Archives for category: continual struggle

close-the-gap

Although Aboriginal and Torres Strait Islander people comprise only about 3 per cent of the Australian population, they make up 28 per cent of the total prison population. This is an imprisonment rate 14 times higher than the non-Indigenous rate. Aboriginal people continue to die in custody – 270 people since the Royal Commission into Aboriginal Deaths in Custody Report (1991). Growing prison populations mean increased costs for taxpayers without breaking the cycle of offending. The system is not working to prevent crime and is not sustainable[1].The Australian Law Reform Commission Aboriginal Customary Law Report (1986) investigated Aboriginal customary laws and any basis for their recognition in the common law. The ALRC recommended that Aboriginal customary law should be recognized, in appropriate ways, by the Australian legal system, and that the recognition of such laws must occur within the framework of the general law[2]. While both the Aboriginal Deaths in Custody Report and the Aboriginal Customary Law Report advocated in favour of upholding the rights, both traditional and modern, of Indigenous Australians, neither reports’ recommendations have been properly administered or implemented so as to fully address the issue of Indigenous disadvantage. Therefore, almost thirty years after these expensively produced reports were completed, successive Australian governments have continued to fail the Indigenous population on whose country this nation was founded.

This travesty of justice continues to beleaguer courts across Australia, with judges having to make complex decisions using the only legislative tool available the Racial Discrimination Act 1975 (Cth). This leads to arbitrary decision making that in turn leads to expensive appeals processes in order to ascertain the correct form of justice available. An example of this is Walker v NSW (1994) 182 CLR 45, where the High Court considered whether customary law has an application in criminal law where there is no legislative basis. Mason CJ referenced the Racial Discrimination Act 1975 to declare:

It is a basic principle that all people should stand equal before the law. A construction which results in different criminal sanctions applying to different persons for the same conduct offends that basic principle (See Racial Discrimination Act 1975 (Cth), s.10)…And just as all persons in the country enjoy the benefits of domestic laws from which they are not expressly excluded, so also must they accept the burdens those laws impose[3].

It is this reference to the Racial Discrimination Act which is telling in Mason CJ’s ruling, as Part 1, Article 1.4 of the Schedule to that Act, being the international source of the Act itself, “The International Convention on the elimination of all forms of racial discrimination” plainly states:

Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved[4].

The Convention’s intent is to not just seek equality for all humans but also to enact equity for those who have suffered discrimination, and it is this UN Article that alludes to this intent. Special measures are needed in order to apply justice with an even hand. However, should this mean that customary law should be applied over criminal law in Australian courts? I will argue that, while the recognition of customary law may make the implementation of the law seem arbitrary, the recognition of socially reinforced disadvantage, particularly Indigenous disadvantage, is important to prevent the law being applied arbitrarily.

In the early 1990s the High Court upheld the native title rights of Indigenous Australians and the Native Title Act 1993 (Cth) was born. At about the same time Mason CJ declared that customary law had no place in Australian law and the Royal Commission into Aboriginal Deaths in Custody (RCIADC) released its recommendations. The cause of the Royal Commission was the intolerable amount of Indigenous people who had died in police custody in the preceding years. It is with interest that one can regard the recommendations of the RCIADC to ascertain almost three decades later whether processes have changed and what has worked.  With regard to the legal system, the Commission made many conclusions which have been completely ignored, especially by state governments. Some nineteen of these recommendations were:

That Police Services take all possible steps to eliminate:Violent or rough treatment or verbal abuse of Aboriginal persons, including women and young people, by police officers; and the use of racist or offensive language, or the use of racist or derogatory comments in log books and other documents, by police officers. When such conduct is found to have occurred, it should be treated as a serious breach of discipline. (2:223)

That all Police Services review their use of para-military forces such as the New South Wales SWOS and TRG units to ensure that there is no avoidable use of such units in circumstances affecting Aboriginal communities. (2:223)

That governments and Aboriginal organisations recognise that the problems affecting Aboriginal juveniles are so widespread and have such potentially disastrous repercussions for the future that there is an urgent need for governments and Aboriginal organisations to negotiate together to devise strategies designed to reduce the rate at which Aboriginal juveniles are involved in the welfare and criminal justice systems and, in particular, to reduce the rate at which Aboriginal juveniles are separated from their families and communities, whether by being declared to be in need of care, detained, imprisoned or otherwise. (2:252)

That police services should monitor the effect of legislation which decriminalises drunkenness with a view to ensuring that people detained by police officers are not being detained in police cells when they should more appropriately have been taken to alternative places of care. The effect of such legislation should be monitored to ensure that persons who would otherwise have been apprehended for drunkenness are not, instead, being arrested and charged with other minor offences. Such monitoring should also assess differences in police practices between urban and rural areas. The results of such monitoring of the implementation of the decriminalisation of drunkenness should be made public. (3:29)

The use of offensive language in circumstances of interventions initiated by police should not normally be occasion for arrest or charge. Police services should examine and monitor the use of offensive language charges. (3:29)

That all police services should adopt and apply the principle of arrest being the sanction of last resort in dealing with offenders. Police administrators should train and instruct police officers accordingly and should closely check that this principle is carried out in practice. Administrators of police services should take a more active role in ensuring police compliance with directives, guidelines and rules aimed at reducing unnecessary custodies and should review practices and procedures relevant to the use of arrest or process by summons and in particular should take account of the following matters. That all possible steps should be taken to ensure that allowances paid to police officers do not operate as an incentive to increase the number of arrests. That a statistical data base should be established for monitoring the use of summons and arrest procedures on a Statewide basis noting the utilisation of such procedures, in particular divisions and stations. Also, the role of supervisors should be examined and, where necessary, strengthened to provide for the overseeing of the appropriateness of arrest practices by police officers. That efficiency and promotion criteria should be reviewed to ensure that advantage does not accrue to individuals or to police stations as a result of the frequency of making charges or arrests. That procedures should be reviewed to ensure that work processes (particularly relating to paper work) are not encouraging arrest rather than the adoption of other options such as proceeding by summons or caution. That governments, in conjunction with police services, should consider the question of whether procedures for formal caution should be established in respect of certain types of offences rather than proceeding by way of prosecution. (3:42).

That in jurisdictions where motor vehicle offences are a significant cause of Aboriginal imprisonment the factors relevant to such incidence be identified, and, in conjunction with Aboriginal community organisations, programs be designed to reduce that incidence of offending. (3:71)

 That legislation in all jurisdictions should provide that where an Aboriginal defendant appears before a Court and there is doubt as to whether the person has the ability to fully understand proceedings in the English language and is fully able to express himself or herself in the English language, the court be obliged to satisfy itself that the person has that ability. Where there is doubt or reservations as to these matters proceedings should not continue until a competent interpreter is provided to the person without cost to that person. (3:79)

That, in the first instance, proceedings for a breach of a non- custodial order should ordinarily be commenced by summons or attendance notice and not by arrest of the offender. (3:80)

That it be recognised by Aboriginal Legal Services, funding authorities and courts that lawyers cannot adequately represent clients unless they have adequate time to take instructions and prepare cases, and that this is a special problem in communities without access to lawyers other than at the time of court hearings. (3:91)

 That State and Territory Governments examine the range of non-custodial sentencing options available in each jurisdiction with a view to ensuring that an appropriate range of such options is available. (3:96)

 That adequate resources be made available to provide support by way of personnel and infrastructure so as to ensure that non-custodial sentencing options which are made available by legislation are capable of implementation in practice. It is particularly important that such support be provided in rural and remote areas of significant Aboriginal population. (3:96)

 That Corrective Services authorities ensure that Aboriginal offenders are not being denied opportunities for probation and parole by virtue of the lack of adequate numbers of trained support staff or of infrastructure to ensure monitoring of such orders. (3:117)

That governments consider introducing an ongoing amnesty on the execution of long outstanding warrants of commitment for unpaid fines. (3:126)

Where legislation does not already so provide governments should ensure that sentences of imprisonment are not automatically imposed in default of payment of a fine. Such legislation should provide alternative sanctions and impose a statutory duty upon sentencers to consider a defendant’s capacity to pay in assessing the appropriate monetary penalty and time to pay, by instalments or otherwise. (3:126)

That the Department of Education, Employment and Training be responsible for the development of a comprehensive national strategy designed to improve the opportunities for the education and training of those in custody. This should be done in co- operation with state Corrective Services authorities, adult education providers (including in particular independent Aboriginal-controlled providers) and State departments of employment and education. The aim of the strategy should be to extend the aims of the Aboriginal Education Policy and the Aboriginal Employment Development Policy to Aboriginal prisoners, and to develop suitable mechanisms for the delivery of education and training programs to prisoners (3:353).

 That prisoners, including Aboriginal prisoners, should receive remuneration for work performed. In order to encourage Aboriginal prisoners to overcome the educational disadvantage, which most Aboriginal people presently suffer, Aboriginal prisoners who pursue education or training courses during the hours when other prisoners are involved in remunerated work should receive the same level of remuneration. (This recommendation is not intended to apply to study undertaken outside the normal hours of work of prisoners.) (3:357)

That police administrators give police officers greater encouragement to proceed by way of caution rather than by arrest, summons or attendance notice. That wherever possible the police caution be given in the presence of a parent, adult relative or person having care and responsibility for the juvenile. Also, that if a police caution is given other than in the presence of any such person having care and responsibility for the juvenile such person be notified in writing of the fact and details of the caution administered. (4:184)

 That where an Aboriginal juvenile is taken to a police station for interrogation or as a result of arrest, the officer in charge of the police station at which the juvenile is detained should be required to immediately advise the relevant Aboriginal Legal Service and the parent or person responsible for the care and supervision of the juvenile of the fact of the child being detained at the police station (without prejudice to any obligation to advise any other person). (4:203)

That no Aboriginal juvenile should be interrogated by a police officer except in the presence of a parent, other person responsible for the care and supervision of the child or, in the absence of a parent or such other person, an officer of an agency or organisation charged with responsibility for the care and welfare of Aboriginal juveniles. (4:203)

 That legislation, regulations and/or police standing orders, as may be appropriate, be amended so as to require compliance with the above recommendations. (4:205)

According to the Human Rights Commission both state and federal governments have done little to implement the Royal Commission’s recommendations and, due to this, the percentage of Indigenous people incarcerated in Australian prisons has increased exponentially in proportion to the rest of the population[5]. It would seem that the recommendations would have done much to assist the intention to prevent this increase and yet many governments, such as the Northern Territory’s administration, have actually brought in more pernicious laws such as mandatory detention which have exacerbated the problem. Mandatory detention takes the responsibility of a judge to determine justice and puts it in the hands of politicians trying to gain popularity with a majority. This, in itself, is fundamentally against the intentions and objectives of the “International Convention on the elimination of all forms of racial discrimination”, has had an overwhelming negative effect on Indigenous people, and is a serious indictment on Australia’s performance as an international actor.

Just after the RCIADC, the Supreme Court of NSW had sought to implement the objectives of the UN Convention in R v Fernando (1992) 76 a crim r 58 and try and to address these problems judicially. The Fernando principles underpinned a direction in sentencing that framed jurisprudence on the relevance of Aboriginality, alcoholism and disadvantage. The principles provided for lighter sentences that reflected the Indigenous offender’s reduced moral culpability and promote non-custodial sentences in light of over-representation in the prison system. However, it could be argued that only having a judicial approach to social justice reinforces stereotypes and that it is only through structural reform within the larger society, as set out in the Royal Commission’s findings, that a more genuine sense of justice can be achieved.

Advances in neuroscience have led criminologists to assert that offender autonomy is an assumption based upon a fallacy of free will[6]. As the political philosopher John Rawls claimed, we are not in control of the situation to which we are born and therefore being born into strong social disadvantage is something that is difficult to overcome[7]. It relies upon the availability of opportunity and societal good will. This is reflected in the Convention and has led courts to be more lenient of disadvantaged offenders to redistribute their burdens. When courts fail to consider such inequalities the disadvantaged are given sentences disproportionate to their culpability. Widening social inequalities also limit offenders’ choices and so justice would also demand that society acknowledge responsibility for such economic hardship and assist the offender in sentencing. This last assertion should also require that society be active in alleviating hardship and suffering within the community and address political policy and legislation towards this purpose. Further programs of rehabilitation and reintegration in lieu of imprisonment could reform and improve the position of the offender.

While the principles in Fernando continue to be advocated on behalf of Indigenous defendants, Australian courts since the late 1990s have confined who can be classed as Indigenous for the purposes of applying those principles. Increasingly in court decisions, it regards the identity and community ties of Indigenous offenders as being washed away by time and urbanization.  This results in further discrimination as to deciphering what is being ‘Aboriginal enough’, and considering  all remote Indigenous communities as being dysfunctional and in need of activating the Fernando principles. Therefore, while harsher penalties are meted out to those that are considered to have been re-advantaged through time, the arbitrariness in the way the Fernando principles are enacted and the judicial view of the Indigenous community is managed impels a rethink of how social justice can be better achieved through transformative techniques. To continue to rely upon judicial or political magnanimity and mercy is relying upon the whims of the Anglo-Australian legal order, thereby reinforcing discrimination and continuing the overrepresentation of Indigenous people in prisons.

The Australian Law Reform Commission in its report on Aboriginal Customary Laws[8] found that judicial recognition did not project Aboriginal community concerns, and that a greater degree of local control over community-identified crime problems would be more effective. It is a pluralist strategy that responds to the circumstances of the individual Indigenous community. Where Indigenous laws bind communities the processes directed to punishment can be a legitimate method for mediation and resolution between victims, perpetrators and the rest of the community. An example of this is the acceptance of the Warlpiri Elders who conveyed their acceptance of Anglo-Australian court processes, so long as ‘traditional’ punishment can be carried out to reconcile their community[9].

 

When social justice is considered by the wider community to be applied simply through more lenient sentencing for Indigenous offenders this only reinforces the white racial illusion which presents itself as tolerant and understanding but is merely a means of controlling an Indigenous population. This type of affirmative action is prone to disintegrate in the face of other norms such as courts falling back on the position that Indigenous offenders are to be treated equally to other offenders through refusal to recognize Indigeneity. There is also the further injustice and institutional subordination of determining Indigenous communities as dysfunctional in order to aggravate sentences and condemn the community. Recently, the High Court addressed the issue of the whether courts should take into account unique circumstances of Aboriginal offenders and the high rate of incarceration of Aboriginal Australians when sentencing Aboriginal offenders in Bugmy v The Queen [2013] HCA 37.

In Bugmy, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ. expressed that a deprived background may mitigate a sentence for an Indigenous offender in the same way that it does for a non-Indigenous offender. They quoted Simpson J who in Fernando explained the significance of the statements in Fernando:

“Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime.”

 In concluding, the High Court held that the same sentencing principles apply irrespective of the identity of a particular offender or his or her membership of an ethnic or other group. Additionally, the joint reasons held that the effects upon an offender of profound deprivation do not diminish over time and should be given full weight when sentencing the offender. However, the judgment also went on to declare that those effects do not necessarily serve to mitigate an offender’s sentence given the conflicting purposes of punishment, such as rehabilitation and personal and general deterrence, which must be balanced in each individual case.

Even taking into account the High Court decision in Bugmy to renew the principles in Fernando, this approach to convicting and sentencing Indigenous people still leaves the situation where the incarceration rates will keep increasing, and does not address the issues and recommendations of the RCIADC. Alcohol is not just an issue in Indigenous communities anymore, methamphetamine and petrol sniffing is also causing a scourge of destruction and damage. The increase in youth suicides in some communities is substantial which leaves the necessity to implement policies that reflect those recommendations as an imperative.

Currently, state and federal governments must address transparently their goals of reducing the health gap between Indigenous and non-Indigenous Australians in a bipartisan program called Close the Gap[10]. Yet it seems another program to be at the mercy of competing political ideologies, as were the other costly reports and recommendations that failed to be translated into legislation and dependent upon the budget allocations of successive changing government administrations. A consultative approach to Indigenous affairs is one of the main bridges to achieving these goals, as was pointed out in the Royal Commission’s findings. Therefore, while it is good that the High Court has again implemented the principles of sentencing by Wood J in Fernando, such an approach is ad hoc and needs the Australian community to commit to instigating social programs that are not politically ideological but those that have been recommended by Indigenous groups, are known to work and are protected by legislation that adheres to the objectives of the “The International Convention on the elimination of all forms of racial discrimination”.

 

[1] http://antar.org.au/campaigns/justice-campaign

[2]http://www.alrc.gov.au/publications/Recognition%20of%20Aboriginal%20Customary%20Laws%20%28ALRC%20Report%2031%29/37-summary-recommendations

[3] Walker v NSW (1994) 182 CLR 45

 

[4] http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/

[5] https://www.humanrights.gov.au/publications/indigenous-deaths-custody-report-summary

[6] Green and Cohen, (2004), For the law, neuroscience changes nothing and everything, Princeton University, Princeton

[7] Rawls, J. 1972, ‘An Egalitarian Theory of Justice’, extracts from A Theory of Justice, reprinted in Tom Beauchamp & Norman Bowie (eds.). Ethical Theory and Business, 6th edition, (Prentice Hall, 2001)

[8] http://www.alrc.gov.au/publications/report-31

[9] Anthony, Thalia. Is there social justice in sentencing indigenous offenders [online]. University of New South Wales Law Journal, The, Vol. 35, No. 2, 2012 563-59

[10] http://www.naccho.org.au/aboriginal-health/close-the-gap-campaign

Above image: https://nacchocommunique.files.wordpress.com/2013/02/close-the-gap.jpg

9780385720274_p0_v1_s260x420
Amatya Sen claims that ‘capabilities’ provide the relevant evaluative space for understanding equality. However Sen’s theory has been criticised on the grounds that it does not provide sufficient specification of which functionings and capabilities are valuable. This essay investigates the capabilities theory with reference to this kind of criticism and finds that, on the basis of its reliance upon universal values of liberty and autonomy,  Martha Nussbaum’s development of capabilities theory could provide a possible framework for specifying valuable functionings and capabilities.
The capabilities approach is dependent upon the evaluation of those particular functionings that are concerned with the value of life. In the study prepared for the United Nations, Amartya Sen put forward the argument that the capability approach is an improvement on other theories of justice, such as utilitarianism, Rawlsian egalitarianism and libertarianism because it uses other informational focuses to consider social advantage (p.30). The main criticism of Sen’s approach is that it is considered vague in that it does not provide sufficient specifications as to what he thinks are valuable. Martha Nussbaum has taken Sen’s capability approach and put what she argues are universal and concrete values upon it, allowing it to become a theory of justice rather than simply an evaluative space for reckoning what values we should hold.

 SEN’S EVALUATIVE SPACE

Sen posits that his approach relies upon the functional states through which one can achieve quality of life. These include such functionings as being adequately nourished, having good health, and are functionings which would be obviously considered values by all. However, other functionings may be more complex but just as widely valued, such as belonging to a social group.  Sen stresses that, although individuals may differ in what they assess as valuable, it is important that these differences are acknowledged when assessing the capabilities that can be derived from these varied functions (Sen, 1993, p.31).

Therefore, Sen (1993, p.32) states that two necessary questions must be asked to evaluate these differing values:

1)      What is the object of the value?

2)      How valuable are the respective objects?

To identify the object of the value entails specifying what Sen terms as ‘the evaluative space’. For utilitarians this is usually defined as happiness or pleasure, whereas the capabilities approach entails identifying the evaluative space in terms of an individual’s capability to function. In this way the capability approach uses evaluative space to allow for a variety of human actions that are ends in themselves rather than means of living or freedoms, such as amounts of income, wealth, or resources etc. (1993, p.33). For Sen, when it comes to questions of freedom of choice then the criteria to be assessed must be linked to the evaluation of the range of capabilities that are open (1993, p.35).

An interesting point that Sen makes about the association of an evaluation of capabilities with freedom is that a person may have the advantage of more freedom than another but it may still result in her achieving less. For example, a person may have access to a capability such as a good education system but for reasons of personal characteristics, such as laziness or distraction, still not bother to achieve their best within it (1993, p.34). Therefore, Sen breaks down these associative values of human advantage as being:

1)      well-being achievement through the promotion of a person’s well-being;

2)      individual achievement through the pursuit of one’s goals; which result in:

3)      well-being freedom

4)      individual freedom (1993, p.34)

For Sen, the well-being of a person becomes an evaluation of the ‘wellness’ of that person rather than an evaluation of their contribution to the state or their success in reaching their goals. In this case, the functionings of the person will be comprised of the four elements above. With regard to this, the functionings of a person appear fundamental to the nature of their well-being, even if they are sourced externally from the person themselves, such as through the fulfilment of helping someone else (1993, p.36).

The functionings that assist well-being vary from the elementary, such as life-expectancy, to the complex, such as being a valued member of the community. The success of the agency of a person requires a broader assessment that can be narrowed to the evaluation of a standard of living to the broader sense of political freedom. It can even be said that the broader sense includes injuries to others, especially loved ones. These things all contribute to the success of someone developing an ability to be happy or the development of their well-being (1993, p.37).

An important thing to note is that, in Sen’s concept of evaluative space, capabilities are derived from functionings. The concepts of well-being and living standards belong to the assessment of functioning rather than capabilities. Therefore a capability is set in the space of functionings (1993, p.38). This calculus model can be used to assess basic needs and is crucial to the identification of capabilities. Sen states that an income-derived concept of poverty can be quite misleading when evaluation allows discrepancies in functionality. This is because the ‘poverty line’ in a developing nation may be quite distinct from that of developed nations (1993, p.40). Sen sees the most advantageous role of the capability approach being the ability to assess varied objects of value, rather than the utility-based approach of happiness or desire fulfilment as being the only value. It also does not place primary goods or resources as value objects, as do the Rawlsian and Dworkinian models (1993, p.44).

Sen (1993, p.49) thinks that it is in its plurality of purpose that that the capability approach works best, especially with regard to well-being and agency. This is especially relevant when judging standards of living and its particular usability lies in its egalitarian calculus that is dependent upon the truth of seeing individual advantages in capabilities and therefore its relevance to other sorts of social evaluation. In having the ability to assess the particular space for the evaluation of opportunities and successes of individuals, Sen asserts that the capabilities approach is an important addition to other theories of justice (1993, p.50).

NUSSBAUM’S UNIVERSAL APPROACH TO THE EVALUATIVE SPACE

Nussbaum takes Sen’s abstract mathematical calculus of functionings and put them into concrete terms through which constitutional guarantees can be drawn in civil society. This is Nussbaum’s universal approach (Nussbaum, 2000, p.70). Through applying concrete concepts Nussbaum breaks down standard theories of justice into questions that show how the capabilities approach can change someone’s life. The central question for Nussbaum is: “What is Vasanti actually able to do and to be?” The answer to this question is sought rather than the utilitarian approach: “How satisfied is Vasanti?”; or the  Rawlsian/ Dworkinian: “How much in the way of resources is Vasanti able to command? (2000, p.71)” For Nussbaum, the priority is to measure quality of life so that capabilities can match functionings. The next thing to do is to argue that if people fall below a functioning threshold that is necessary for justice then it should be considered urgent in terms of the injustice it creates (2000, p.71).

Nussbaum’s criteria is based upon the intuitive concept that particular functions are universal in human life and that it is these functions that separate us from other animals. Using the philosophy of Marx, she argues that humans need to be cultivated through education, leisure and self-expression, and also through socialisation with others. Nussbaum adds to this liberty of thought and association, as well as freedom of religion or worship, being fundamental to human autonomy (2000, p.72). A person has activities, goals and projects that are above the needs of nature and need support to fulfil these ideas. The essential element of this is that capabilities are sought for the individual, not groups or states or corporations. These entities can be valuable as means to ends but the well-being of the individual is the end itself (2000, p.74).

Nussbaum states that a list of concrete functionings cannot be a theory of justice however it does advise on what will be a minimum of social justice. She also adds that they could be adjusted to suit the various cultures that they encompass (2000, p.75). Nussbaum’s list of capabilities is a list in which all of the elements are distinct and equal in importance. She gives the example of the absence political rights not being able to be compensated by great economic growth (2000, p.81). Nussbaum states that the capabilities that go with these functionings are of three different types:

1)      Basic capabilities- innate equipment necessary for developing more advanced capabilities and morality, such as the capability of love, gratitude, reason and work;

2)      Internal capabilities- maturity, language, political reasoning, socialization, freedom of speech or religion; and

3)      Combined capabilities- where the environment is prepared so that individuals are able to exercise their major functionings (2000, p.85).

There is also a distinction between internal and combined capabilities in that when there is a sudden alteration in the environment in which the individual is placed, perhaps they have had to flee or migrate to another country, then they may not be able to enact their functionings. Nussbaum gives the example of a child who has never experienced freedom of speech or thought and is not able to develop the same capabilities as someone who was raised in a nation that protects these liberties. Nussbaum focuses on a social minimum of these capabilities as suitable for a system of justice (2000, p.86).

With regard to individual liberty and autonomy being safeguarded in such a system, Nussbaum states that it is important to note that ‘capability not functioning is the appropriate political goal (2000, p.87)’. This appears to coalesce with Sen’s evaluative space, where capabilities are derived from functionings. Nussbaum points out that the capabilities approach is much like Rawls’ notion of primary goods, but the difference between the capabilities approach and Rawls theory of justice is that it does not consider wealth and income as goals or ends, more a reliance upon Rawls’ natural goods such as ‘health, vigour, intelligence and imagination’ (2000, p.89). Capabilities are the things needed for functioning such that any rational being would want them. Even if one does not make use of all of them then no harm has been done if they had the choice (2000, p.88).

However, Nussbaum also states that it is important that capabilities such as bodily integrity may be regulated so as not to undermine the functionings of an individual. Although this may be seen as paternalistic it is perhaps synonymous with illegal contracts in that health and bodily integrity are so important to capabilities and functioning that there can be legitimate interference with choice up to a point (2000, p.95). This does seem to call into question whether Nussbaum would allow such choices as being a sex worker in her system of justice, but she does state that such decisions can be left to the democratic process in each nation (2000, p.95). Nussbaum also states that her list is not meant to be an exhaustive account of what is worthwhile in life and is a facilitation list rather than a tyrannical one (2000, p.95). Nussbaum contends that the political purpose of these capabilities is human well-being. She quotes Sen: ‘Political rights are important not only for the fulfilment of needs, they are crucial also for the formulation of needs. And this idea relates, in the end, to the respect that we owe each other as fellow human beings.’ (Sen, 1994, p.38)

Therefore Nussbaum sees her list of functioning capabilities as being closely aligned with universal human rights. They are quite similar to those initiated and enshrined in the Universal Declaration of Human Rights (UDHR) that was ratified in 1948, and have been used by many different peoples to assert justice. One of members of the drafting subcommittee of this document stated: “I perceived clearly that I was participating in a truly significant historic event in which a consensus had been reached as to the supreme value of the human person, a value that did not originate in the decision of a worldly power, but rather in the fact of existing—which gave rise to the inalienable right to live free from want and oppression and to fully develop one’s personality”.(U.N. n.d.) Nussbaum’s list is intended to give fundamental access to capabilities in order to provide a stable society, which was also the intent of the UDHR. Nussbaum argues that these are not only Western notions of rights: “Ideas of activity and ability are everywhere, and there is no culture in which people do not ask themselves what they are able to do, what opportunities they have for functioning (2000, p.100)”. Considering that what differentiates humans from other animals is their need to realise their ideas, whether they be social, creative, technological, or scientific, it seems that Nussbaum’s argument about the universality of her functional capabilities is valid.

Rather than being a strict theory of justice, Sen’s capability approach has the ability to allow a framework that is both accommodating and adaptable. It has the ability to assess individual well-being and evaluate social arrangements so that policies may be designed that can enact just social change. Through being a practical guide it can inform citizens and governments of the directions that may provide desirable outcomes. While criticisms of Sen’s approach state that it is unclear about how it can be extended into a theory of justice, his non-commitment to single distributive rule allows his notions of functionings and capabilities to be a formula for an evaluative space through which justice may be approached. Nussbaum’s transfer of Sen’s evaluative space into a concrete list of functioning capabilities is comprehensive and is not limited to single-types of social systems but holds true for all human beings. Therefore both Sen’s formulaic approach and Nussbaum’s sufficient account of social justice could be used together to provide a constitutional guarantee of human rights.

REFERENCES:

  1. Nussbaum, M 2000, Women and Human Development: The Capabilities Approach, University of Chicago pp. 70-101
  2. United Nations (n.d.), Universal Declaration of Human Rights, viewed 5 April 2013, http://www.un.org/en/documents/udhr/index.shtml
  3. United Nations (n.d.), Universal Declaration of Human Rights: History of the Document, viewed 5 April 2013, http://www.un.org/en/documents/udhr/history.shtml
  4. Sen, A 1993, ‘Capability and Well-Being’, in M. Nussbaum & A. Sen (eds),The Quality of Life, Clarendon Press, Oxford pp. 30-52
  5. Sen, A, 1994, ‘Freedom and Needs’, The New Republic, January 10/17, pp. 31-38

The Captives, 2010, egg tempera, pigment and mixed media on board

Look, Glaucus, the broad-backed combers

are running high, storm clouds black out

Gyrae’s peak, and around my heart

a fear that rises from the unforeseen.  

ARCHILOCHUS

 

ANAKRONOS

In his novel Freedom and Death, Nikos Kazantzakis describes the revolutionary war fought against the Ottoman Turks in late 19th century Crete. He wrote about a small iconographic image of an emaciated woman, covered in blood, with her children clinging to her legs. It was this imagery that initially inspired the central figure in this nine panel granite frieze. However, I did not want my hero to be pitied; I wanted her to be feared. So I went back to the description of Athena- the warrior goddess, and clothed her in all her ‘daedalic’ glory. Her breasts are confrontational; her gun, a replacement for the sword; a belt of shot placed around her hips. This woman is not emaciated, she is an emancipator.

To Axion Esti is Odysseus Elytis’ evocation of eternal Greece, his experience of the Second World War and its aftermath, and his celebration of human life. Elytis won the Nobel Prize in 1979 for his poetry which, against the background of Greek tradition, depicts the sensuous strength and intellectual clarity of a modern human’s struggle for freedom and creativity. It was the poem To Axion Esti that was an essential element in the work Anakronos. 

Finally, the composer Mikis Theodorakis, one of the giants of contemporary Greek arts, has been the mainstay of my work. His choral symphony of To Axion Esti is a sublime interpretation designed to urge humans to be their greater selves. The primal link between each of these great people is one that reaches back to the ancient past of Euripides, Socrates and Pythagoras, and endeavors to propel us into the future. Anakronos, therefore, is a message for the individual to resist totalitarianism of any kind. 

Nicholas Georgouras 2010

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J.E.Thomas. “Lament”, (2006), 160cm x 120cm, oil on canvas

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Judy Watson

touching my mothers blood 

1988 etching and black ink

A New York University academic, Fred R. Myers states that an intractable problem with Aboriginal art is that while it exists outside the art system the more it is valued. However, once it is in the art system unprepared viewers do not know how to respond to it because, without the information they receive in an ethnographic museum, they cannot relate it to other contemporary art. They cannot see an informed consensus providing the basis for the work (Myers 1998). This retrogressive view of the adaptability of Aboriginal art is fortunately not the way it is viewed within the Australian contemporary art world. Changing attitudes have allowed both remote and urban artists to benefit from a growing popular interest. Aboriginal artists have extended the parameters of how their art is viewed, and this has allowed them to present their work in new contexts such as installation art and photography. This essay will explore the background to the advent of the careers of the artists Gordon Bennett, Robert Campbell Jnr, Fiona Foley, Tracy Moffatt, Lin Onus and Judy Watson. It will also explore how these artists have contributed to change through their work.

By the 1970s, viewing Aboriginal art through a primitive paradigm was becoming unpopular. New ways were being developed to look at global arts and liberate them from the pigeon holes of Western art history. An exhibition in Paris in 1989, Magiciens de la Terre, attempted to challenge primitivist paradigms by showing the work of fifty artists from the West together with a similar number of artists from non- Western traditions. The exhibition presented all the artists as ‘contemporary’ with an example being a huge mud circle painted on a wall by the British environmental artist Richard Long, alongside a ground sculpture by a group of Aboriginal artists from the Yuendumu community in Central Australia (Morphy 1999).

The background to this exhibition began in the early 1980s when, for the first time, Aboriginal artists were included along with other contemporary white artists in the Sydneyexhibition of Perspecta 1981. In 1983, the Musee d’Art Moderne in Paris exhibited a large ground painting made by twelve Warlpiri men from the Lajamanu community. The ground painting’s ephemeral quality reflected the exhibition’s theme of Dream and Reality. It also created an avant-garde interest because it was an ephemeral ‘dematerialized’ art object and was considered to follow on the legacy of avant-garde challenges to mainstream expectations of an object-orientated art world (Myers 1998). However, although the recognition of Aboriginal art as being contemporary rescued it from being marginalised, it was only the art of remote communities in the north and centre ofAustralia that were achieving recognition. The art of the south that was being done by Aboriginal people in urban and rural areas remained unrecognized in what W.E.H. Stanner called ‘the great Australian silence’ (Morphy 1999).

Although Aboriginal artists in south-eastern Australiacontinued to produce art and craftworks, and some such as Ronald Bull (1942- 79) gained a reputation in the art world, they were negatively viewed as either producers of tourist art or, if they were mainstream contemporary artists, as being assimilated into Western culture. In 1993 the Aratjara Exhibition that touredEurope attempted to rectify the situation. The curators adopted the broad conception of Aboriginal art because, as the art historian Ian McLean notes, it was ‘not until 1990 were there signs of an institutional shift towards the inclusion of urban Aboriginal artists’ (Morphy 1999, p.378). Many of the artists included in this exhibition had been developing from the 1970s onwards in the art world and art schools of urbanAustralia. They drew their inspiration from many different sources reflecting the diversity of their backgrounds. Many found inspiration through personal pilgrimages back to the country of their forebears or in visiting fellow artists in remote communities (Morphy 1999).

Dijon Mundine facilitated communication between Aboriginal artists in the south-eastern states and those in Central Arnhem Landcreating ‘an environment of shared experiences in which mutual understanding developed’ (Morphy 1999, p. 392). Some of the artists that visited Arnhem Landduring this time were Campbell, Fiona Foley (b.1964) and Gordon Bennett (b. 1955). Bennett, a Brisbane-based artist, says that his paintings are ‘an ethnography of representation’ (Morphy 1999, p.399). He characteristically uses a representational system to draw complex analogies between Western art history and the colonial domination of Aborigines. In Outsider (1988) he uses Vincent Van Gogh’s Bedroom at Arles (1889) to show a headless Aboriginal person standing over a bed with two classical heads lying upon it. This postmodernist appropriation seems to challenge both his understanding of his formal art education and his sense of identity within that framework.

After graduating in 1988 with a Bachelor of Fine Arts degree, Bennett had first major solo exhibition in 1989 and has since achieved critical acclaim. He continues to engage his work in questions of cultural and personal identity (National Gallery of Victoria 2008). He describes this personal journey: “I was socialized into a Euro-Australian system of representation which included an art school education. However, my approach to aesthetics is to seek to extend my concepts of it and by extension to expand my concepts of representation’ (Morphy 1999, p.403). His paintings include much graphic detail, narrative, words, grids and commercial logos During the 1990s his  Home Décor series uses the aesthetics of the De Stijl art movement to depict stylized Aboriginal figures, (appropriated from the work of 1940s print artist Margaret Preston), as decorative artefacts entrapped upon a Modernist grid. After travelling toNew York in 1998, he developed a street-style appropriated from the 1980s neo-expressionist Jean-Michel Basquiat to convey the graffiti of racial and political activism.

The complex nature of the influences and history that involves much contemporary Aboriginal art is exemplified in the work of Fiona Foley. After graduating from the SydneyCollegeof the Arts in 1986, Foley, along with other ‘urban’ artists such as Tracy Moffatt, Bronwyn Bancroft and Michael Riley, was a founding member of the Boomali Aboriginal Arts Cooperative in Sydney. She has worked in many different types of media and became well-known for her collaboration with the artist Janet Laurence on the installation The Edge of Trees (1994) for the Museum of Sydney (Allas 2008). Drawing on other Aboriginal art forms, Foley’s work becomes a commentary on the history of racism and oppression. The sculpture The Annihilation of the Blacks (1986) looks much like Fish on Poles (1962) an Aurukun sculpture that formed the focal point for a ceremonial dance. Foley’s sculpture, rather than being hunted fish, show dead bodies of Aboriginal people being hung upon poles. Also, in 1996 she made a ground sculpture much like traditional ground sculptures. Using flour as a material signified its importance in subjugating Aboriginal people in the nineteenth and twentieth centuries. Foley’s photographic work, such as Native Blood (1994), explores the Western representational genre through photographing herself as an ‘erotic primitive’ (Morphy 1999). Again, like Bennett, she works from the position of postmodernism to change historical context.

The academic Chris Healy describes Foley as a witness; ‘her work is all about determined efforts of remembering- bearing witness to both specific instances and pan-Aboriginal experiences of colonialism- and refusing to remain silent’ (Healy 2003). Originally from FraserIsland, also the birthplace of the poet Oodgeroo Noonucal, her work brings a connection between art, Aboriginality, and place. Djon Mundine observed about her work; ‘this raw material- [is] a form of cultural memory- from FraserIslanditself… For Foley, this was an art practice carried out in a custodial role, a way of reclaiming the history of her people and their land’ (Healy 2003). In her piece Lie of the Land (1997), Foley lists the names of objects traded with Aboriginal people in the 1835 ‘treaty’ with John Batman. These words are engraved on seven sandstone slabs three metres in height and effectively records on giant headstones the objects which cost so many lives (Healy 2003).

While the urban Aboriginal art movement has grown in significance since the 1990s, the focus of it being somewhat marginalised has changed into it joining, without differentiation, to mainstream contemporary art. With this change, artists such as Bennett, Foley and photographer Tracy Moffatt (b.1960) insist on their recognition as artists not simply ‘Aboriginal artists’ (McCulloch 2001). Moffatt explores issues of race, history and gender through staged Surrealist photographs and films. Nice Colored Girls (1987) was a film that staged contemporary encounters between Aboriginal women and European men montaged with references to colonial history and racist attitudes (Morphy 1999).

Like Bennett and Foley, Moffatt was born in Brisbane, and took her first snapshots at the age of 13 in the backyard. These formed a series of coarse-grained off-set prints called the Backyard Series (1998), with one of the photos featuring a nativity scene played by children. Moffatt was adopted into a white family and these garden photographs reflect both the normality and surreal undercurrents which strain relationships in society. The film Night Cries: A Rural Tragedy (1989) is an ambiguous story about the relationship between an elderly white woman and her half-Aboriginal child (Versloot 2000). In a Moffatt wrote to theNew York curator Lynne Cooke she explained: ‘Making art is quite therapeutic, like chopping vegetables, it calms me and keeps me off the streets’ (Moffatt 1997). She went on to state how important it is to advance your art and be influenced by others; not to be scared of taking anything new. She also states that her influences were mainly women artists such asFrida Kahlo,Georgia O’Keefe and the photographer Anne Brigman (Moffett 1997).

Lin Onus (1948-1996), who was also introduced to the artists of Arnhem Land by Mundine, had a different background to Foley, Bennett and Moffatt. His art also grew from a personal pilgrimage, but he was born in Melbourne where his father was an Aboriginal entrepreneur and craftsman, and his mother was Scottish. Onus grew up in an atmosphere full of Aboriginal art and, although he had no art school training, by the age of seventeen his early paintings were being sold by his father. These paintings were landscape inspired by the work of Albert Namatjira (1902-59) and Ronald Bull. However, the late 1970s and early 1980s brought a change in his work inspired by Trevor Nickolls (b.1949), an Aboriginal artist who went to art school in the early 1970s and was exposed to a wide range of contemporary art. He then spent much time in Arnhem Land and was taught clan paintings by artists such as Jack Wunuwun and Johnny BulunBulun. He painted a series of portraits of these artists in a hyperreal style on a background of their own paintings.

Towards the end of his life Onus turned increasingly to sculpture, using parody as a theme. His group Dingoes (1989) are realistically formed but painted in ochred colours of the Aboriginal flag. The group illustrates the life cycle of a dingo and includes a dingo breaking through a dingo-proof fence which was, according to Onus,  ‘a commentary on the treatment of these native animals which in Aboriginal eyes approximates the treatment of Aboriginal people themselves’ (Morphy 1999, p.391). He also used three-dimensional installations to display his strong sense of irony and humour. Fruit Bats (1991), is an example of the cross-cultural references and meticulous detailing for which he became so well-known (McCulloch 2001).

Aboriginal art has now become part of the mainstream in contemporary art inAustraliaas it is collected by the same institutions, exhibited within the same gallery structures, and written about in the same journals. This has come about because of the struggle by Aboriginal artists to have their work incorporated rather than assimilated into the institutional structure. Artists such as Judy Watson (b.1959) show how the adaptability of Aboriginal art contributes to an overall push in it being judged on its aesthetic qualities rather than its story-telling properties (McCulloch 2001).

Watson uses painting, sculpture and print media to create complex, subtle works that evoke the spirit and feeling of place. Her style is predominantly non-figurative, using the texture and surface qualities of the painted canvas, lithographic stone, or plywood base to express meaning. Her set of sculptures the guardians/ guardian spirit (1986-87) represent the matrilineal part of her family. The figure forms allude to termite mounds and the spirits that they represent. Many of her paintings are designed to hang without frames like textiles (Morphy 1999). Another Brisbane-based artist, in 1990 she was able to experience her Aboriginal heritage when she visited her grandmother’s country in north-westQueensland.

Although art from the south-east of Australia generally fits into a global category of contemporary art that emphasizes individual style, there are common themes and patterns of influence that distinguish Aboriginal art. Many artists draw on themes of their identity, past and also shared experiences of oppression. The subject matter of Robert Campbell (1944-1993) ranged from the history of racism in rural NSW to its mundane existence. Growing up in Kempsey, he learnt to draw at the primary school at Burnt Bridge Mission where he also helped his father decorate boomerangs. Whilst working as a seasonal worker around Kempsey and a labourer in Sydney, he developed what Djon Mundine calls a ‘confident’ and ‘idiosyncratic’ style (Mundine 2008) painting for tourists and local art shows using available materials.

Campbell’s work is both humorous and insightful and he wrote: ‘As an urban Aboriginal artist my work does not look “typically Aboriginal”… My paintings are in fact very much what I feel in my own heart. Very personal’, (Morphy 1999, p.380). A characteristic of his work is the contrast between the bright optimism conveyed in the colours of the paintings and the dark themes they explore. In Death in Custody (1987) he documents an important issue of contemporary Aboriginal politics; that Aboriginal people are the most imprisoned segment of the Australian population and the number of young men who die in custody (Morphy 1999).

It is because of the starkness of the statistics of Aboriginal poverty, infant mortality, sickness, and prison populations that these artists continue to address these issues. However, this should not necessarily pigeon-hole them as “Aboriginal” artists. Their work is political as well as being concerned with identity. These are subjects which interest many contemporary artists. By extending the boundaries of popular response through the use of new contexts, these artists have been able to change attitudes to the way their art is viewed. Furthermore, there is a need for Aboriginal artists to continue to explore their Aboriginality and through their work, aid non-Aboriginal people in understanding the impact of racism and disinheritance.

References:

Gordon Bennett, 2008, Retrieved January 23, 2009 from http://www.ngv.vic.gov.au/gordonbennett

Healy, C., 2003, Fiona Foley. Silent witness? Retrieved January 26, 2009, from http://www.anu.edu/hrc/research/WtoS/Healy.pdf

McCulloch, S., 2001, Contemporary Aboriginal Art- A guide to the rebirth of an ancient culture-Revised Edition, Allen & Unwin Sydney

Moffatt, T., 1997, A letter from Tracey Moffatt to Lynne Cooke, curator of Dia Centre for  the Arts, New York, in advance of her show “Free Falling”, Retrieved January 27, 2009 from http://www.diacenter.org/exhibs/moffatt/project/traceymoffatt.html

Morphy, H., 1999, Aboriginal Art, Phaidon Press,London

Myers, F., 1998, Uncertain Regard: An Exhibition of Aboriginal Art in France, Ethnos Vol. 63, No.1, Retrieved January 22, 2009 from http://www.homepages.nyu.edu

Versloot, A., 2000, Roller Queens and Narrow-minded Machos- The World of Tracey Moffatt, Retrieved January 27, 2009 from http://www.radionetherlands.nl/features/cultureandhistory/moffatt000602.html

Bibliography:

 

Allas, T. (n.d), Fiona Foley, Retrieved January 30, 2009 from http://www.daao.org.au/main/read/2575

Gordon Bennett (n.d.), Retrieved January 29, 2009 from http://www.ngv.vic.gov.au/gordonbennett/

Green, C., 1999, Beyond the Future: The Third Asia-Pacific Triennale Art Journal Vol.58, No.4 pp.81-87, College Art Association

Healy, C., 2003, Fiona Foley. Silent witness? Retrieved January 26, 2009, from http://www.anu.edu/hrc/research/WtoS/Healy.pdf

Judy Watson (n.d.), Retrieved January 26, 2009 from http://www.nga.gov.au/Landscapes/Wat.htm

Ladds, A. (n.d.), The Reconciler, Retrieved January 31, 2009 from http://www.theblurb.com.au/Issue27/LinOnus.htm

McCulloch, S., 2001, Contemporary Aboriginal Art- A guide to the rebirth of an ancient culture-Revised Edition, Allen & Unwin Sydney

Moffatt, T., 1997, A letter from Tracey Moffatt to Lynne Cooke, curator of Dia Centre for  the Arts, New York, in advance of her show “Free Falling”, Retrieved January 27, 2009 from http://www.diacenter.org/exhibs/moffatt/project/traceymoffatt.html

Morphy, H., 1999, Aboriginal Art, Phaidon Press,London

Mundine, D. 2008, Robert Campbell (Junior), Retrieved January 26, 2009 from http://www.daao.org.au/main/recent

Myers, F., 1998, Uncertain Regard: An Exhibition of Aboriginal Art in France, Ethnos Vol. 63, No.1, Retrieved January 22, 2009 from http://www.homepages.nyu.edu

Nelson, R., 2007, Gordon Bennett, Retrieved January 27, 2009 from http://www.theage.com.au/news/arts-reviews/gordon-bennett/2007/09/19/11898815568

Through artists eyes: Tracey Moffatt and Gordon Bennett Retrieved January 29, 2009 from http://www.artmuseum.uq.edu.au/index.html?page=97971&pid=0

Versloot, A., 2000, Roller Queens and Narrow-minded Machos- The World of Tracey Moffatt, Retrieved January 27, 2009 from http://www.radionetherlands.nl/features/cultureandhistory/moffatt000602.html

White, A., 2000, Aboriginal Art: Sacred and Profane, Review of Susan McCulloch, Contemporary Aboriginal Art: A Guide to the Rebirth of an Ancient Culture, Art Journal Vol. 59, No.4, pp.105-107, College Art Association

The global environment is connected to the security, economic prosperity and social well-being of both states and individuals. Until recently, the concept of security has only been associated with national security which emphasised armed conflict as the means to attain security through state power. The concept of environmental security broadens this definition by focussing on the transnational nature of the global environment which disregards human-constructed borders . Because of this the environment should replace the traditional realist idea of security as the key issue in global contemporary politics.

All people are in reality transnational actors who can make choices which contribute to the directions of global politics. The American anthropologist Margaret Mead states: “Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has”. Realist theorists believe that all decision makers are alike in their approach, that they are unitary actors with no essential differences and make their choices through rational calculations. To make a rational choice one must recognise a problem and define it objectively through access to a complete set of facts. The next step is to select the desired goal and then identify all of the alternatives. Finally, a choice must be made which includes a cost-benefit analysis based upon an accurate prediction of success.

The challenges to the global environment in the century ahead include global warming, ozone depletion, and the loss of tropical rainforests and marine habitats. These challenges are as much a threat to humanity as the threat of nuclear warfare. However, because the threat of nuclear warfare focuses on mutually assured destruction more focus is given to this threat because of its perceived and tangible reality. On the other hand the threats to the global environment are more difficult to perceive because one cannot see ozone depletion or see the immediate effects of global warming. Rainforest destruction happens far away from the major cities in which much of the global population, and so does the loss of marine habitats.

To counter this disassociation from these real challenges, imagery is effective in trying to enlighten global citizens of the inherent ordeals that they and their descendents face in the near future. Through the mass media, the world is defined by images. Many of the perceptions derived from this imagery can distort or intensify our experience of the world’s political realities. Our assumptions or interpretations of these realities can affect the way we act upon them. Environmental NGOs and IGOs such as Greenpeace and the UN Panel on Climate Change (IPCC) use imagery effectively to try and make humans act in a global effort to protect the environment on which they rely from degradation and loss.

The challenges that have arisen out of environmental problems will in effect bring about the ‘politics of scarcity’. This concept emphasizes that resource scarcity brought about by restricted access to food, water and oil will be a more likely cause future international conflict than any military challenge. Human life depends upon what ecologists term ‘the global commons’ which emphasizes the interdependence of humanity with the planet’s ability to sustain it. Lester R. Brown argues: “In ecology, as in economics, we can consume principle along with interest in the short run, but, for the long term, that practice leads to bankruptcy”. The goal that these challenges present to us is one of sustainable development.

In 1987 the World Commission on Environment and Development authored a report called Our Common Future. It concluded that the world cannot sustain the growth that is required to meet the aspirations of the world’s growing population unless it can adopt a new approach to economic development, equity, resource management and energy efficiency. It defined a ‘sustainable society as one that meets the needs of the present without compromising the ability of future generations to meet their own needs’. The alternatives to action on achieving such goals as a sustainable society have diminished since 1987, as the UN Secretary-General Ban Ki-moon urged in 2009 at the Copenhagen Climate Conference: “We must harness the political will to seal the deal on an ambitious new climate agreement…If we get it wrong we face catastrophic damage to people, to the planet”.

Data from the World Meteorological Organisation that monitors the global surface temperatures show that global warming is not a myth. NASA and the IPCC both predict that global temperatures will rise by up to 12 degrees Fahrenheit by 2100. This will cause sea levels to rise, heat waves and droughts, increase storm damage, extinctions of ecosystems, increase prevalence of diseases and increase hunger and water shortages.  Deforestation causes threats to biodiversity, desertification and exacerbates the release of carbon dioxide into the atmosphere, the cause of global warming. The demand and consumption of fossil fuels has caused global warming but is also a threat in the fact that its depletion will cause instability in global economic and political systems, as advisor on peace and security Michael Klare asserts: “We are nearing the end of the Petroleum Age and have entered the Age of Insufficiency”.

Through neglect, environmental security will compromise human security. With effort and recognition of the impending threats solutions can be achieved, with conversion to renewable sources of energy, adherence to international treaties, sustainable development and independent state and local solutions. The potential of these threats is as pronounced as any threats of armed aggression and in fact, neglect may exacerbate armed conflict between people. Therefore, the imperative to rationally manage global environmental security must replace the traditional realist theory of military security as the key issue in contemporary global politics.

The Treaty of Westphalia of 1648 was crafted to preserve the great powers at the time so that they could serve their self-interest in staying in their prime position at the top of the global pyramid. It left the contemporary global system being a socially constructed reality which does not reflect the inherent resemblance of all nations as being made up of human beings. The post-colonial reality allows that hierarchy to continue with Western governments benefiting from centuries of seizures of territory and resources and its legacy to persist through ethnic conflict derived from colonially-imposed borders and unequal exploitative relationships. It is this legacy which creates the imperative for the notion of universal human rights to be an overriding issue of global politics.

Most wars now occur in the Global South, a circumstance which is derived from their colonial origins. The Global South has the highest number of states with the largest populations on the least income and with the most unstable governments. These factors lead to failed states which lead to mass emigrations of refugees, disease and famine. The armed conflict which happens within these failed states happens more frequently than armed conflict between states with 2009 seeing 36 armed intrastate conflicts in 26 locations. These civil wars have a high cost of life, have child soldiers as participants and perpetrate genocide, an example being the slaughter of eight hundred thousand Tutsi and moderate Hutu people during a few weeks in Rwanda.

Under current international law state sovereignty is supreme, meaning that no authority is above the state. In fact international law actually protects a state by giving it ‘a complete freedom of action to do whatever it takes to preserve its sovereign independence’. Even though in 1948 the Universal Declaration of Human Rights was signed by many states to protect individuals, states still have the right to perform within their territories in any which way they choose. Up until 1952, ‘a citizen was not protected against the state’s abuse of human rights or crimes against humanity’. International law, being fashioned by realist thinkers, does not protect humans but protects the instrument of humans being the state. This goes against liberalist thinking of not using humans as a means to an end.   

This liberal view that the individual is the seat of moral value is fundamental to the notion of universal human rights. One of the corollary concepts of liberal theory stresses the unity of humankind, the importance of the dignity and equality of individuals, and the need for the promotion of human rights and liberty. Rather than being a ‘subject’ of the state, the general consensus in contemporary global politics is that people are important and have worth and therefore ethical and moral issues belong in the realm of international relations. However, the accuracy remains of Jean Jacques Rousseau’s observation that ‘man is born free, and everywhere is in chains’. Globally, a select few of the total population are prospering while there are many who can barely survive.

Constructivists make humans the primary level of analysis, with human ideas defining the identities that impart meaning to the behaviour of others. This contemporary thinking has shaped a consensus that claims that all humans have the same moral status and that ‘to accept human rights [is to make on the state] the moral demand to respect the life, integrity, well-being and flourishing of…all human beings’. The 1948 Universal Declaration of Human Rights asserted many civil and political rights such as freedom of assembly, freedom of thought and expression, the right to participate in government, and indispensable social and economic rights. The Declaration also asserts that ‘if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law’. This is the essential argument of why human rights are integral to global politics.  

Although the Declaration and the further multilateral treaties which enumerate these rights are legally binding on states, there have been many who have not ratified these agreements or have objected to specific provisions. For instance, the United States ratified the International Covenant on Civil and Political Rights with reservations, but did not ratify the International Covenant on Economic, Social and Cultural Rights. Considering that the US is the most powerful state in the liberal democratic world, this is an indictment against the moral values purported to be so important to this global group. Human rights abuses continue with 350 million indigenous peoples being without a homeland or political representation and subject to persecution and genocide; with women in the world continuing to be disadvantaged in comparison to men; with up to 4 million people subjected to slavery and human-trafficking; and with children being subjected to neglect and abuse through slavery, hunger, conscription and sexual exploitation.

With so many people of the world being the target of oppression and violence by states, the global community is morally challenged as to whether international treaties can go on being blatantly disregarded by the states that have ratified them or have some consensus with them. In principle, international law now provides protections for all people everywhere to live in freedom and security. So that these protections can finally apply to all people, traditional notions of sovereignty must be transcended. Global politics must now recognise and respect these laws so that the assertion of the Declaration of common interests of all citizens in all states is recognized and upheld.

The modern state, which was born from the Peace of Westphalia of 1648, gave unrestricted control of the state to its rulers. This was the beginning of the concept of state sovereignty which is still dominant today. The most potent shaping forces in the contemporary world are the interactions of states when enforcing their interests, capabilities and goals. However, during the latter half of the twentieth century the supremacy of the state is under challenge. Global affairs are now dominated by intergovernmental organizations that transcend national boundaries. Global international organizations such as the United Nations and the European Union have become independent global actors which implement their own foreign policies. Also groups of people carrying on various enterprises, such as multinational corporations, are examples of nongovernmental organizations which also transcend national boundaries and exert their influence globally.

Post Cold War, the United States has dominated world politics with the political scientist Francis Fukuyama even suggesting that it signalled ‘the universalisation of Western liberal democracy as the final form of government’. However because of the ascendance of other great powers such as China, Japan, Russia and India others, such as the journalist and foreign policy advisor Fareed Zakaria, argue that a ‘post-American’ world has arisen through which many other state and nonstate actors direct and define global society’s responses to global challenges. While the United States remains the greatest military power, other dimensions are emerging industrially, financially, educationally, socially and culturally that are moving the globe away from American dominance.

Although some suggest that competition between states could be renewed as they jostle for power in commercial relations, they also manage their security relations collaboratively which can be seen through their cooperation in fighting terrorism. The danger of the polarization of these states into two antagonistic camps could be managed through newly developed international rules and institutions that can manage these mixed-motive relationships. Rather than a quest for hegemony, these great and emerging powers are active trading partners and the question arises will these commercial relationships reduce the potential for future military competition?

Multilateralism could be the approach that these great powers take to cooperate to achieve global solutions to problems that affect all of their citizens. In an ever shrinking global environment in which all actors are increasingly reliant upon each other, a new global system of power and responsibility is more widely distributed. How these great powers will make their choices about war and peace will affect all people and determine the fate of the world.

A new concept of responsible sovereignty is emerging which requires states not to protect only their own people but also to cooperate across borders to protect global resources and address transnational threats. This entails intergovernmental organizations (IGOs) and non-government organizations (NGOs) providing a greater role which ‘differs from the traditional interpretation of sovereignty being non-interference in the internal affairs of state’. Global problems require global solutions and an increasingly greater number of non-state actors have arisen on the world stage to engineer adaptive global changes.

The United Nations is the most prominent IGO to have emerged in the last sixty years. Its Charter sets its agenda as the maintenance of peaceful and amicable relations between states based upon humanitarian values and the attainment of common ends through the harmonization of state actors. Although it is challenged by persistent financial troubles it is an adaptable and reforming institution that remains the forum of choice for negotiation and promotion of humanitarian concerns. Through its claim to represent ‘the collective will of humanity’ it is in the position to act on issues of global relevance such as shaming human rights violators, combating global pandemics, and promoting conflict-prevention measures.

Increasingly, NGOs are becoming more influential in global politics through their ability to lobby and influence international decision making. This activism is able to transcend the traditional distinctions between what is local and what is global. Five of the most visible types of NGOs are non-state entities that comprise of ethnic or indigenous peoples, transnational religious groups, transnational terrorist groups and multinational corporations. However, while these groups have a strong participation in world affairs some of their influence can often be minimised by differing groups pushing policies in opposing directions.

With the world being far more interdependent than ever before and transactions across state borders increasing through the movement of people, information and trade, non- state actors are becoming more important to the shared concepts of people across the globe. The centrality of the state as an insular actor is declining. Although our constructed images of global politics are resistant to change, change is possible through the reshaping of our insular perceptions. By ridding ourselves of false assumptions about other people we can reshape the future of world politics so that it does not rely on the insular attitudes of singular states but on the basis of a global people. As the philosopher Martin J. Siegel observes: “War for survival is the destiny of all species. In our case, we are courting suicide [by waging war against each other]”. It is the realisation of this by state leaders that will finally lead to the end of the concept of the sovereign state.

http://www.youtube.com/watch?v=Qfo7TjwRwXI&feature=youtu.be