Human Rights and Legal Pluralism in Theory and Practice An international conference organised by the Norwegian Centre for Human Rights (NCHR) in cooperation with the Rights, Individuals, Culture and Society Research Centre (RICS) at the Faculty of Law of the University of Oslo (UiO)

Preliminary programme and practical information DATES:

Friday 5th and Saturday 6th December 2014

VENUE:

Litteraturhuset, Oslo, Norway

DEADLINE FOR DRAFT PAPERS:

Friday 21st November 2014

CONTACT/SUBMISSION:

Aled Dilwyn Fisher (NCHR, UiO) [email protected]

Human Rights and Legal Pluralism in Theory and Practice

CONTENTS 1. 2. 3. 4. 5. 6. 7. 8. 9.

Paper submission and contact information Preliminary programme Conference format Venue Accommodation and directions Food List of participants Conference objectives Background note

1. Paper submission and contact information Draft papers should be submitted two weeks before the conference on Friday 21st November to Aled Dilwyn Fisher, Research Assistant at the NCHR, at [email protected] for circulation to all participants. Please also direct any further enquiries regarding the conference to the same address.

2. Preliminary programme Thursday 4th December 19:00

WELCOME GATHERING (VENUE TBA)

Friday 5th December 08:00-08:15 WELCOME AND INTRODUCTORY REMARKS 08:15-09:45 THEME 1: Pluralism in human rights law   

Alain Zysset – The foundational role of pluralism in human rights law: from the concept to the institution Yüksel Sezgin and Mijam Künkler – Does legal pluralism enhance or impede human rights: re-evaluating the effect with a new multi-methodological tool – legal pluralism index (LPI) Tehila Sagy – Re-thinking multicultural jurisdictions

09:45-10:00 BREAK 10:00-11:30 THEME 1: Pluralism in human rights law (continued)   

Kristin Henrard – The European Court of Human Rights’ ambivalent use of the prohibition of discrimination regarding legal pluralism: the promise of Thlimmenos versus the Court’s reasoning in Chapman and Munos Diaz Astrid Lipinsky – Equality in Chinese Law and strategies to achieve it Maria Lundberg – Pluralism in the implementation of CERD in China

11:30-12:30 LUNCH 12:30-14:00 THEME 2: Legal pluralism and access to justice

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Human Rights and Legal Pluralism in Theory and Practice   

Giselle Corradi – The right to a fair trial in legally plural jurisdictions: the case of Bolivia Oswaldo Ruiz-Chiriboga – You have no right to remain silent: self-incrimination in Ecuador’s indigenous legal systems Kristin Sandvik – The pluralities of protection: an ethnographic examination of precautionary measures for displaced women in Colombia

14:00-14:10 BREAK 14:10-16:00 THEME 2: Legal pluralism and access to justice (continued)    

Gu Su – Theoretical controversy over the rule of law in China Marianne October Nielsen – Indigenous justice programs, human rights and nationbuilding Yong Zhou – Institutionalizing peoples’ rights in the Chinese Party State Girmachew Alemu Aneme and Kjetil Tronvoll – Legal pluralism and the protection of human rights in Ethiopia

16:00

CLOSE

19:00

DINNER (VENUE TBA)

Saturday 6th December 08:00-09:30 THEME 3: Legal pluralism in natural resource management   

Anne Griffiths – Framing the global: land and gender in in Botswana Anne Hellum and Bill Derman – The breakdown of Harare’s water and sewage system: legal pluralism in the making Deva Prasad – Legal analysis of accessibility to land resources for indigenous people in India: significance of recognition of legal pluralistic norms

09:30-09:45 BREAK 09:45-10:45 THEME 3: Legal pluralism in natural resource management (continued)  

Naran Bilik and Ao Renqi – From cultural pluralism to legal pluralism: negotiating cultural ideologies in China Valmaine Toki – Legal pluralism and indigenous rights of the Maori in New Zealand

10:45-11:45 LUNCH 11:45-13:35 THEME 4: Legal pluralities in coexisting governance regimes    

Irene Hadiprayitno – Ethnic narratives and indigenous rights in Merauke, Indonesia Ingunn Ikdahl – The human right to water in a legal pluralist environment of multilateral water cooperation in Zimbabwe Aled Dilwyn Fisher – Legal and normative pluralism and human rights in the idea of climate justice Vikram Kolmannskog – Disasters and refugee protection – a socio-legal case study from Yemen

13:35-13:45 BREAK

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Human Rights and Legal Pluralism in Theory and Practice 13:45-15:50 THEME 5: Legal pluralities in the construction of the person, marriage, family relations and gender     

Rosalie Katsande – Women’s negotiation of partnership and marriage norms on irrigations schemes in Mutoko in Zimbabwe Ilker Tsavousoglou – The legal position of Muslim minority women under the rule of Islamic law in Greek Thrace Monika Lindbekk – Efforts to integrate human rights standards in Egypt’s pluralistic personal status system in the aftermath of the 2011 revolution Gerard van der Schyff – Pluralism as a positive value in Europe: ritual slaughter and full-face veils in the case law of the European Court of Human Rights considered Jaclyn Neo Ling Chien – TBA

15:50-16:00 CONCLUDING REMARKS 16:00

CLOSE

19:00

DINNER (VENUE TBA)

3. Conference format Each participant should prepare a presentation of no more than 20 minutes. Sessions are divided up into panels of 2-5 speakers. A discussion of no more than 30 minutes follows each panel, during which presenters will have an opportunity to answer questions. Presenters are free to use Powerpoint, if they wish, and should supply their presentations in advance.

4. Venue The conference will take place at Litteraturhuset (the House of Literature) in central Oslo. The address is Wergelandsveien 29, 0167 Oslo. For more information, see http://www.litteraturhuset.no/english. The room we will be using is located on the first floor.

5. Accommodation and directions Participants travelling from outside of Oslo will all be staying at Rica Travel Hotel in the city centre. The address is Arbeidergata 4 Oslo, 0159. For more information, see https://www.rica-hotels.com/hotels/oslo/rica-travel-hotel/?lcn=en. To get to Litteraturhuset, you leave the hotel to your right onto Arbeidergata, turn left onto Kristian IVs gate and follow it until it becomes Wergerlandsveien. Litteraturhuset is located at the end of Wegelandsveien as shown on the map below (black arrow). The journey should take no more than 10 minutes. The hotel is also very close to Nationaltheatret (the National Theatre) train station, where the airport express train (flytoget) from Oslo Airport Gardermoen arrives in the city centre. Nationaltheatret is also shown on the map below. From Nationaltheatret, take Karl Johans gate until you reach Lille Grensen on your left. Arbeidergata is the first street on the left along Lille Grensen. This is shown on the map (red arrow).

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Human Rights and Legal Pluralism in Theory and Practice

Litteraturhuset

Nationaltheatret

Rica Travel Hotel

6. Food Breakfast will be served at the hotel for those staying at Rica Travel Hotel. Lunch will be served each day during the conference at Litteraturhuset. Evening meals are planned for Friday 5th and Saturday 6th December. These food costs will be covered for participants.

7. List of participants Alain Zysset

Goethe University Frankfurt

Aled Dilwyn Fisher

University of Oslo

Anne Griffiths

University of Edinburgh

Anne Hellum

University of Oslo

Ao Renqi

Inner Mongolia Academy of Social Sciences

Astrid Lipinsky

University of Vienna

Bill Derman

Norwegian University of Life Sciences 5

Human Rights and Legal Pluralism in Theory and Practice Deva Prasad

Tata Institute of Social Sciences

Gerard van der Schyff

Tilburg University

Girmachew Alemu Aneme

International Law and Policy Institute

Giselle Corradi

Ghent University

Gu Su

Fudan University

Ilker Tsavousoglou

Ghent University

Ingunn Ikdahl

University of Oslo

Irene Hadiprayitno

Leiden University

Jaclyn Neo Ling Chien

National University of Singapore

Kjetil Tronvoll

International Law and Policy Institute

Kristin Henrard

Erasmus University of Rotterdam

Kristin Sandvik

University of Oslo

Maria Lundberg

University of Oslo

Marianne October Nielsen

Northern Arizona University

Mirjam Künkler

Princeton University

Monika Lindbekk

University of Oslo

Naran Bilik

Fudan University

Oswaldo Ruiz-Chiriboga

Ghent University

Rosalie Katande

University of Zimbabwe

Tehila Sagy

University of Leicester

Valmaine Toki

University of Waikato

Vikram Kolmannskog

Oslo

Yong Zhou

University of Oslo

Yüksel Sezgin

Syracuse University

8. Conference objectives In light of the apparent failure to deliver projected human rights benefits and protections to groups and individuals, there has been a call for research that addresses the complex legal situations that arise from the coexistence of, and interactions between, international law,

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Human Rights and Legal Pluralism in Theory and Practice state law, and co-existing social and religious norms and institutions at different levels of law in different parts of the world. The objective of this conference is to identify, describe, and analyse practical issues regarding the interpretation and realisation of human rights in light of legal pluralism – the coexistence and interaction of various normative orders in the same social field. This requires an exploration of the role of actors, governance and power relations. The organisers encourage participants to contribute with interdisciplinary, theoretical and/or empirical studies within the following three areas, addressing cross-cutting issues of gender, ethnicity, religion and/or culture: 1) Family law The unmaking of gender inequalities embedded in formal and informal statutory, customary and religious family norms is a major challenge for state parties to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and related international and regional instruments, women’s and human rights organisations, and human rights agencies. The human rights claims of African, Asian, Latin American and European women, often supported by women’s rights activists, have in many instances yielded legislative or judicial interventions modifying discriminatory state, religious and customary laws in the field of family law. While such litigation strategies mirror the growing quest for legal change, other types of interventions are in practice equally important to ensure broad-based realisation of human rights at grassroots level. Towards this end, there is a need of research that, on the basis of social actors’ experiences and perceptions, explores how the position of women and gender relations are shaped and reshaped in a plural, unsettled and contested terrain where human rights, state law, customary law, religious laws and local norms and institutions coexist and interact in the same social field. 2) Access to justice Realising that formal state justice is not readily accessible for vulnerable individuals, international and national development actors operating in the Global South are today considering how informal, non-state, customary or religious justice forums can contribute to enhancing access to justice. Faced with an increasing immigrant population, Northern states are grappling with a situation where state justice systems are inaccessible or mistrusted by large groups of immigrants. Current attempts to use informal customary and religious norms and institutions as pathways to justice have, on the one hand, opened up space beyond the confines of state law to ethnic, religious and women’s groups, such as legal advice and conflict mediation. On the other hand, the interests of different ethnic and religious actors, and the interests of individual women and children within these groups, often come into conflict. Research is needed that addresses the options for and limits of justice sector initiatives that seek to enhance vulnerable groups such as the poor, the displaced and immigrants, and women and children within them, by marrying human rights and legal pluralism. 3) Access to natural resources International and national natural resource laws and policies have to a large extent been constrained by powerful international and national economic actors opting for market-led reforms. In opposition to market-based policies, intensified privatisation and commodification, human rights-based approaches view natural resources like land, forests and water as central to the right to livelihood and the right to cultural identity of groups and individuals. As national and international investors seek new lands for forests, mining, conservation areas, biofuel and food plantations, the way in which human rights law shapes the relationship 7

Human Rights and Legal Pluralism in Theory and Practice between state law and the community-based norms and institutions that govern access to, and use and control of, natural resources like forests, land and water need to be explored. Towards this end, research that situates rights struggles over access to land, minerals, forests and water in the context of coexisting and conflicting norms and institutions, changing property relations, growing scarcity and the demand for more effective natural resource use is needed. To come to grips with the complex struggles for power and resources that shape the relationship between international, national and local norms, the notion of shared community interests needs to be deconstructed so as to uncover patterns of gender and social differentiation within local communities.

9. Background note Legal pluralism, a controversial topic in law and the social sciences, cuts to the core of debates around human rights, equality and diversity. It is seen in the overlapping normative and institutional orders at local, regional, national and international levels. These orders, including human rights, are themselves mutually-constituting and interpreted differently by different actors at all levels. This ‘internal’ pluralism thus both affects and reflects the ‘external’ reality of normative and institutional pluralities in social fields. The study of human rights and legal pluralities opens up for debates around contradictions between and within different normative orders and different levels of law. It exposes tensions between the global, universalist aspirations of human rights and their specific, local realization. Legal pluralities point to the importance of contextualising human rights and the need for critical consideration of the relationship between universality and uniformity as well as equality and diversity. Such debates are today played out around the limits of religious freedom in family law, gender and equality issues, and children’s rights; differing levels of recognition of indigenous peoples’ cultural, religious and natural resource management systems; or ‘forum shopping’ by diverse social actors between different normative and institutional orders. In order to enhance the analysis of human rights realisation, scholars and practitioners should address the social reality of legal pluralities. The role of ‘semi-autonomous social fields’ in interpreting, generating, filtering and translating norms is crucial in understanding living law, and how human rights are translated into local norms. It is essential to move beyond assumptions of the primacy of state law and to recognise the interactions between normative and institutional orders that have proliferated in post-colonial times. Globalisation, migration trends, neo-liberalism and post-9/11 security paradigms have all blurred distinctions between ‘state’ and ‘non-state,’ and ‘legal’ and ‘non-legal.’ Formal state law is thus only one part of the picture for understanding human rights realisation. Traditional perspectives on legal pluralism and human rights have focused on questions of the compatibility of both pluralistic social norms and formal legal pluralistic systems with human rights. They take international human rights as their starting point for approaching legal pluralities. However, multidisciplinary, analytical and descriptive approaches to legal pluralism have evolved, effectively reversing this analysis, using an appreciation of legal pluralities as a tool for examining local responses to global norms. The latter approaches emphasise understanding the definition, interpretation and promotion of human rights in the context of legal pluralities, including the way human rights are mobilised by social movements, civil society organisations and other actors to frame conflicts, and promote or limit pluralism; and how human rights are translated into social fields by processes of ‘vernacularisation’ and ‘indigenisation.’ These approaches require an examination of the role of actors, governance and power relations.

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Human Rights and Legal Pluralism in Theory and Practice Researchers and practitioners at NCHR and RICS have encountered numerous examples of legal pluralities regarding various issues – such as religious rights and freedoms, equality and non-discrimination, family law, gender, children’s rights, indigenous rights, minority rights, cultural rights, linguistic rights, land rights, the environment and natural resources – in the European, African, Middle-Eastern, Asian, and Latin American contexts in which we work. Appreciating these pluralities is crucial to enhancing our understanding of the prospects and challenges for reconciling equality and diversity in dealing with development, environmental protection, the rule of law and good governance, and stability in post-conflict societies. We wish to enhance the understanding of legal pluralities for our own work and the work of other human rights researchers and practitioners, legal scholars, religious studies scholars, political scientists, anthropologists, and those from other disciplines. We find that the three areas for further research first outlined by Anne Griffiths in 2002 may provide useful points of departure for the exchange among scholars and practitioners participating in the conference: 1) Law as a system of representation and meaning – how various legal orders create, produce and enforce meanings and relationships, particularly about concepts like equality, rule of law, democracy and development, and the consequences this has for rights claims, especially of minority groups. For example, what roles do human rights play in the construction of meaning and identity in tensions between claims for religious freedom, minority autonomy and gender equality? 2) Mobilisation of law at a local, national and international level – how human rights principles and standards affect the framing of issues, especially in clashes between different normative systems, and the choice of institutional settings for mobilisation, including through forum shopping. Examples include indigenous peoples’ use of international legal norms, such as self-determination and cultural rights, to protect indigenous natural resource management. 3) State law as shaped by other normative orders – how various normative orders shape state law and how state legal systems reflect, negotiate and manage differing ideological and cultural affiliations among populations. Given human rights are both one of these normative orders, and a set of rules and principles for the negotiation and contestation of difference, what role do they play in the accommodation or restriction of normative diversity in state law?

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