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Indigenous Rights, Women’s Rights, and Cultural Rights

PART ONE

Recent efforts to develop a gas pipeline through Wet’suwet’en territory, against the wishes of local inhabitants and their allies, have led to massive collective action in Canada, including the recent disruption of highways and railways by protestors/protectors. Many of the First Nations elected councils (officially recognized by Canada) have agreed to the pipeline project or similar projects while many of the hereditary chiefs (whose legal recognition is challenged by the Canadian government) have disagreed and organized against the project (as seen in the AJ+ video).

The Wet’suwet’en have a long history of challenging Canadian sovereignty and authority over their territory. One of the paradoxes of their challenges is that they must make their sovereign claims in the courts whose very legitimacy they challenge! Put another way, the Wet’suwet’en view the Canadian government (and therefore courts) as having no authority on their territory, but must submit their claims to the court, thereby possibly legitimating the decision and authority of the court (for more on this, see Karena Shaw (2008), Indigeneity and Political Theory).

  1. Who has the right to determine the sovereign claims and legitimate control over the disputed territory? What is the best way to settle these disputes? What considerations should be brought to bear in making these decisions and settling these disputes?

Resolution Copper is seeking approval to begin mining operations in Oak Flats area of Arizona. The land is Apache territory and has long been protected and preserved. Resolution Copper has bought surrounding land in a likely effort to offer the Apache a land-trade deal. In addition to concerns over pollution of ground water, environmental degradation and loss of biodiversity, the Apache claim the territory holds invaluable cultural, ancestral and spiritual worth.

  • What is the best way to settle these disputes? What considerations should be brought to bear in making these decisions and settling these disputes? Ought we to consider spiritual and cultural claims on territory and how?

PART TWO

Abusharaf introduced us to the practice of FC/FGM. One paradox that emerges from her research is the view that the procedure is abusive and an affront to women’s rights while at the same time being largely carried out by women. In many cases, the women interviewed admitted the procedure can be incredibly painful but it brings with it self-confidence, spiritual cleanliness, and social power.

  1. Is female circumcision/female genital mutilation (FC/FGM) a violation of human and women’s rights? Explain.
  • Is male circumcision/male genital mutilation (MC/MGM) a violation of human rights? Explain.
  • What should be done in the case of MC/MGM or FC/FGM? Are they different? Explain.
  • If you believe these practices should be limited, then what is the best approach to limit them (legal/social/educational/other?)?

Just War and Responsibility to Protect

This week, you read Evans and Sahnoun’s influential article on “Responsibility to Protect” (sometimes written as R2P or RtoP), a new formula that we might fit under the broad heading of Just War theory. As the authors point out, R2P differs from some of the more traditional logics of war, primarily because the focus is not on the self-defense by one government or nation-state facing another government/nation-state, but rather, the defense of a peoples from their government by an outside government/nation-state. Put another way, the force(s) engaged in violent conflict in the name of R2P are purportedly primarily fighting in the interest of some other peoples, not their own peoples. In a world where nation-state sovereignty is the international legal standard (in theory if not in fact), R2P is viewed as a corrective in those instances when a nation-state is unable or unwilling to fulfil its purported sovereign duty to protect the rights of its citizens (i.e., “internal sovereignty”). As the authors explain, R2P changes the question of sovereignty from one of control to one of responsibility.

Of course, the lines between protection and control, sovereignty and rights are fuzzy. R2P has a liberal/idealist/cosmopolitan basis (protection of universal individual human rights) but can easily be weaved into the logic of traditional realist power politics.

Critics of R2P worry that the logic will be abused and that nation-states will undertake war in the name of human rights but with the actual intention of pursuing their own interests and power. Fortunately, Evans and Sahnoun give us some principles that should help determine whether and when military intervention in the name of human rights can be justifiably undertaken. These include:

  • Just Cause – this includes genocide (purposeful large-scale killing of an ethnic/national group), crimes against humanity (large-scale organized killing, enslavement, rape, violation of bodily integrity through torture, starvation, or other means) or ethnic cleansing (the removal of a peoples or culture from an area or from social space that may but need not include killing). 
  • right intention – includes collective multilateral considerations and support for intervention by those who are suffering (i.e., the people must signal support for outside intervention)
  • last resort – only when nonmilitary options have been exhausted or are unlikely to succeed
  • proportional – scale, duration, and intensity of military intervention should be the minimum required to achieve the stated objectives
  • reasonable prospects – chance of success must be reasonably high and intervention must not make things worse
  • right authority – UN Security Council, UN General Assembly, and Regional Organizations who have broad legitimacy, in that order. Evans and Sahnoun challenge the intervention of ad hoc multilateral or unilateral forces in the absence of UN approval because their legitimacy, authority, and intentions might be questioned, and they risk undermining the legitimacy and authority of the UN.

Since their article in 2002, Sahnoun and Evans worked to make R2P an international norm. The UN has since taken the mantle of R2P in various declarations and documents and Evans now manages the Global Centre for Responsibility to Protect (Sahnoun passed away in 2018). While it is not a binding principle of international law, many of the principles of R2P can be found in already existing laws like the Geneva Conventions, and the UN has worked to formalize R2P procedures. As Evans and Sahnoun explained in their 2002 article, R2P could easily be extended to Responsibility to React, Prevent, or Rebuild – each with its own set of problems and issues. The last one, responsibility to rebuild, is especially relevant given the destructive nature of modern warfare and the limited international legal foundations for war reparations. There is always more work to be done and more thinking to be thought.

Now for a brief exercise!

Pick a country currently listed by the Global Centre for the Responsibility to Protect (https://www.globalr2p.org/populations-at-risk/). Take 5 minutes to read the summary.

What if any conditions of R2P are met in this case? About how many people are affected or at risk of having their human rights violated?

For how long has the crisis or potential for crisis been taking place?

What response(s) does the GCR2P recommend? Are they likely to succeed? On what does this depend?

What are the possible benefits and drawbacks of their approach? How might we assess the expected outcomes and how might we protect against the potential drawbacks?

Any other thoughts?

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