Governing globalization in South Asia through a legal praxis of human rights, development and democracy

ABSTRACT This doctoral thesis in law seeks to understand, and begin to remedy, the immense and avoidable poverty that disenfranchises at least 30 percent of the world's most populous region. Defining South Asia as Bangladesh, Bhutan, India, the Maldives, Nepal, Pakistan and Sri Lanka, the study analyses the multidimensional nature, historical origins and modern dynamics of both this material poverty and poverties of human rights, democracy and development. Both critical analysis and creative response are framed within legal history, human rights jurisprudence, constitutional and administrative law, comparative law and public international law, but the author draws extensively on political economy and history, and partially on philosophy, and cultural studies. Chapter 1 traces the Western evolution of the universal human rights regime, first globalized in 1948 by the Universal Declaration of Human Rights. It also traces South Asian sociopolitical and religious articulations of human dignity and limitations on legitimate power through the ages. Mostly contrary to culturally relativist claims, South Asia's human rights needs are found to be well served by a genuinely universalist regime including justiciable economic, social and cultural rights as inseparable from civil and political. Chapters 2 and 3 survey the historical globalizations that have impacted on South Asia. Although globalization is shown to be a neutral phenomenon, the author identifies the insidious contemporary propagation of a particular neo-liberal ideology as being globalization's inevitable and optimal form. The study analyses this propagation by the International Financial Institutions the World Bank and International Monetary Fund, acting through Structural Adjustment Policies and only partially corrective Poverty Reduction Strategy Papers. Neo-liberalism supposedly unshackles benign market forces from distorting governmental rules to create spontaneous growth that trickles down to the poor; in fact it employs its own rules to privilege the already wealthy, especially Western capital and transnational corporations (TNCs). The thesis urges South Asia to govern globalization pro-actively, seeking the virtuous circle of human rights, plural democracy and equitable development. Positive signs have already included national membership in, and constitutional enshrinement of, universal human rights norms, and certain efforts of civil society and non-governmental organizations, fostered at times by activist judiciaries. Chapter 4 nevertheless catalogues overriding failures to internalize plural democracy and the rule of law, leaving rights nominal and democratic structures hollow. Governments have been obsequious to neo-liberal hegemony, insouciant to their underclasses and exploitative of religious schisms in appeal to tyrannous majoritarianism. The South Asian Association for Regional Co-operation is shown as an inadequate response to the region's multidimensional poverties. Adapting instead the best practices of the Council of Europe, the Organization of American States, the African Union, and the British Commonwealth from Chapter 5, Chapter 6 details a South Asian Union for Human Rights Development and Democracy to replace SAARC. This new regional response complements global human rights norms and offers South Asia solidarity in confronting neo-liberalism, and holding TNCs, IFIs and especially their own governments accountable to the rule of law, equitable development, deep democracy, wide human rights, and larger freedom in peace and security