and I will do so by first discussing the state of the question when the UDHR was debated and adopted in the 1940s. The development of the UDHR was a year and a half long process involving delegates from no fewer than fifty-six countries representing quite diverse cultural, moral, political, philosophical,and religious traditions, ranging across such systems and traditions as, for example, forms of Western liberalism (fromEurope and America),socialism (fromSoviet Russia and the Eastern bloc), Christianity (Catholic, Protestant, Orthodox), Hinduism, Buddhism, Islam (conservative and progressive forms), and Confucianism, among others. There were in fact some delegations (principallyfrom South America) which wanted to build into the UDHR explicitlyjustificatory appeals to some of these systems. Prominent here were attempts to invoke theistic concepts and even Thomistic versions of natural law. In the actual debates of the Third Committee, these efforts were vigorously discussed and thoroughly aired with the final outcome, spearheaded by the Chinese, Indian, and French delegates, being this: while the delegations could and did reach pragmatic agreement on a set of essential human rights norms, it was also recognizedthat, given the diversity of the world'scultural and philosophical systems and traditions, no deeper theoretical agreement would be possible, and so the delegates self-consciouslychose to eschew the use of contestable metaphysical language and appeals (Third Committee 1948, 96-122). Pragmatic agreement on practical norms protective of human dignity and welfare was deemed sufficient. The reasoning behind the pragmatic agreement as sufficient in itself was captured quite well by Jacques Maritain's introduction to the concurrent UNESCO symposium on the theoretical bases of human rights. I

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might mention here that Maritain'sviews were explicitly invoked by the French delegate in the Third Committee debate to support the Chinese delegate's position on maintaining metaphysical and justificatory neutrality in the UDHR. In his introduction to the symposium's published papers, Maritain had this to say: Because . . . the goal of UNESCO is a practical goal, agreement between minds can be reached spontaneously, not on the basic of common speculative ideas, but on commonpractical ideas, not on the affirmation of one and same conceptionof the world, of [humanity] and knowledge,but upon the affirmation of a single body of beliefs for guidance in action ... [a] body of commonpractical convictions.... Is there anything surprising in systems antagonistic in theory converging in their practicalconclusions?It is the usual picturewhich the history of moralphilosophypresents us. The phenomenonproves simply that systems of moral philosophyare the productsof reflection by the intellect on ethical conceptswhich precede and govern them, and which of themselves display, as it were, a highly complex geology of the mind where the natural operation of spontaneous reason, pre-scientific and pre-philosophic,is at every stage conditioned by the acquisitions, the constraints, the structure and the evolution of the social group. Thus, if I may be allowed the metaphor, there is a kind of plant-like formation and growth of moral knowledge and feeling, in itself independent of philosophic systems and the rational justifications they propound.... What is chiefly important for the moral progressof humanity is the apprehensionby experiencewhich occursapart from systems and on a different logical basis If thereafter we adopt a practical viewpoint and concern ourselves no longer with seeking the basis and philosophicsignificance of human rights but only their statement and enumeration, we have before us an entirely different picture . . . then not only is agreement possible between the members of opposing philosophic schools, but it must be said that the operative factors are less the schools of philosophy themselves than currents of thought . . . where the principal part has been played by the lessons of experience and history and by a kind of practical apprehension. . . (Maritain 1948, ii-v).

The position taken by the Third Committee, then, laid the groundwork for the common understanding in the international community that the pragmatic international consensus on human rights is a largely self-sufficient (and legally binding) compact among nations that needs no further justification, philosophical or otherwise. On this view, only the practical normative consensus and compact count; anything more is deemed superfluous and impractical. Before moving on to consider the state of the question in more recent years, it is important to observe that the pragmatic consensus reached in 1948 was international, cross-cultural, and cross-traditional. The norms agreed upon were (and are) not simply Western moral and political values imposed on the rest

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of the world. Rather, they are values recognized by diverse traditions at the point of intersection where they can agree on those conditions crucially necessary to thwart brutality and oppression by state actors. Moreover,it should be noted that because it is no more than a pragmatic consensus on these conditions,the UDHR does not forwardphilosophical theories about the nature of persons or political theories about the best form of governance. This is not to say that the UDHR lacks moral and political normative content on conditions perceived to be necessary for personal and communal flourishing, but it is to say that this content is not justified by any one moral or political theory.A pragmatic agreement that persons need certain protections,goods, and liberties to survive and flourish is not in itself a theory. Has the state of this question of human rights justification changed since the 1940s? I believe that it has, and I believe that the processes of globalizationare largely responsible for this change. It is a fact that globalization has enhanced cross-culturalcontact, awareness, and exchanges about worldviews, moral, political, and religious systems and about diverse patterns of reasoning andjustification throughoutthe world.These processes have affected the international human rights community's awareness and explicit acknowledgement- emergent in early 1980s and continuing to the present- that human rights norms and their recognition are contextually imbedded, interpreted, and justified in culturally diverse ways. Such acknowledgement can be seen in both official UN conferences about human rights, the rise of governmentally sponsored human rights dialogues, and the emergence of non-governmental cross-cultural and cross-traditional dialogues about the interpretation and justification of human rights norms. In all of these settings, one encounters explicit attempts, for example, to relate cultural moral categories to human rights norms, to identify and negotiate interpretations of these norms, to scrutinize cultural, social, and political traditions for their human rights implications, and even to articulate new social visions combining aspects of different traditions in a manner supportive of the priority interests represented by human rights (see, e.g., Kelsay and Twiss 1994; Twiss 1996). Most recently, both in these settings and in human rights scholarship, there have been efforts to identify possible shared reasons for the normative agreement on human rights. All of this activity has led to the emergence of alternatives for justifying human rights in the international arena. 3.1 Pragmatic agreement To begin with, it must be said that there are still many human rights scholars and advocates who regard the pragmatic international consensus on human rights as a largely self-sufficient and legally binding

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compactamong states needing no furtherjustification. Even though this consensus may be progressively developing in terms of refining previously identified norms and identifying new ones (as illustrated earlier), these scholars and advocates regard this exclusively as a pragmatic process of negotiation and attainment of new practical agreements. This position is in line with the Third Committee's practical view of: let us agree to agree on the practical norms and not discuss the issue of justification, since the latter is not likely to get us anywhere. By the same, token, however, there are also some scholars and advocates of human rights who appear to share this view of a selfsufficient consensus, but who have expanded it by giving meta-reasons (for want of a better term) for accepting its self-sufficiency, where these meta-reasons are themselves philosophical(or systematically antiphilosophical) rather than simply practical. One type of position, represented by the work of Richard Rorty, is informed by a pragmatist critique of metaphysics associated with the views of John Dewey (see, e.g., Rorty 1993a and 1993b). This position is very suspicious of comprehensive schemes, frameworks,or doctrines of any sort that claim to provide grounds for human rights norms on the basis of essentialist understandings of human nature or human moral capacity.Unlike the Third Committee's practical eschewal of metaphysical debate because it is likely to prove indeterminable, this view regards all such appeals as philosophically troublesome because they are no more than quasi-mythical creations of outmoded currents of thought driven by anxieties over possible nihilistic and/or relativistic implications of lacking absolute foundations for moral claims. Another type of related position, while agreeing with this critique of foundationalist thinking, also gives another meta-reason for accepting the self-sufficient consensus: namely, that history shows the futility and fragility of all such appeals. Accordingto Michael Ignatieff, for example, the Holocaust demonstrates that human rights can have no foundation whatever in natural human moral attributes, since that atrocityexplodes the myth of natural human pity or solidarity as being either innate or universally distributed (Ignatieff 2001, 80-81). All that we have to go on, therefore, are the negative lessons of history and our desire not to be likewise abused in the future, to which we respond by prudentially creating a pragmatic consensus that is unfortunately but unavoidably ultimately fragile. 3.2 Moral intuitionism Although seemingly similar to the aforementioned pragmatic positions, another type of view has recently emerged which appeals to moral intuition. The apparent similarity to the preceding position is this:

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human rights norms need no explicit justification. But the similarity ends there, for this view goes on to argue these norms need no justification because they identify claims that are logically prior to any theoretical justification and can be used to critique the very appropriateness of trying to provide such justification. That is, for this view, these norms are known to be true on an intuitive basis, and we use them to assess the very adequacy of moral theories and justifications. As argued by David Little, for example, if any moral theory were to sanction the indiscriminate torture of innocent children, then that very fact would demonstrate the bankruptcy of the theory itself (Little 1993). Crucial norms of the human right variety, then, precede theory, and to use theory to justify these norms is question-begging if not downright absurd. This position goes on to distinguish primary moral intuitions (such as non-torture)fromother secondaryhuman rights norms which are an outgrowth of them (e.g., norms of physical and civil security), since the latter are necessary to instantiate the formerin a more complete protective system. The logic behind this systematic development has been succinctly stated by Ignatieff in another portion of his work, where, after introducing a moral intuition of his own (involving the evident wrongness of one person seeing another as belonging to a different species), he goes on to argue that "humanrights is the language that systematically embodies this intuition" (Ignatieff 2001, 3-4). 5 Despite the different starting intuitions, Ignatieff and Little are apparently united in seeing the pragmatic consensus as epistemically, rather than metaphysically, grounded and then further developed on a rational basis to preserve and expand these intuitions- reason in the service of primary moral intuitions. The epistemic grounding, of course, is what distinguishes this position from a purely pragmatic one that is ungrounded. 3.3 Overlappingconsensus Yet another set of human rights scholars and advocates tend to interpret the international consensus as a cross-cultural overlapping agreement on practicalnorms which is explicitly supportedby diverse cultural, moral, or philosophical schemes. The development here- beyond that of the Third Committee, although possibly anticipated by it- is viewing these schemes as alternative and complementaryways of justifying 5 At this point it seems appropriateto mention that Ignatieff initiates a number of different arguments about the justification of human rights in addition to his rather spare pragmaticposition, for example: appeals to moral intuition, natural law, capacity to emphasize with the pain of others,moralreciprocity,and conditionsof human agency.I discern no attempt on his part to make these lines of argument self-consistent.

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human rights norms, in which peoples and communities are encouraged to develop their own ways of justifying the norms in local cultural idioms (see, e.g., Lindholm 1992). This approachmoves beyond the Third Committee's position, then, by positively emphasizing and capitalizing on the fact that there are diverse cultural justifications all of which are on par, so to speak, since in our post-modernage we must recognize that no one cultural justification is likely to become dominant or succeed in convincing others outside a given culture that only it is reasonable and true. This sort of approachis often viewed as an extension of John Rawls's understanding of Westernliberal values in a constitutional democracyas an overlappingconsensus supported by diverse comprehensive schemes held by its citizens and applied in an analogous manner to international human rights norms (see Rawls 1993). Although Rawls himself did not explicitly develop a position of this sort, his The Law of Peoples was certainly headed in such a direction, and the line of argument has been adapted by many other scholars to justify human rights norms (Rawls 1999). Charles Taylor, for example, in posing the question of what it would mean to have an international consensus on human rights, supposes that "it would be something like what John Rawls describes ... as an 'overlappingconsensus'"(Taylor 1996, 15). And more recently, Amy Gutman has argued, in criticism of Ignatieff's pragmatic position, that the "regimeof human rights . . . should . . . rely on many foundational arguments. A human rights regime that welcomes an overlapping consensus is more compatible with moral pluralism . . . the evidence has only increased on the side of the idea that many cultures can converge in support of human rights" (Gutman 2001, xix). 3.4 Cross-culturaldialogue Yet another approach is currently emerging, particularly in the context of cross-cultural human rights dialogues. This approach, while accepting the previous view of an overlapping consensus supported by diverse cultural justifications, nonetheless moves beyond it by trying to identify not only shared human rights norms on differing grounds but also shared reasons for accepting the norms. That is, this approach attempts to explore the deeper reasons that diverse cultures are able to reach a practical consensus- for example, the operation of analogous moral principles or rules, shared understandings of key human moral capacities (e.g., sympathy, compassion), and shared human vulnerabilities to suffering and oppression. This approach is also informed by the realistic view that all cultures are open to change and accommodation, thus enabling further possible agreement all-the-way-down,so to speak, so long as their most important legitimate constitutive values are not

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undermined. In effect, this approach represents a creative search for shared reasons that justify the pragmatic consensus on human rights. While I initially identified that approach with John Reeder's neopragmatic proposal for a limited moral Esperanto that "appealsto general features of human nature [that] can perhaps furnish grounds for agreement"that he saw at work "inthe growth of the human rights movement,"there is no gainsaying the fact that others are following this trajectory as well (Reeder 1993, 205). Martha Nussbaum's capabilities approach,developedin part with Amartya Sen, explicitly attempts to identify a range of "centralelements of truly human functioning that can command a broad cross-cultural consensus"which she argues permits us to understand why diverse cultures accept human rights (Nussbaum 2000, 71-86, quote from 74). In effect, her basic capabilities of life, bodilyhealth and integrity, imagination and thought, emotional attachment, and affiliation, among others, identify shared rationales for cross-cultural agreement on basic human rights norms (Nussbaum 1997a, 292-97). And she is hardly alone in thinking along these lines, since I am aware of no human rights scholar or advocate who does not relate human rights in some significant manner (including all the abovementionedfigures) to the recognitionof the importance of human suffering and capacities necessary for human agency. Moreover,it is very clear from cross-cultural human rights dialogues that similar sorts of appeals are being identified and invoked as shared commonalities that warrant the acceptance of human rights. 3.5 Critical and concluding comments It seems appropriate at this point to underscore the main thrust of this discussion. It is to suggest that, in bringing together representatives of diverse cultures for grass-roots and intercultural human rights dialogues- making human rights local, to use a phase from Ignatieffglobalization-from-belowhas made possible and encouraged the emergence of these alternative forms of justification, thus moving beyond how the issue was viewed at the time of the adoption of the UDHR (Ignatieff 2001, 7). Since each of these positions has strengths and weaknesses, it also seems appropriate to say something by way of critical evaluation, even at the risk of repeating what I have written elsewhere (see Twiss 1998, 279-80). The bare invocation of a pragmatic consensus has the strength of focusing exclusively on behavior and avoiding possibly indeterminate philosophical disagreement. Its weakness is its failure to engage peoples, communities and traditions on issues dear to them- their deepest beliefs- which if engaged might result in greater social acceptance of human rights norms in the form of a cultural human rights ethos. Further, the variations on this position which eschew

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metaphysical or foundational claims of any sort may be misguided, but that is a debate for another setting. Appeals to moral intuition to ground the consensus epistemically will doubtless be unconvincingto those who view such appeals as a desperate attempt to say something when reasons fail to persuade or are unavailable. The overlappingconsensus view which admits but does not decide between diverse cultural justifications addresses the weakness of the bald pragmatic consensus by encouraging peoples and communities to develop their own ways of justifying human rights, for that helps to ensure social acceptance and compliance. Its weakness comes in the form of not addressing the possibility that as cultural justifications are shared their adherents might discern some deep incompatibilities. The cross-cultural dialogical position attempts to address the latter problem by encouraging peoples and tradition to learn from each other and possibly converge on a shared justification or set of reasons. This approachhas the strength of being realistic about cultural permeability, change, and openness to accommodation.Its weakness is that it involves a wager that might be undermined by political and economic pressures and possibly intractable cultural disagreement at the deepest level. My own view about the matter of human rights justification returns us to elements of Jacques Maritain's view which I did not discuss earlier but now want to highlight. In advancing his pragmatic position, Maritain wrote of the "natural operation of spontaneous reason, prescientific and pre-philosophic... at every stage conditioned by the acquisitions, the constraints, the structure and evolution of the social group ... a kind of plant-like formation and growth of moral knowledge and feeling . . . independent of philosophical systems and their rational justifications . . . where the principal part has been played by the lessons of history and by a kind of practical apprehension"(Maritain 1948, iv). Maritain'sformulationhere- while not justificatory in any obvious sense- speaks of the growth of moral knowledge and feeling as informed by historical and social experience accumulating over timeindeed, centuries- passed down to us in the way that we are conditioned and shaped by our social and cultural conditions. The resulting practical apprehension,then, is not a simple rational intuition (of the sort perhaps envisaged by Little or Ignatieff), but rather one that has been shaped and tutored by history, social experience, and tradition. This sort of practical apprehension is in reflective equilibrium- to borrow a notion from Rawls- with other facts, beliefs, and commitments forged over time. I believe that Maritain is ascribing this type of practical apprehension to cultures and traditions across the world, suggesting that they have yielded convergent practical convictions that have been tested, shaped, retested, and reshaped, culminating in a practical moral wisdom recognizable across cultural differences- that is, a set of convictionswhich are

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stable, indeed unshakeable, because they are in a even wider reflective equilibriumwith shared facts, beliefs, and commonalities.When I reflect on the views of great representatives of these traditions- paradigmatic characters, sages, and normative teachings recognized as such by their traditions- there does seem to me to be a convergenceof practical moral - in wisdom which was codified- or to use Maritain'sword, "crystallized" the UDHR (Maritain 1948, ii). At the same time, it also occurs to me that the cross-cultural dialogues attempting to identify shared reasons underlying the acceptance of the human rights consensus are precisely efforts to sift through and interrelate the cross-traditional factors or reasons that may account for the shared practical wisdom of the UDHR. If this is a correct reading of the process, then it seems to me continuous with, even if deepening, Maritain's insight and agricultural metaphor: a process of searching among the roots and nutrients of the plant-like formation and growth of moral knowledge and feeling, in order to become better gardeners of this practical wisdom. That at least is my tentative and growing apprehension of the matter, and I believe that globalization may be making this practical moral wisdom ever more apparent.

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