Constructing Human Rights in the Age of Globalization

Mahmood Monshipouri, Neil Englehart, Andrew J. Nathan, Kavita Philip

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317473893
• Edition: 1
• Topic: Education
• Subtopic: Education Teaching Methods

Both human rights and globalization are powerful ideas and processes, capable of transforming the world in profound ways. Notwithstanding their universal claims, however, the processes are constructed, and they draw their power from the specific cultural and political contexts in which they are constructed. Far from bringing about a harmonious cosmopolitan order, they have stimulated conflict and opposition. In the context of globalization, as the idea of human rights has become universal, its meaning has become one more terrain of struggle among groups with their own interests and goals. Part I of this volume looks at political and cultural struggles to control the human rights regime -- that is, the power to construct the universal claims that will prevail in a territory -- with respect to property, the state, the environment, and women. Part II examines the dynamics and counterdynamics of transnational networks in their interactions with local actors in Iran, China, and Hong Kong. Part III looks at the prospects for fruitful human rights dialogiue between competing universalisms that by definition are intolerant of conradiction and averse to compromise.

Part I

---

The Struggle to Control the Human Rights Regime

1
Who Owns Our Culture?

Intellectual Property, Human Rights, and Globalization

Caren Irr

Economic globalization has exacerbated long-standing and serious controversies over the ownership of culture. Such disputes arise when transnational corporations seeking resources to capitalize and commodify lay claim to cultural materials circulating in local economies. Or, when Inuit seamstresses sue Donna Karan for appropriating traditional parka designs, an Amazonian leader contests the Body Shop’s use of his image in their advertising campaigns, Indian agriculturalists protest the patenting of turmeric (used in traditional remedies), or the Thai government opposes a Texas company’s claim to own the germ of a hybrid form of jasmine and basmati rice, then the ownership of culture is at issue.¹ In each of these instances, economic globalization has heightened anxieties about who may legitimately claim the artistic and scientific traditions of a culture.

Such conflicts are not simply the result, however, of a one-directional global seizure. Similar disputes occur when transnational corporations (or national governments acting on their behalf) seek redress for unauthorized reproductions of cultural products. For example, in the 1970s Hollywood’s concern to protect the profitable hit film Saturday Night Fever from Turkish reproducers led the U.S. Senate to upgrade film piracy to felony status—an effort the Business Software Alliance seeks to duplicate with respect to information technology. Similarly, the recording industry has famously prosecuted the inventors of file-exchange websites, such as Napster, and even toy companies such as Mattel vigorously protect properties such as Barbie from illicit reuse by struggling artists.² Contests over the ownership of culture include challenges to seizures both “from above” and “from below.”

In the context of an increasingly integrated global economy supported by mobile populations, the “above” versus “below” opposition does not always correlate to “global” versus “local.” In fact, for the purposes of intellectual property disputes, the distinction involves two different but equally historically inflected and conflicted understandings of the relationship between culture and property. On the “below” side are those who defend culture as a way of life belonging to and authenticated by a sustained communal involvement in a set of practices. On the “above” side are those who assert rights to ownership of cultural works based on contractual obligations, especially obligations involving the alienation of authorship in exchange for monetary reward. Culture in this second view rests on individualist forms of production. On one side, then, the right to culture has priority over property rights and perhaps limits the scope of what can be claimed as property; on the other side, culture appears from the start in its guise as property, and the rights of property owners supersede those of users. For both sides of this not entirely symmetrical debate, the claims of the opponent are registered as illicit infringements—hence the necessary redundancy of the question, “Who owns our culture?” Culture, for both positions, is already possessed (by a community or an individual), and both Donna Karan and a Turkish video copier thus appear to their respective antagonists as illegitimate pirates attacking the very foundations of cultural vitality.

Both the “above” and “below” positions have long pedigrees in Euro-American law and philosophy, and tensions between them have long remained unresolved within this tradition. Legal instruments—most notably intellectual property legislation and statutes—attempt to balance the competing and equally universalist claims of users and authors/owners of culture. Article 1, Section 8 of the U.S. Constitution, for instance, asserts that the Senate has the right “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” In this eighteenth-century model, the social good resulting from progress and public access to valuable works of art and science is balanced against economic incentives deriving from the author’s limited monopoly over the work’s reproduction and circulation.

The U.S. constitutional solution to competing concepts of rightful ownership of cultural products has not, however, proved universally acceptable. Not only are the terms of the balance regularly contested within the U.S. framework, but also other legal traditions introduce outlying factors. French law, for instance, recognizes authors’ noneconomic moral rights; socialist countries have weighted communal concepts of all forms of property (including cultural properties) much more heavily than individualist concepts; and many non-Western legal systems begin with entirely different definitions of culture and property rooted in popular tradition.³ In the context of increasingly intimate global economic integration, then, these disparities between national laws have become extremely significant. And since many of the most valuable products in the new economy (such as information technology, film, popular music, pharmaceuticals, and genetically modified foods) are intellectual properties, the stakes in these international disputes are high. For this reason, when business groups and international administrative bodies alike call for harmonization of intellectual property rights regimes, conflicts over the ownership of culture become concrete conflicts over the mechanisms of the global economy.

At the same time, these conflicts often have a symbolic register as well—in which conflicts over the ownership of culture allegorize the assertion or distribution of geopolitical power. In particular, as my initial set of examples indicate, the political level of conflicts over ownership of culture often becomes especially intense along North-South axes and this pattern introduces the question of equity in a formation that we might understand as an emergent global empire.⁴ At this level, calling into question developmentalist theses associated with the critique of cultural imperialism, disputes over the ownership of culture can help us recognize some of the distinctive opportunities for social justice that accompany economic globalization.

Because the question of the ownership of culture has such powerful resonance for global politics and economy, it has also become entangled with the uniquely twentieth-century phenomenon of human rights, and thus it has become the business of international bodies such as the UN. Since the 1940s, human rights advocates have staked out important positions on intellectual property. The foundational documents of international human rights bodies all recognize intellectual property rights, and the World Intellectual Property Organization (WIPO, initially established in the 1880s to administer the Berne Convention treaties on copyright) was absorbed into the United Nations in the 1960s. In fact, spokespersons for the WIPO and the UN regularly describe intellectual property as a precondition for economic development, which in turn is described as a precondition for human rights.⁵

As demonstrated below, however, the human rights documents fail to resolve the fundamental conflicts over the initial relationship between culture and property. While treating ownership of intellectual property as an individual human right, the human rights documents also rely on a more collective right to culture. In statements from the 1940s, 1950s, and 1960s, this right to culture usually appears as an appeal to a universal cultural heritage, but since the 1970s, appeals to more localized “peoples’ rights” have also become common. While both proposals have their merits, neither offers a fully consistent and effective means for synthesizing the communal and individualist ideals.

In short, human rights documents reflect the profound conflict between competing universalist concepts of culture and property, a conflict that has intensified with recent waves of economic globalization. Human rights documents see culture as being both universal and belonging in principle to everyone, as well as alienable and particular and belonging for practical purposes almost exclusively to its individual creator—a definition in which creativity and individuality become the universal norms. Both of these incompatible positions are widely evident in human rights documents.

Human rights documents reveal this philosophical tension for the concrete historical reasons sketched briefly below. Most fundamentally, this conflict occurs because economic globalization does not integrate all national economies on an equal footing but instead allows—and probably requires—the uneven concentration of wealth and resources characteristic of previous phases of capitalism to continue. Philosophical conflicts reflect the conflicts between collective entities with different degrees of economic and political control over the production of the social totality, as well as registering the traces of previous attempts to negotiate such disparities. With this hypothesis to guide us, we can at least begin to see how the current wave of economic globalization reinvigorates historical tensions and reveals fissures in the legal or political instruments designed to negotiate those tensions. Instruments such as the human rights covenants are not in this account treated as universally or historically valid, though their language often presents them this way. Instead, I aim to reveal the way that human rights documents encode geopolitical conflicts even as they attempt to ameliorate those conflicts, and then consider briefly the consequences for practical politics of these theoretical conflicts. Starting with the problem of economic globalization helps us identify and evaluate the human rights conception of intellectual property—including the emergent and critical proposal that all peoples have the right to possess their “own” culture.

Human Rights Documents and Intellectual Property

The consistently principled theoretical documents articulating the basic structures of human rights repeatedly encounter conceptual difficulty on the topic of intellectual property. On the one hand, these documents often describe culture as nonproperty, as a universal common heritage; on the other hand, they also sometimes describe culture as necessarily bolstered by the assertion of individual property rights. However, in the last quarter of the twentieth century, some human rights documents began to describe cultures as communal but nonuniversal. This third emerging conception of culture has become a flashpoint for conflicts over concepts of property rights for tangible and intangible goods. Over the past fifty years, this third position has gained ground relative to the universalist and individualist models, though all the documents I have examined reveal traces of all positions. As a result, each document singly (and perhaps human rights discourse in toto) reveals unresolved contradictions about the universality of property rights. These contradictions are historical in nature and reflect the contradictory development of property relations in the latest phase of the global capitalist economy. From this historicist perspective, to identify contradictions is not to disparage the foundational documents of human rights or their authors. Instead, my goal in tracing contradictory ideas about culture, property, and humanity in human rights texts is to learn how historical contradictions have been encoded and might be redirected—if not resolved—by international organizations and activists. Historicizing supposedly universal positions need not produce the political stalemate of a legitimacy crisis, since this kind of analysis reveals political structures as terrains of human action and opportunity.

The Universal Declaration of Human Rights

To launch this discussion, it is necessary to begin with the Universal Declaration of Human Rights, the document adopted by the General Assembly of the United Nations in 1948 and generally considered the foundational document for the modern conceptions of human rights.⁶ Formulated in the wake of World War II, the Universal Declaration reflects efforts by the West—especially by the United States—to establish a balance of power favorable to itself. The document includes major efforts to prevent any resurgence of the race politics and aggressive sovereignty claims of the Axis powers, but it also reflects an emerging opposition to Western colonial powers, such as the UK, France, and Belgium. But perhaps most influential is the fact that the ideological battle lines of the Cold War led U.S. supporters of the United Nations and human rights more particularly to distinguish general principles of the Universal Declaration from concrete and binding methods for their implementation.⁷ In the interest of asserting and maintaining a hegemonic status in postwar geopolitics, the United States acted to curtail the most activist interpretations of human rights and of property rights in particular.

The United States found these efforts necessary because the goals of some of the drafters of the Universal Declaration of Human Rights, as individuals and as state representatives, diverged from U.S. interests. John Humphrey, a Canadian social democrat, was the individual responsible for originating much of the language of the Universal Declaration, and he preferred to interpret human rights in terms of human needs—including the needs of developing nations to control and claim ownership to natural resources, for instance. Humphreys was supported in this interpretation by the Latin American members of the drafting committee, but the French representative, along with the U.S. representative, required revisions and limitations to the needs argument.⁸ The Soviet influence on the early drafting of the Universal Declaration was reportedly limited; like the United States, the USSR favored nonbinding covenants in the early phases of discussion, although for different reasons. According to one recent analysis of participants’ geopolitical motives, the overriding goal of the USSR in the early years of the UN was to delink law from the state and thus...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgments
• Introduction: Observing Human Rights in an Age of Globalization
• Part I. The Struggle to Control the Human Rights Regime
• Part II. The Dynamics and Counterdynamics of Globalization
• Part III. Setting the Terms of Debate: Pursuing Global Consensus
• Conclusion: Reconstructing Human Rights in the Global Society
• About the Contributors
• Index