Law, Social Justice and Global Development Journal,
School of Law,
University of Warwick, UK.
This Editorial was published on 28 February 2005. Citation: Tan, C, 'Editorial', 2004 (2) Law, Social Justice and Global Development. <http://go.warwick.ac.uk/elj/lgd/2004_2/editorial>
This second issue of 2004 (2) comes belatedly at the start of the new year of 2005 due to unforeseen technical difficulties with our transition to our new website. The new URL address for our journal is: http://www.go.warwick.ac.uk/elj/lgd We hope you will be pleased with our new layout which encompasses much of our old design but looks and feels more streamlined. The new site for the Law, Social Justice and Global Development (LGD) journal uses Sitebuilder, an online editing software developed by the E-Lab team at the University of Warwick and it is hoped that this more user-friendly editing tool will enable the LGD to function more effectively as an Internet-based academic journal. The LGD and our sister journal the Journal of Information, Law and Technology (JILT) remain free-to-access for all users and we hope to welcome another new journal to our stable very soon (watch this space).
The 2004 (2) issue of the LGD kicks off with
Sebastian De Brennan’s critique of what he views as the polarising discourse prevailing in international legal theory today, as personified in the ‘Savage-Victim-Saviour’ metaphor that draws a dichotomy in human rights discourse between the liberal western state and the draconian non-west and which reduces the construction of international human rights regime into a means by which the west disciplines and rehabilitates the non-west. De Brennan argues that this approach to human rights fails to account for the universalism of the human rights corpus nor does it ‘accurately capture the diversity intrinsic to the human rights enterprise’ (p 7). While not dismissing the polarisation that exists in international law today - in the context of ‘North/South, East/West, EU/Non-EU’ divisions -De Brennan argues that critical scholarship on international human rights law must go beyond a simplistic and dichotomous construction of the postcolonial international legal order that ignores the evolutionary nature of human rights and the shifting nature of international law of states. An international law approach premised on the violence of colonial legal relations is at danger of itself falling into the trap of what De Brennan terms ‘reverse Orientalism’ and essentialist conceptions of the postcolonial nation state. This construction cannot address the multiplicity of voices that employ the conceptual and operational instrumentality of the human rights regime today, for example, in the realm of indigenous peoples’ rights where ‘[f]rustrations at working within the nation state have led some indigenous communities towards establishing international linkages and relations with other indigenous communities’ (p 8).
The theme of indigenous peoples is taken up by the following two papers in this issue. Both papers – by Hanri Mostert and Peter Fitzpatrick and Cheah Wui Ling – examine the two recent landmark cases in their respective jurisdictions – South Africa and Malaysia - in the context of the ongoing struggle for recognition of indigenous land rights in these countries.
Mostert and Fitzpatrick analyse the impact of the Richtersveld cases on the construction of aboriginal land title in post-apartheid South Africa. The dispensation of the claims by the Richtersveld community of the Namaqualand for restoration of ancestral land under the Restitution of Land Rights Act 1994 by the South African courts highlights the tensions inherent in the sovereignty of a new democratic state and the notion of what Mostert and Fitzpatrick call the ‘enduring sovereignty over territory’ of the indigenous peoples (p 3). The authors argue that the judicial construction of indigenous land title in the Richtersveld cases while ‘extending’ the ‘recognition’ of indigenous land rights nonetheless exposes the ‘depressing acceptance of sovereign arrogation, be it of a colonial or modern democratic nature’ (p 5). In reading the Richtersveld decisions, Mostert and Fitzpatrick find that the reluctance of the courts to go beyond the limited construction of the law of restitution (restoring land rights abrogated post-1913 through racially discriminatory practices) reflects a judicial and cultural schizophrenia with regards to proprietary and territorial claims under South Africa’s new land regime, demonstrating both a preoccupation with the coming-to-terms with the injustices of the apartheid era and a reluctance to address the potentially divisive complexities that will be raised in considering pre-colonial entitlement (p 9 – 10). In this way, the authors argue the marginalisation of indigenous peoples is sustained through the ‘continued subordination of indigenous land title to a law that originated from an initial act of violence, a territorial assertion of sovereignty’ (p 5).
Cheah Wui Ling also deals with the question of recognition of indigenous land title in her examination of a Malaysian high court’s decision in the case of Sagong Tasi v Kerajaan Negeri Selangor (Sagong Tasi v the State Government of Selangor). Here again, as in the previous paper, the author grapples with the conflict between a postcolonial land law regime and the conceptual framework of indigenous land rights. In this case, the state of Selangor high court recognised the existence of indigenous land title at common law in correspondence with developing legal and judicial trends in this area from other common law jurisdictions, but at the same time, sought to apply the compensation regime of the Land Acquisition Act, based on private land rights, on aboriginal land. Thus, while the Sagong Tasi case recognised the proprietary status of the Orang Asli vis-à-vis their land (where previously considered merely tenants-at-will of the Malaysian government), Cheah argues that the high court’s decision only represents a partial victory for indigenous peoples in Malaysia: ‘The consequences of applying to Orang Asli land, a piece of legislation intended to apply only to private registered title, results in the partial articulation of Orang Asli land rights’ (p 3). The author then sites the judicial developments in Malaysia in the wider context of the international framework of indigenous peoples’ rights and argues that while efforts to seek international legal protection for indigenous peoples worldwide set the standards for rights protection, the articulation of these rights remain confined to state boundaries and it is under these national legal spaces that the struggle for legal recognition continue to be fought as demonstrated by the Sagong Tasi case.
Sophie Kavanagh addresses the issue of rights and jurisdiction in a different context in her timely paper on the legality of reconstruction contracts in post-war Iraq. With the United States (US)-led war on Iraq declared as officially over and the Coalition Provisional Authority (CPA) having ceded control to the interim Iraqi government – the Iraqi Governing Council led by Prime Minister Iyad Allawi – and with the world awaiting the first election results, Kavanagh considers the legal uncertainty that is now characterising contracts to reconstruct the country. In particular, Kavanagh examines the legality of contracts awarded by the US government in the run-up to the war, during the occupation of Iraq and in the time period after cessation of major warfare, and of the contracts made by the CPA and non-Iraqi entities during this period: ‘The uncertainty lies in legal status of these contracts now that the occupation is over, especially in relation to contracts for Iraq’s natural resources …’ (p 6). This uncertainty is compounded by what Kavanagh views as the lack of transparency in the accounting of contracts awarded for reconstruction and other projects in Iraq by the US government agencies, and examines these contracts in light of international and domestic US regulation governing public procurement.
Our fifth paper by Grace Tsai discusses a very pertinent issue of our times – the question of old age maintenance. The author reflects upon the question of what constitutes elderly maintenance in Taiwan, a society that is caught between the dictates of a globalised legal order, where state law increasingly incorporates western constructions of legal relationships, but where the customary practice remains rooted in Confucian tradition. Using data drawn from research into the Taiwanese courts’ decisions on elderly maintenance, Tsai considers the intersection between Taiwanese state law and customary practice on the familial obligation to support the aged community in Taiwan. In particular, Tsai examines how the courts in Taiwan have sought to resolve the ‘conflict between the state law of old-age family support and customary practice of family partition’, or fen-chia, a custom derived from the formerly ‘juridical act of family fragmentation’ in which ‘new families were formed through the division of property’ with corresponding obligations (p 4 – 6).
In the last of our last peer-reviewed papers, Dan Hunter explores the future of intellectual property rights (IPRs) in relation to the rising backlash against the copyright and patents regime. Hunter conceives of the campaign to reclaim the public domain from the proprietary grasp of corporate interests as constituting a new ‘culture war’, a ‘a war over the means of production of creative content in our society’ (p 2), a phenomenon which is best understood through the prism of Marxist struggle. And yet, Hunter argues, the reformists of the IPR regime who advocate a global commons approach to copyright and patents policy do not constitute the site of this Marxist revolution, but rather, they offer a means through which the IPR regime could be contextualised within the realm of Marxist thought: ‘The intellectual property reform movement has provided the signal benefit of identifying the problems that occur with the relentless expansion of intellectual property interests. Without muscular social welfarist protection of the public domain intellectual property industries will never voluntarily reduce their expansionary claims’ (p 8). Instead, Hunter locates the site of resistance in the open source movement which rejects the ideological basis which the reformers embrace, arguing that ‘[u]nlike the copyright reform movement, the open source movement genuinely involves the transfer of the means of cultural and creative production from capital to the worker’ (p 11).
The challenge to orthodoxy is a theme that carries on in this issue in our selection of commentaries and reports. Jayna Kothari examines the constitutional significance of social rights in India, examining how Indian courts have treated claims by citizens against the state in relation to the meeting of basic social and economic needs. And lastly, we include a paper by Claude Alvares setting out the mission statement of the recently launched Multiworld Network, a network of scholars and activists in the south to reclaim the political space for intellectual challenge to the global hegemony of western scholarship and the homogenising effect of western pedagogy that re-empts endogenous development of intellectual creativity in the south.
We hope you enjoy this issue of the LGD and we look forward to your continued support of our journal. Keep your submissions and feedback on current and previous issues coming. Our next issue will be a Special Issue on Debt, Development and Finance guest edited by Daniel Bradlow from the Washington College of Law at the American University, Washington DC. Please send all submissions, queries and suggestions to Celine.Tan@warwick.ac.uk