Human Rights and Legal Pluralism in Theory and Practice

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
Friday 5th and Saturday 6th December 2014
Litteraturhuset, Oslo, Norway
Friday 21st November 2014
Aled Dilwyn Fisher (NCHR, UiO)
[email protected]
Human Rights and Legal Pluralism in Theory and Practice
Paper submission and contact information
Preliminary programme
Conference format
Accommodation and directions
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
Friday 5th December
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
Human Rights and Legal Pluralism in Theory and Practice
Giselle Corradi – The right to a fair trial in legally plural jurisdictions: the case of
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
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
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
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
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 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
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).
Human Rights and Legal Pluralism in Theory and Practice
Rica Travel
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
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
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,
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
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
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.
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?