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Introduction: Locating Rights, Envisioning Law Between the Global and the Local

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In January 2002 Fiji presented its first ever country report to the United Nations committee charged with monitoring compliance with the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). One of the most controversial sections of the report addressed the use of the practice of bulubulu, or village reconciliation, in cases of rape. During the public presentation of the report in New York City by Fiji's Assistant Minister for Women, the nuances of bulubulu as a sociolegal practice in postcolonial Fiji were obscured within what quickly became complicated layers of political miscommunication, the imperatives of a surging Fijian nationalism, and, as always, the politicization of culture. On the one hand, the CEDAW committee, though staffed by members from a range of different countries, was required by its UN mandate to fulfill a fairly simple task: to decide whether individual countries were taking the requirements of CEDAW seriously, as measured by national self-assessments of violence against women and official responses to this violence. But, on the other hand, because CEDAW expresses both the conceptual and practical constraints of universal human rights discourse, the UN committee was prevented from considering the social contexts within which bulubulu functions in Fiji. To open up the possibility that CEDAW's requirements for defining, preventing, and redressing violence against women were contingent upon their correspondence with circumstance, tradition, or instrumental efficacy would be to deracinate CEDAW, to destroy its potential as one key component in a still-emergent international human rights system.
THE PRACTICE OF HUMAN RIGHTS
Tracking Law Between the Global and the Local
Editors:
Mark Goodale
Sally Engle Merry
and
C¡.umnrDGE
IINTVERSITY PRESS
ACKNOWLEDGMENTS
INTRODUCTION
LOCATING RIGHTS, ENVISIONING LAW
BETWEEN THE GLOBAL AND THE LOCAL
Mark Goodale
InJanuary T}}ZFijipresented its first ever country report to the United
.Nations committee charged with monitoring compliance with the
Convention on the Elimination of All Forms of Discrimination
Against 'SV'omen (CEDA\7). One of the most controversial sections
of the report addressed the use of the practice of bulubulu, or village
reconciliation, in cases of rape. During the public presentation of the
reporr in New York City by Fiji's Assistant Minister for'Women, the
nuances of bulubulu as a sociolegal practice in postcolonial Fiji were
obscured within what quickly became complicated layers of political
miscommunication, the imperatives of a surging Fijian nationalism,
and, as always, the politicization of culture. On the one hand, the
CEDA\ø committee, though staffed by members from a range of differ-
ent countries, was required by its UN mandate to fulfill a fairly simple
task: to decide whether individual countries were taking the require-
ments of CEDAW seriously, as measured by national self-assessments
of violence against women and official responses to this violence. But,
on the other hand, because CEDAW .*f..rr., both the conceptual
and practical constraints of universal human rights discourse, the
UN committee was prevented from considering the social contexts
within whlch bulubulu functions in Fiji. To open up rhe possibility
that CEDA\U's requirements for defining, preventing, and redressing
violence against women were contingent upon their correspondence
with circumstance, tradition, or instrumental efficacy would be to
deracinate CEDA\ø, to destroy its potential as one key component in
a still-emergent intemational human rights system. As Sally Engle
x11
INTRODUCTION: LOCATING RlcHTS. ENVISIONING LAW
Merry explains, in her multinational study of CEDA\7 practices, ('ir is
of course impossible to understand the complexities of the operation of
a particular custom when a committee is dealing with eight different
countries in two weeks. One cannot expect committee members to
spend a month reading the anthropological literature and two weeks
interviewing Fijians in order to determine the meaning of a custom"
(2006:118).
Similarly, Maya Unnithan-Kumar (2003) has written about the
ways in which national discourses of women's health and develop-
ment in India have been transformed over the last fifteen years by
human rights activism, which has led to a shift in the way issues of
fertility control and health planning are articulated and understood.
After the 1994 UN International Conference on Population and
Development, family planning programs in India, which had
been directed toward reducing or controlling childbirths as part of
earlier health and economic policies, were deemphasized in favor of a
policy of contraceptive choice, which reflected the fact that "the
enjoyment of sexuality" (2003: 187) had been singled out as a human
right at the 1994 UN meeting in Cairo. Yet even though Indian
feminists were successful in shifting the terms of the debate over
reproductive health and sexuality from the "problem of childbirth" to
reproductive choice as a human right, the Indian government was
faced with the challenge of reconciling preexisting material, political,
and cultural realities with the new discourse of "consumer choice," as
Unnithan-Kumar (2003: 188) revealingly describes the way human
rights language reinscribed the question of women's sexualiry through
the metaphor of the market.
And finally, since 1999 Bolivia has been shaken by a series of social
movements that have toppled two elected presidents and have put
the entire foundation of Bolivia's neoliberal restructuring in jeopardy.
A key dimension to these waves of social upheavals has been the
refrarñing of a set of very old social grievances by the nation's indige-
nous majority as rights claims within one of several human rights
frameworks. The opposition political party with the most supporr by
the loose coalition of indigenous groups has been the Mouimimento al
Socialismo (MAS) party (Movement Towards Socialist Party), led by
Evo Morales, the leading voice of Bolivia's coca growers. Although
Morales is typically described as leftist or left-leaning by the inter-
national media, in fact his party employs a hybrid rhetoric rhat com-
bines old-line Marxist (or neo-Marxist) categories and imagery with an
INTRODUCTION: LOCATING RIGHTS. ENVISIONING LAW
entirely different - and much more recent - language of human rights
in order to locate Bolivian struggles over natural resources, land, and
political representation within broader regional and transnational
indigenous rights movements (Goodale 7006c, 2008 ). This normative
hybridity creates awkward moments for MAS: the vision of a more
equal and just Bolivia, in which indigenous people control - by force, if
necessary - a greater share of the nation's wealth, coexists uneasily with
a vision of Bolivia as a nation of human rights-bearing modernsubjects,
who demand legal and political institutions that will enforce the differ'
ent intetnational human rights provisions that have been adopted
within national larv.
'What makes these three vignettes from the recent research on
human rights practices so revealing is both what they tell us, and
don't tell us. They demonstrate that the human rights regimes that
have emerged over the last fifteen years increasingly coexist with alter-
native, and at times competing, normative frameworks that have also
been given new impetus since the end of the Cold War. Eleanor
Roosevelt, the chair of the inaugural United Nations Commission
on Human Rights, had hoped that a "curious grapevine" would even'
tually carry the idea of human rights into every corner of the world, so
that the dizzying - and regressive - diversity of rule-systems would
be replaced by the exalted normative framework expressed through
the 1948 Universal Declaration of Human Rights. In fact, the curious
grapevine of non-state and transnational actors did emerge in the
way Roosevelt anticipated, but the resulting networks have been con-
duits for normariviries in addition to human rights. Ideas, institu-
tional practices, and policies justified through a range of distinct
frameworks and assumptions - social justice, economic redistribution,
human capabilities, citizen security, religious [aw, neo-laissez faire
economics, and so on - come together at the same time within the
transnational spaces through which the endemic social problems of our
times are increasingly addressed. Yet even though the humanitarian
goals of different intemational or transnational actors - the eradication
of poverty, the elimination of discrimination against women' the
protection of indigenous populations against exploitation by multina'
tional corporations - might be fairly straightforward in principle, the
emergence of different means through which these goals are met has
created a transnational normative pluralism whose full effects and
meanings are still unclear. Even so, there has been at least one effect
that is clear: human rights have become decentered and their status
3
2
INTRODUCTION: LOCATING RlcHTS. ENVISIONING LAW
remains as "unsettled" as ever, as Sarat and Keams (2007) have rightly
argued.
These excerpts from the recent study of human rights also show that
the þractice of human rights is more complicated than previously
thought. This complexity is pardy the result of the challenges associa-
ted with conducting empirical research on dynamic and, at times,
illusive transnational processes. But, even more important, the study
of human rights suggests that the "practice" that is being documented
and analyzed has the potentíal to transform the framework through
which the idea of human rights itself is understood. This is because rhe
recent research on human rights, much of it carried out by anthropol-
ogists and others committed to the techniques of ethnography, suggesrs
an alternative to the dominant modes of inquiry within which human
rights has been conceptualized over the last fifty years. To study the
practice of human rights is, in part, to make an argument for a different
philosophy of human rights, what we can loosely describe as anantLvo-
þological philosophy of human rights.
And, perhaps most consequentially, these three windows into con-
temporary human rights practices illustrate the poverty of theory
through which transnational processes have been conceptualized,
explained, and located in time and space. The emergence of contem-
porary human rights regimes over the last fifteen years quickly strained
the capacity of existing social theoretical frameworks to explain diffev
ent problems: how human rights relate to other transnational norma-
tivities; the relationship between the epistemology of human rights
practices and the social ontologies in which they are necessarily embed-
ded; the disjuncture between the universalism which anchors the
idea of human rights conceptually, and the more modest scales in
which social actors across the range envision human rights as part of
preexisting legal and ethical configurations; the relationship berween
human rights regimes and other transnational assemblages that struc-
ture relations of - especially economic - production; the impact of
human rights discourse on alignments of political, èconomic, and
other forms of power, alignments which predated the rise of the inter-
national human rights system in 1948 and which are morivated by
an entirely different set of ideological aird practical imperatives; and so
on. The social theoretical literature that has emerged over the last
fifteen years as a response to problems that are related to these has
proven to be, while not exactly an orrery of errors (with apologies to
E. P. Thompson), at the very least a problematic source of analytical
THE DIFFERENT MEANINGS OF HUMAN RIGHTS
guidance for those interested in making conceptual sense out of human
rights practice and drawing out the broader implications for the study of
transnational processes more generally. The mountain of writings that
examines the nuances of "globalization," the relationship between
the global and the local, the emergence of new world orders or new
sovereignties, the withering away of culture and the rise of global
ethnoscapes, even the more promising move to envision transnational
processes through network analysis, all fail, in one way or another, to
capture the social and conceptual complexities documented by the
recent study of human rights practices.
This volume represents a different Íesponse to this social and con-
ceptual complexity. Through the eight chapters and four critical com-
mentaries, the volume is intended to speak innovatively to key
problems in both human rights studies and the broader study of trans-
national processes. Although each of the authors, in one forn or
another, draws from anthropological forms of knowledge in order to
develop one or more of book's rnain themes, the volume is not directed
toward theoretical debates within any one academic discipline. The
book is essentially interdisciplinary and expresses what I have described
elsewhere (Goodale 2006a) as an ecumenical approach to the mean-
ings and practices associated with human rights. Besides anthropology
(Goldstein, Jackson, Merry, Nader, Speed, Wastell, Wilson), the
authors come to the project from professional bases in conflict studies
(Goodale), religious srudies (Leve), sociology (Dale), international
studies (\Øarren), and intemational law (Rajagopal). This ecumenism
is critical for the study and analysis of human rights, whose claims are
projected across the broadest of analytical and phenomenological
boundaries, but whose meanings are constituted most importantly by
a range of social actors - cosmopolitan elites, government bureaucrats,
peasant and other organic intellectuals, transnational nongovernmen-
tal organizations (NGOs) and their national collaborators - within the
disarticulated practices of everyday life.
THE DIFFERENT MEANINGS OF HUMAN RIGHTS
Before moving on to describe the book's main themes in more detail, it
is necessary to consider the question of what human rights are and to
locate this volume in relation to the different approaches to this
question, whlch entail, as will be seen, much more than semantic or
45
INTRODUCTION: LOCATING RlcHTS, ENVISIONING LAW
academic distinctions.l Th"r" different orienrarions ro the problem of
human rights as a norlnative category can be usefully placed on a
spectrum of degrees of expansiveness^ At one end of the spectrum,
the restricted one, are the different variations of the view that
"human rights" refers to the body of intemational law that emerged
in the wake of the 1948 Universal Declaration of Human Rights and
follow-on instruments. These different variations all express a broadly
legal understanding of human rights. Although the legal approach to
human rights is itself fragmentary and internally diverse - for example,
some argue that human rights must be enforceable in order to be
considered human rights, while others avoid the probleó of enforce-
ability - there are some important commonalities: the idea of human
rights must be legislated, legally recognized, and codified before it
can be taken seriously as part of the law of nations. The pohtical
scientist Alison Brysk, in the introduction to her edited volume
Globalizatíon atÅ,Htnnnn Rþhts, expresses the legal approach ro human
rights:
Human rights are a set of universal claims to safeguard human dignity
from illegitimâte coercion, typically enacted by state agents. These
norms are codified in a widely endorsed set of intemational under-
takings: the "lntemational Bill of Human Rights" (Universal
Declaration of Human Rights, International Covenant on Civil and
Political Rights, and Inrernarional Covenant on Social and Economic
Rights); phenomenon-specific treaties on war crimes (Geneva
Conventions), genocide, and torture; and protections for vulnerable
groups such as the UN Convention on the Rights of the Child and the
Convention on the Elimination of Discrimination against Women [sic].z
(Brysk 2002: 3).
I Itisactuallyquitesurprisinghowrarelystudiesofhumanrightstaketherimetoexplainhow,in
fact, "hurnan rights" is being used. l7ithin the voluminous human rights literature it is much
more common rhat the intended meaning of human rights is kept implicit, or allowed to emerge
in context without formally addressing this issue analytically. While a contextual srrategy has
much to recommend it - in particular, it suggests that the answer to the question "what is human
rights?" is itselfcontextual - it is also possible that in taking the meaning ofhuman rights for
granted, when it is in fact highly conrested, a certain opacity has crept into the literature.
Different analyses or arguments come to be marked by the disciplinary orientations from which
they emerge, when what is desired is an approach to this most encompassing of topics that
- transcends (or unifies) the many different academic and political traditions.
' Both the 1979 UN Convention on the Elimination of Ali Forms of Discrimination Against
Women, and the Committee on rhe Elirnination of Discrimination Against \(/omen, which is
authorized in Article 17 of the Convention to monitor compliance by "states parties," are at
various times referred to with the acronym CEDA\ø, even though this usage was originally
meant to refer to the Convention.
THE DIFFERENT MEANINGS OF HUMAN RìGHTS
A somewhat more expansive orientation to the problem of what
human rights are moves away from international legal instruments and
texts to consider the ways in which tLre conceþt of human rights - which
is also expressed through instruments like the Universal Declaration,
but not, on this view, circumscribed by them - is itself normative. This
is very much an analytical normativity, one that describes the ways in
which the concept of human rights in itself establishes particulâr rules
for behavior and prohibits others. Jack Donnelley, for example, who
is a ubiquitous presence in human rights studies, occupies this middle
location on the spectrum of degrees of expansiveness. As he explains
(2003: 1O), "[h]uman rights are, literally, the rights that one has simply
because one is a human being" (i.e., completely apart from any recog'
nition of these rights in positive international law). Having articulated
the concept of human rights as clearly and axiomatically as possibly,
Donnelly then goes on to deduce what are, in effect, logical corollaries
to this first principle:
Human rights are eq.ølrights; one either is or is not a human being, and
therefore has the same human rights as everyone else (or none at all).
They are also inalienable rights: one cannot stop being human' no matter
how badly one behaves nor how barbarously one is treated. And they are
uniuersal rights, in the sense that today we consider all members of the
species Homo saþiens "human beings," and thus holders of human rights.
(2003: 10; emphases in originai)
This approach to the question of what human rights are, which, as
Donnelly acknowledges, could be described as "conceptual, analytic, or
formal" (2003: 16),3 is also concerned with the ways in which the
normativity of the human rights concept configures or shapes - again
analytically, not empirically - the conceÞt of the individual (not parti-
cular individuals in any one place or time). Through human rights,
"individuals [are constituted] as a particulff kind of political subject"
(2003: 16). Bv making the constitution - even in the abstract - of the
political (and legal) subject a basic part of the definition of human
rights, this midpoint approach moves well beyond the legal positivism
of human rights instrumentalists and, at least theoretically, broadens
the normative category "human rights" to include both the norms
themselves and the subjects through which they are expressed.
3 Elsewhere (7003, 17) Donnelly desc¡ibes his approach to the question of human rights as
"substantively thin" and argues that the "emptiness" of his conceptual orientation is "one of
its greatest attractions."
67
INTRODUCTION: LOCATING RIGHTS. ENVISIONING LAW
At the other end of the spectrum, the question of what human rights
are is answered by treating human rights as one among several con-
sequential transnational discourses.4 Upendra Baxi expresses this mode
well when he begins his important and wide-ranging critique of humatr
rights by describing the object of this study as those "protean forms of
social action assembled, by convention, under a portal named 'human
rights."' (7002 v). As can be imagined, the disansiue aþþroach to
human rights is itself internally diverse- But, despite this diversiry,
there are several features that mark this orientation as the most expan-
sive framework within which "human rights" is conceptualized, studied,
and understood. First, the discursive approach to human rights radically
decenters intemational human rights law. Legal instruments like the
Universal Declaration, or legal arenas like the International Criminal
Court (lCC), are seen as simply different nodes within the power/
knowledge nexus through which human rights emerges in social prac-
tice. Second, the discursive orientation makes human rights normati-
vity itself a key category for analysis. This does not mean that human
rights is simply studied or analyzed ds norms; rather, normativity is
understood as the means through which the idea of human rights
becomes discursive, the process that renders human rights into social
knowledge that shapes social action. Third, the study of human rights
as discourse reveals the ways in which actors embrace the idea of
human rights in part because of its visionary capacity, the way it
expresses both the normative and the aspirational. Finally, to concep-
tualize human rights as one among several key transnational discourses
is to elevate social practice as both an analytical and methodological
category. Despite the nod that the several strands of social or critical
theory make toward practice, praxis, or agency within their broader
studies of discourse, in fact the actual consideration of social practices
more likely than not remains prospective, or merely categorical. In
contrast, discu¡sive approaches to human rights assume that social
practice is, in part, constitutive of the idea of human rights itself, rather
than simply the testing ground on which the idea of universal human
4 "Discourse"isemployedatthisendofthespectrumwithvaguelypoststructuralistresonancesto
refer to the institutional, historical, political, and social formations through which knowledge
(and power) is constituted in practice. The many dimensions oflanguage are of course key parts
ofhuman rights discourse, especially since the word - as embodied rnost clearly by the text ofthe
Universal Declaration - plays an essential role in expressing the idea of human rights; but the
notion of human rights discourse goes well beyond language to include the full range of social
knowledge regimes through which humm rights eme¡ges in social practice.
THE DIFFERENT MEANINGS OF HUMAN RIGHTS
encounters actual ethical or legal systems. As we will see, this assump-
tion has far-reaching implications for the way the practice of human
rights is studied and conceptualized.
Although the chapters and critical commentaries here do not
express a unified response to the question of what human rights are,5
it is accurate enough to say that the volume would fit quite comfortably
somewhere on the expansiveness spectrum between the conceptual
approach of Donnelly and the broadly discursive órientation of Baxi.
Even though many international lawyers and human rights activists -
in particular - would consider the open and critical discursive approach
to human rights either hopelessly vague, or ethically questionable (or
both),6 there is no doubt that scholars of human rights practices have
demonstrated the usefulness in understanding "human rights" beyond
the narrow confines of international law. As will be seen throughout
the chapters, perhaps the most important consequence to reconceptua-
lizing human rights as discourse is the fact that the idea ofhuman rights
5 A perhaps minor point within human rights studies is the problem of whether one uses human
rights in the singular or plural. The plural is much more common, at least for US-based witers
and analysts, and for intemational agencies like the United Nations. This last is not surprising
given the fact that the plural is most appropriâte for those for whom "human rights" refe¡s to the
rights enumerated in intemational law (the legal approach), or those who aìgue that hunan
rights are rights that all humans have simply by being hurnan (the conceptual approach). But if
by "human rights" one is referring to a consequential transnational discowse, then it is more
grammatically correct to use the singular: "human rights is . ." Thus controlling for grammati-
cally slippage or enor, one signals one's orientation to the question ofwhat human rights are/is
tllrough the form of the verb "to be-" The matter - to give this point, as I have said, perhaps more
importance than it deserves - becomes more complicated in English as between the American
and British idioms, because British schola¡s adopt the singular fom of "to be" rnuch more
frequently, so it is difficult to know (without context) whether a British mite¡ on hurnan rights
is signaling allegiance to the discursive approach, or merely respecting British language usage,
_ when she writes "humm rights is . .."
o lwasremindedrecentlyjusthowunethicalthediscursiveorcriticalapproachrohumanrightsis
considered during a graduate seminar on "human rights in comparative perspective." One
graduate student - from a forme¡ Soviet bloc country - finally lost all patience with the ongoing
discussion of problems within contemporary human rights. The student chastised me for
subjecting any part of human rights to critical scrutiny and accused me of possibly weakening
a no¡mative ftamework that was clearly fragile to begin with. In the student's quite emotional
reaction, one detected a peculiar - ifperfectly understandable - ethical syllogism at work. If the
official ontology expressed through the Universal Declaration is accepted - and people do, in
fact, haue human rights in that way - then critical scrutiny that cal1s this ontology into question
can only be a modem kind of scholasticism: the pursuit of abstract analysis for its own sake. But
here's the difference, to engage in intellectual casuistry in the area of human rights is to
potentially damage or confuse the only transcendent moral fact - that we all have human rights
by virtue of a common human nature or humanness - and thus to indirectly play a role in
ongoing or future violations of these human rights. This is why many human rights activists - in
particular- have reacted with more than simple incredulity at the emergeirce ofa critical human
rights literature over the last fifteen years, the same period that has provided an opening for
greater human rights protection and enforcement.
9
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INTRODUCTION: LOCATING RIGHTS. ENVISIONING LAW
is reinscribed back into all the many social practices in which it
emeïges. This inverts the dominant understanding, in which the idea
of human rights refers to certain facts about human nature, and the
normative implications of these facts, in a way that makes the practice
of human rights of either secondary importance, or irrelevant. There
are troubling implications to deriving the idea - or ideas - of human
rights from human rights practice, including implications for the legiti-
macy of human rights, the epistemology through whlch they are known
(and knowable), and their putative universality.T But, despite these
complications, it makes no sense either to conceptually divide the idea
(or philosophy) of human rights from the practice of human rights (and
then exclude the latter from the catègory "human rights"), or to argue
that one should only be concemed with the expression of the idea of
human rights through intemational law, especially since at present
international human rights law plays such a demonstrably small part
in the total normative universe within which human rights is expressed
and encountered.S
HUMAN RIGHTS BET\rEEN THE GLOBAL
AND THE LOCAL
The idea of human rights in its dominant register - the one expressed
through instruments like the Universal Declaration - asslLrnes the most
global of facts: that all human beings are essentially the same, and that this
essential sameness entails a set of rights, rights which might (or might not)
be correctly enumerated in the main body of intemational human rights
law. I underscore "assumes" because as a matter of philosophy - or perhaps
logic - there is no question that to articulate the idea of human rights in
? I d."* a distinction here between uniuersality and universalism. The first refers to an assertion
about - in this case - human rights ontology: that human rights are, in fact, universal, meming
coextensive with the fact ofhumanness itself. (Obviously universality in this sense does not only
apply to human rights.) Universalism, however, is quite different. This shoøld be used to refer to
the range of social practices, legalities, political systems, and so on, that ernerge in relatíon to
universality. Universalism can be understood, in part, as the ideology of universality. Thus, as I
have argued recently in a collection ofessays on the anthropology ofhuman rights (Goodale
2006b,2007), the study of human rights ptactices is, in part, the study uníuersalism.
I To describe international human rights law in this way is to evaluate what can be said
empirically: that human dghts exerts a normative influence, provokes shifts in identity and
consciousness, operates instrumentally by altering political configurations or calculations, and
so on, apart from any connection to actual legal codes or instruments. Nevertheless, when
present, human rights expressed through, or as, law assumes a different - and more specific -
kind of influence (or power, see my chapter this volume) that can be as consequential as it is (so
far) uncommon.
HUN/AN RIGHTS BETWEEN THE GLOBAL AND THE LOCAL
this way is to assert a first principle, one which is formally unproven, and
whlch is, most likely, unprovable, if by proof we insist on empirical
evidence.'lVhat follows from this first principle is the list of human rights
themselves, which are also not discovered or justified inductively, but are
rather "proven" through a process that is in large part deductive.
In other words, I am arguing here that the contemporary idea of
human rights was - and continues to be - articulated through a form of
reasoning that is both rational and essentially deductive: part Descartes
and part Thomas Aquinas. Social scientists with empiricists like
Francis Bacon or Jeremy Bentham for intellectual ancestors would
not recognize the form of proof that justifies hurnan rights. Bentham
rejected the possibility of natural law (and, afortiori, natural rights) for
precisely this reason. Nevertheless, it is important to note that deduc-
tive proof was for centuries - and continues to be, by mâthematicians,
theologians, and others - considered the best kind of proof for some-
thing, if it was available. The trick for deductivists, in human rights
philosophy as elsewhere, is in finding a basis of legitimacy for the first
unproven principle, the linchpin upon which every other part of the
system is based. In human rights there are several unproven first
principles actually: common humanness as a moral quality (rather
than simply a biological fact); the assertion that this essential human'
ness entails a particular normative framework; and that this normative
framework is expressed through rights.
But to say that the idea of human rights is global from a conceptual or
philosophical perspective is both to state the obvious and to make a
point that is of only marginal importance for anthropologists and others
who study human rights as a key contemporary transnational discourse.
And, even more, the fact that the idea of human rights is global in the
abstract has misled some into assuming that human rights practices do -
or should - unfold at a much broader scale than they in fact do- In other
words, there is a significant difference in this case between the con-
ceptual scale within which the idea of human rights in its major form
must be understood - the global, or universal, these are essentially the
same for our purposes - and the scale within which human rights is
encountered in practice. This difference has made it a'difficult theo-
redcal task, among other things, to account for the different dimen-
sions of contemporary human rights discourse in a way that does not
spiral into the regress ofparticularism that often characterizes accounts
of human rights practice. Moreover, to speak of scale is to adopt a spatial
metaphor in order to locate human rights discourse as a set of complicated
10 11
INTRODUCTION: LOCATING RIGHTS, ENVISIONING LAW
social and ethical knowledge practices that appear in discrete places at
discrete time with enough autonomy that they can be isolated analyti-
cally and studied in what is often described as their "local context."
Yet it is not at all clear, as the chapters in this volume show, that
sparial metaphors are the best ordering principles for these analytical
tàsks. Some, like Annelise Riles (2000, 2004)' have suggested that the
virtuality
pursuit of
selves are
technocratic knowledge practices that constitute them. Others, espe-
cially those who adopt a non-discursive or legal approach to human
rights (e.g., Alston 2OOO,7006; Likosky 2005; Provost 2005), pursue
*h"t .orrid be understood as a hyper-spatial framework: certain key
locations and artifacts take on added significance as the places where
Universal Declaration circumscribe an actual normative space, where
the particular words used, the internal statutory architecture, and the
langUage the document is written in are reified and invested with a kind
nation-states, there is no question that to reify these interconnec'
tions through spatial models is to impose an analytical structure
that cannot account for the actual dynamism and temporality of
human rights practice. Yet the notion of scale, as several chapters
here show, is embedded in the idea of human rights itself (universality)
and a feature of human rights that serves as an ordering principle
in practice (universalism). Conversely, the virtuality, temporality,
and rransnarionalism of human rights discourse suggest that the techno'
cratic, legal, and other forms of knowledge through which the idea of
HUMAN RIGHTS BETWEEN THE GLOBAL AND THE LOCAL
human rights is translated or vernacularized, as Sally Engle Merry has
recently shown (Merry 2005),e dre constitutive, yet constitutive not of a
discrete system or perrnanent network, but only the continually emer-
gent collection of knowledge practices themselves. But to treat the study
of human rights practices as merely a problem of comparative epistemol-
ogy, as an example of competing knowledge practices that come together
within complicated "global assemblages" (Ong and Collier 2005) of
power, culture, and politics, is to ignore a key fact about human rights
discourse: that the sites where human rights unfold in practice do matter,
and that these sites are not simply nodes in a virtual network, but actual
þlnces in social space, places which can become lawlike and coercive.
How to characterize these sites, and where these places are in social
space, are questiorts which this volume, in part, seeks to answer. But for
now it is enough to recognize that the study and understanding of human
rights require a reconceptualization of both the role of knowledge prac-
tices and the related problems of scale and location.
Globaflocal and other binaries
To recognize that the study of contemporary human rights practice
requires a reframing of these ontological and epistemological problems
through empirical research is to bring us only so far.10 This is because
9 In both her recent work and in an article that is part of a coilection of essays on different
problems in the anthropology of human rights (Meny 2006), Me¡ry offers what is perhaps the
most nuanced theoretical framework for understanding what actually happens when the idea
(or ideas) of human rights is translated into the terms through which the idea becomes
meaningful in different cultural, political, and legal contexts- It was not enough, as Meny
soon discovered, to describe these processes through one or two different distinctions (vemac-
ularization, appropriation, etc.). Instead, she found that her ethnographic data suggested a
number of diffe¡ent catêgories of social practice and that these categories could explain the
range ofpossible encounters with transnational human rights discourse, which means that she
has developed a theory of human rights practice that is, to a certain extent, predictive.
l0 indeed, this recognition is far from academic, although scholars do play an impoitant role in
pursuing new orientations to a1l ofthe different problems in contemporary human rights theory
and practice. Recently, for example, the chiefprosecutor of the ICC has enlisted the assistance
of academics in dèveloping the conceptual framework within which the ICC can carry out its
responsibilities under a very general legal mandate. At a ¡ecent workshop at George Mason
University's Institute for Conflict Analysis and Resolution, Chief Prosecutor Luis Moreno-
Ocampo asked a diverse group offaculty and students to consider the relationship between
human rights and the Court's mandate to undertake prosecutions in the interests ofjustice, the
relationship between peace, justice, and human rights, and the problems of culture and tradi-
tionai justice and their impact on international legal proceedings, among othe¡ issues that
required critical and practical attention. Moreover, I recently attendeä a series of international
conferences in Gemany (October 2005, Aprii 200ó) entitled "reframing human rights," which
brought together human rights activists from around the world with mostly European and
Ame¡ican academics. The activists were, by and large, even Írore insistent than the academics
that human rights - understood broadly - were ripe for conceptual reframing.
12, t3
INTRODUCTION: LOCATING RtcHTS. ENVtStONtNG LAW
there are no obvious sources of theoretical guidance which can respond
to the need to reframe these problems that are not problematic in yet
different and, in some cases, much more serious ways. The most obvious
difficulties are creared when we consider the usefulness of the broad and
interdisciplinary body of social theory rhat frames problems of space
and social knowledge as more specific instances of the general problem
of the relation berween the global and its antithesis, the local. It is
perhaps impossible to say when the global/local dichoromy emerged as
the most common theoretical framing device for describing social
processes that span multiple boundaries, but it is likely that this
model emerged over the last fifteen years as a way of conceptualizing
processes thar were first included within the category "globalization."
The global/local social theoretical lirerarure is indeed voluminous, wirh
endless debates revolving around different arguments for how these two
levels relate to each other in terms of power, economic importance,
ontological priority, and so on. But regardless of the approach, the
global/local model for understanding widespread social processes has
certain features in common.
First, and most obviously, it assumes that there are only two levels at
which these social processes emerge or unfold, despite the many dif{ev
ent arguments - which can be either empirical or normative - about
how these levels relate ro each other. Second, the global/local model is
based on an entirely vertical sparial metaphor, with the local level at
the bottom and the global ar the rop. This verricality is presenr in every
analysis that describes particular processes "from below" or ,,from
above." An exception to this scalar verticality is when the invocation
of "below" or "above" is clearly not meant to be a spatial metaphor, but
represents a critique of existing political or legal paradigms. A good
example of this usage is Balakrishnan Raj agopal' s Internanonal Law fr om
Below, in which his use of "below" alludes to excluded and marginalized
voices within dominant international law frameworks. And there is
also a methodological argumenr in Rajagopal's rereading of intema-
tional law from below: because the structure of dominant international
law discourses - like human rights - masks cerrain forms of what he
calls "economic violence" (2003: Z3l), it is necessary to expose this
violence by studying actual social practices through ethnographic and
other form of close engagement.
Third, the globalilocal framework is dialectical in the most formal of
senses. Regardless of how a particular analysis describes the relation
between the global and local levels, it is always locked in a Hegelian
HUMAN RIGHTS BETWEEN THE GLOBAL AND THE LOCAL
embrace in which the global and the local interact conceptually
through the dynamic movement of people, cultural trends, economic
goods and services, and so on, all tending toward sorire "new world
order" (Slaughter 2004) or period of "global/local times" (Wilson and
Dissanayake 1996).ln other words, the global/local model is - perhaps
unintentionally in many cases - teleological (and perhaps utopian).
Moreover, the dialecticism of the global/local model is actually con-
sidered one of its chief advantages by scholars who employ it, in that it
serves to clear up confusion and provide a window into deeper social
forces. As Cvetkovich and Keller explain:
[d]ichotomies, such as those between the global and the local, express
contradictions and tensions between crucial constitutive forces of the
present moment; consequently, it is a rnistake to overlook focus [sic] on
one side in favor of exclusive concern with the other (rejecting the local
and particularity, for instance, in favor of exch-rsive concem with the
global, or rejecting the global and all macrostructures for exclusive
concern with the local). Our challenge is to think through the relation-
ship between the global and the local by observing how global forces
influence and even structure even lrore local situations and even more
strikingly. (1997: l-7)
Fourth, to explain transboundary social processes like human rights
discourse in part by "articulating the global and the local" (Cvetkovich
and Kellner 1997) is to both reify and then anthropomorphize what are
at best social-theoretical categories of questionable utility. The moun-
tain of literature within the global/local cortage industry - irrespective
of perspective or points of emphasis - treats these levels ( 1) as if they
had an independent empirical existence apart from their invocation by
scholars and others, and (2) describes them in a such a way that they
appear almost as social actors in their own right, moving through real
political and social time and space.
And finally (this is not an exhaustive list), most studies that adopt
the global/local framework are intemally contradictory or, at best,
analytically confusing. This confusion is particularly acute for social
scientists and others whose analyses are based on - or at least associated
with - actual social processes that unfold across different boundaries
but which cannot be easily fitted into one of the two sides in the global/
local binary. The contradictoriness of this approach is perhaps most
marked in the cultural studies literature, so that authors like Wilson
r4 15
INTRODUCTION: LOCATING RIGHTS. ENVISIONI NG LAW
and Dissanayake (1996: 6) can rail against the "'binary machine' logic
sustaining the dominant discourses of social science or political eco'
nomy" and the "by-now-tired modernist binary of the universal (global)
sublating the particular (1oca1)," while at the same time not only
adopting the global/local binary themselves, but, even more, giving it
a kind of theoretical normativity indicated by the Foucauldian forward
slash. This widely-cited work on the relationship between the global
and the local is also analytically disoriented in the way it reinscribes
transnationalism - which is a useful ordering principle - as just another
"spatial dialectic." And confusion is further produced by a prevailing
and theoretically precious cultural studies idiom, when what is needed
(at least by social scientists) is social analysis that adheres to some
semblance of analytical rigor and which is embedded in actual research
data on social practice.ll
All of this - and more - means that most of the theorizing within the
global/local framework is simply irrelevant for helping us to understand
the spatial and epistemological dimensions of transnational human
rights practices. This is also true of much of the equally voluminous
globalization literature, which suffers from many of the same problems,
but which adds to thern by overprivileging the "global" as a socio'
political frame reference at the expense of the "local," which, no matter
how misleadingly conceived within global/local studies, at least has the
advantage of gesturing toward sites of social practice whenever it is
invoked. But as a recent study of the "globalization of human rights"
(Coicaud, Doyle, and Gardner 2003), shows, there is an unfortunate
tendency for analyses of conceþtuølly global categories like human rights
to devolve into an analytical globalism, in which "global justice,"
"global institutions," "global accountability," and so on, are treated as
if they were empirical descriptions rather than political goals, or moral
ideals of particular institutions or individuals, or categorical or theo-
retical possibilities. And actual human rights practices which, as the
chapters in this book demonstrate, unfold transnationally through
concrete encounters in particular places and times, are elided as
what is described as the "local" in global/local studies is replaced by
11 A typícal example would variously track as the'transnational
imaginary' compri of contemporary cultural production by
which national sp iance and economic regulation are being
undone and imagined communities of modernity are being reshaped at the macropolitical
(elobal) and micropolitical (cultural) levels of everyday existence" (\ùTilson and Dissanayake
199ó: ó; emphasis in original).
HUMAN RIGHTS BETWEEN THE GLOBAL AND THE LOCAL
the "construction of human rights at the domestic level" (Coicaud,
Doyle, and Gardner 2OO3:77).1?
A variation on the globalization approach to what are cornplicated
transnational social processes can be seen in studies of human rights
that reframe the global/local dichotomy in terms of relations between
the international and domestic (or national) levels of norms and
political action. This is a common framework for international lawyers
and political scientists, for whom the relationship between states
within the \Øestphalian system (intemational), and the relationships
within states (domestic or national), more or less structure the way
questions can be asked and answered. The relationships within and
between these two levels - the international and domestic - are most
often analyzed in terms of different and shifting power dynamics, which
leads to studies of human rights that simply refract the binary approach
through a realist prism, The results are useful in their own terms and
represent a certain advance, if one is interested in what is actually a
quite limited corner of the total universe of human rights discourse -
that is, the relationship between "international human rights norms
and domestic change" (Risse, Ropp, and Sikkink 1999) -but studies of
the "socialization of international human rights norms into domestic
pracrices" (Risse and Sikkink 1999) (again, where "domestic" means
"national") cannot begin to shed light on the full range of human rights
practices, nor help us understand exactly where and why human rights
practices emerge in the ways they do.13
From structures of power to utopia - the emergence
of human rights networks
Much more promising for our purposes are studies of transboundary
social processes that drop the global/local: international/national
dichotomy in favor of some version of network analysis. Network
analyses emerged in large part to describe the changes in information
technology and communications over the last fifteen years, the same
period when transnational human rights discourses have become more
12 "Domestic" is taken to mean here the national level, not the individual domestic unit, or home,
which would actually come closer spatially to the places where transnational human rights
discourse takes root and is in part constituted.
13 E en if we grant the realist approach to hurnan rights some legitimacy, it is clea¡ that human
rights discourse is most often effective - or at least instrumental - in social spaces that are
neither international nor national, which is a fact that partly explains why adopting the
transnational as an ordering principle opens up so many fruitful lines for tesearch and analysis.
t6 17
INTFODUCTION: LOCATING RlcHTS. ENVISIONING LAW
prevalent and consequential. Networks describe the spaces that pro-
vide the "material organization of time-sharing social practices"
(Castells 7000 442), practices which are determined by the imperative
"not just to comrnunicate, but also to gain position, to outcommuni-
cate" (2000: 71; quoting from Mulgan I99I: ZI). Within network
analysis space is emptied of its usual ontological significance and
given what is at best a supporting function: what is described as rhe
"local" within global/local studies becomes in network analysis a node
of articulation, a l'location of strategically important functions that
build a series of locality-based activities and organizations around a key
function in the network," to draw again from Castells's important study
of the contemporary network society (2000 443).
The usefulness of network analysis, which overcomes many of the
problerns produced through the "binary machine logic" that dominates
much social theory, has been noticed by human rights scholars, parti-
cularly those who study the groups of transnational activists and others
whose activities form the "key functions" in what Keck and Sikkink
(1998) describe as "transnational activist networks." The particular
nodes of articulation within transnational activist networks are not
described in the first instance as social movements, political institu-
tions, international agencies, and so on, but rather through the differ-
ent assemblages of epistemic communities which share certain
characteristics: "the centrality of values or principled ideas, the belief
that individuals can make a difference, the creative use of information,
and the employment of nongovernmental actors of sophisticated politi-
cal strategies" in furthering the cause of human rights transnationally
(Keck and Sikkink I99B I-Z). Keck and Sikkink also offer what they
understand to be a solution to the problem of the relation between
space and knowledge practices within.transnational human rights net-
works, in that the networks are both structured and structuring -
adapting Anthony Giddens' theory of structuration - and seem ro
"embody elements of agent and structure simultaneously" (1998: 5).
In other words, the spaces of transnational human rights discourEe
and the social practices of human rights are mutually constitutive.l4
Moreover, Keck and Sikkink's application of nerwork analysis ro rrans-
national human rights advocacy is not merely - or entirely - an analytical
14 As Castells explains on this same point, "the space of [transnational] flows is consriruted by its
nodes and hubs. The space of [transnational] flows is not placeless, although its structural logic
ls" (2000:443).
HUMAN RIGHTS BETWEEN THE GLOBAL AND THE LOCAL
move, one calculated to avoid the fallacies of the globaflocal binary,
particularly in regioru like Latin America, the "network" has become a
ubiquitous social, political, and legal category within which ordinary
social actors pursue human rights, public health, economic development,
and other strategies. As they say, "over the last two decades, individuals
and organizations have consciously formed and named transnational net-
works, developed and shared networking strategies and techniques, and
assessed the advantages and limits of this kind of activity. Scholars have
come late to the party" (1998: 4).
This is an important point and one that will find echoes in our
discussion of the role of practice in helping to shape the meanings
and possibilities of human rights discourse. In Bolivia, for example, the
red, or network, is really the only organizational model within which
initiatives focused on human rights, economic reform, maternal health,
greater political pafticipation, and so on, are organized. But despite
what Keck and Sikklnk say, the development of network models by
human rights activists - in Bolivia and elsewhere (see Meny 2005;
Riles 2000; Speed 7006) _has not been an isolated, country by country
process, in which "a thousand flowers bloom, a hundred schools of
[network advocacy] contend." Indeed, in light of what Keck and
Sikkink describe about the rise of transnational advocacy networks, it
would be surprising if the emergence of jruafì cations for the network as
the prefened advocacy model did not go hand in hand with the rise of
the (networked) epistemic communities themselves. Moreover, it is
also not possible to say that particular "actors" developed networks -
and the accompanying networkism - before the participation or aware-
ness of "scholars." Not only are scholars important social actors whose
writing and presence shape transnational human rights advocacy, but,
even more specifically, in many countries like Bolivia prominent
human rights advocates are themselves full-time teachers or academics.
But even though network analysis does provide some suggestive
possibilities for conceptualiztng the study of human rights practices,
problems remain. It is somewhat ironic, given the way critical political
scientists like Keck and Sikkink have rushed to apply the insights of
network analysis to transnational human rights, that the consideration
of power as a variable shaping the transnationalization of human rights
discourse becomes obscured by what appears as an ideological faith in
the democratiziîg possibilities of networks, including human rights
networks. Despite recognizing that "many third world activists ...
[argue that] the focus on 'rights talk' . . . begs the question of structural
18 19
INïRODUCTION: LOCATING RlcHTS. ENVISIoNING LAW
inequaliry" (Keck and Sikkink I99B 215), they nevertheless go on ro
assert categorically that "networks are voluntary and horizontal, [and]
actors participate in them to the degree that they anticipate mutual
learning, respect,.and benefits" ( 19981 7I4). As several of the chapters
in this volume demonstrate, it is, in fact, a continually open question -
to be answered through the close ethnographic engagement with par-
ticular human rights practices - whether or not human rights networks
should be characterized as "vehicles for communicative and political
exchange, with the potential for mutual transformation of participants"
(Keck and Sikkink I99B:21.4), or whether the emphasis should nor be
placed on structural or other types of systemic constraints, all of which
hmit the emanicaptory potential of human rights discourse.
There is also a problem with using a network model in order to
describe the spaces of transnational human rights practice in that the
horizontality that does seem to characterize connections between diÊ
ferent network nodes cannot account for the ways in which social
actors often experience human rights "vertically," meaning as part of
hierarchical social, political, and legal alignments of inrerests. In other
words, in developing an analytical framework that will allow us to
locate the practice of hurnan rights in time and place, we must be
careful to give equal weight to what the social theorist's eye sees and
what participants in human rights networks themselves tell us abour
the meanings and experiences of human rights as it relates to other
forms of social practice. This means that, from the perspective of the
analytical observer, it might be quite clear that the webs of relations
that form human rights networks span multiple boundaries without any
obvious levels or formal hierarchy; indeed, even the idea of human
rights implies a kind of ethical flatness, somerhing that is built into the
Universal Declaration itself in that its different articles are coequal and
thus normatively undifferentiated. But since human rights discourse
always emerges - as the chapters here show - as part of broader social
structures through which meanings are constituted, the multiple expe-
riences of human rights can be actually quite constrained or locked
within what Ulf Hannerz has described as the "unfree flows" of mean-
ing that remain despite the breakdown of cultural boundaiies and the
corresponding increase in cultural complexity over the last fifteen years
(Hannerz 1992: I00). This problem with the social and political depth-
lessness implied by network analysis is one that also characterizes much
of the related globalization literature, which likewise assumes the break-
down of traditional verrical relationships and the emergence of a kind of
HUMAN RIGHTS BETWEEN THE GLOBAL AND THE LOCAL
inherentþ emancipatory set of global relations of comrnunication and
production which resist the concentration or exercise of power.
A good example of this is the most recenr book by the globalization
guru Thomas Friedman (2005), which argues that the world is becom-
ing increasing flat and that this flatness - the result of the breakdown of
established hierarchies - is the key geopolitical force behind the
empowerment of workers and industries outside the traditional centers
of global economic power. In his critique of Friedman's book - mis-
chier¿ously entitled "The !7orld is Round" (Gray 2005) - the British
political theorist John Gray effectively flattens Friedman's flatness
hypothesis, not only showing that its horizontality is more ideological
than empirical, but that it is actually a kind of neo-Marxism!
Nevertheless, as with Friedman's other globalization books, the uto-
pianism of his perspectives on contemporary economic and political
relations remains extremely popular, even soothing, to the vast swaths
of the Euro-American bourgeoisie that have rushed to jump on the
globalization bandwagon, 1 5
And finally, in moving away from the global/local dichotomy in
order to conceptualize the relationship between structure and agency
within transnational human rights discourse through network analysis,
we must be cautious not to overprivilege the role of cosmopolitan elites,
those "activists without borders" whose very movements across both
cultural and territorial boundaries seem to symbolize the normative
transnationalism they advocate. The ethnographic study of human
rights practice over the last fifteen years has shown that "transnation-
alism" has different meanings and should not be simply understood as a
more accurate or revealing "ontological choice" (Orenstein and
Schmitz 2006).ln other words, transnationalism should not only be
taken literally to refer to networks that open up - physically or dis-
cursively - beyond the boundaries of nation-states, as important as this
meaning of transnationalism is - among other things - for moving the
focus of attention away from both the state and international insti-
tutions. To take úansnationalism too literally is naturally to concen-
trate on the range of social actors whose activities are most symbolic of
the trans-boundary and horizontal interconnections that define (for
example) contemporary human rights networks. But many of the
most important actors whose encounters with human rights discourse
15 As of April 2006,'theWorlÀisFlntremained in the top five on theNewYorkTímes nonfiction
bestseller list and numbe¡ two anong all books at Amazon.com - rightafter'fheDaVinciCode.
z0 7t
INTFODUCTION: LOCATING RlcHTS. ENVISIONING LAW
contribute to its transnationalisn never physically leave their villages,
or towns, or countries. Instead, in order to encounter or appropriate the
idea of human rights many social actors must ent,ision the legal and
ethical frameworks that it implies, which requires the projection of the
moral imagination in ways that not only contribute to hovv we can (and
should) understand the meaning of human rights, but also, at a more
basic level, suggest that the emergence of transnational networks takes
places "in our minds, as much as in our actions," a fact that Boaventura
de Sousa Santos describes - in another, but related, context - as
"interlegality" (1995: 47 3),
Betweenness and the human rights imaginary
The chapters in this volume suggest yet a different framework for
locating the practice of human rights. By describing the locations in
which human rights discourse emerges in practice as "between" the
global and the local, we do not intend to replace one spatial metaphor
with another. Indeed, it is partly our argument here that "ontological
[or epistemological] choices" have the effect of severely limiting the
ability ofresearchers to capture both the patterns across transnational
human rights practice, and the ways in which such practic€S âÍ€ rrori.
generalizable and contingent upon the entire range of legal, political,
and social variables that shape them. Instead, betweenness is meant to
express the ways in which human rights discourse unfolds ambiguously,
without a clear spatial referent, in part through transnational networks,
but also, equally important, through the projection of the moral and
legal imagination by social actors whose precise locations - þaceKeck
and Sikklnk - within these networks are (for them) practically irrele-
vant. So, although Eleanor Roosevelt, the chair of the commission that
was responsible for drafting what became the Universal Declaration of
Human Rights (1948), hoped that a "curious grapevine" would carry
the idea of human rights across state boundaries (she didn't describe
this grapevine as a "network," but that is close to what she meant), the
recent study of human rights practice has shown that actors (including
academics) contribute to this grapevine in ways that are more compli-
cated than simple network analysis assumes.
Yet even though betweenness is employed here as an analytical
device meant to both emphasize the nonuniversality of human rights
practice, and create an intentionally open conceptual space which can
account for the way actors encounter the idea of human rights through
the projection of the legal and moral imagination, we neverrheless
HUMAN RIGHTS BETWEEN THE GLOBAL AND THE LOCAL
retain "global" and "local" as referents. There are three reasons for this.
First, despite the fact that global and local are highly problematic ways
of framing the ontology of transnational human rights discourse, the
binary global/local remains an important part of human rights discourse
itself. Human rights activists talk in terms of global movements and the
globalization of human rights; intemational institutions denounce rhe
resistance of local institutions or cultures to the realization of a global
human rights culture; the use of metaphors of the ultra-local - such as
grdssroots, which implies a kind of localism that actually burrows into
the earth itself - takes on political meaning for human rights organ-
izations; and, as I have already argued above, "the global" continues to
be used teleologically, as a gesture toward the goal of transnational
human rights discourse, the creation of a global moral community.l6
Second, while we reject the reification of the global and local as
points in an imaginary discursive hierarchy, we nevertheless believe
that maintaining them in a different form allows us to emphasize the
power asymmetries that have framed the transnationalization of human
rights discourse over the last fifteen years. In other words, describing
the practice of human righßbetweenthe "global" and the "local" evokes
a self-consciously artificial verticality which serves a specific analytical
purpose, one that should not be taken to imply an actual "top down" (or
"bottom up") relationship between the different nodes within transna-
tional human rights networks. Finally, if retaining the global and local
within our study of human rights practices provides a way of illustrating
the empirical dimensions of power within transnational human rights
networks, it also recognizes an equally important side to the way power
is mobilized through human rights discourse: the fact that human rights
actors often experience human rights discourse betwixt and between, as
a kind of legal or ethical liminality that can both empower the rela-
tively powerless and place them at a greater risk of further violence at
16 This ernphasis on the global is reinforced by the academic human rights studies literature,
which analyzes the global dimensions of human rights from every possible angle: the way
human rights are an essential feature of globalization (Coicaud, Doyle and Gardner 2003); the
fact that neoliberal globalization is incompatible with the protection of human rights (George
2003 ); the ways in which human rights form the foundation of an ernerging global order based
on news forms of sovereignty (K. Mills 1998); the relationship between human rights and an
"ethic of global responsibility" (Midgley 1999); the ways in which human rights give voice to
the oppressed within an emerging "global society" (Shaw 1999); rhe fact that the ethnographic
study ofhuman rights should be undertaken from a global perspective and framed in relation to
the emergence of other global discourses, such as "global justice" (\ùTilson ar-rd Mitchell 2003 );
the role that human rights has played in creating a "global village" of rights-bearing cirizens
(Brysk 2000); and so on.
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INTRODUCTION: LOCATING RIGHTS, ENVISIONING LAW
the same time. As activist-scholars like Shannon Speed have recently
shown (2006), the use of human rights discourse within ongoing politi-
cal and social movements has the effect of radically shifting the frame'
work within which apparendy "local" struggles are waged. But, at the
same time, the liminality that is created by the introducdon of human
dramatically
he social and
and the local
are unpredictable.
THE PRACTICE OF HUMAN RIGHTS
The chapters in this volume suggest the diversity and ambiguity among
the multiple meanings of human rights; they also point to a different
way of conceptualizing the discursive spaces in which transnational
human rights networks are constituted. Both of these contributions -
among others - are based on the close and critical engagement with the
pracrice of human rights in different regional and cultural contexts. But
what exactly do we mean by the practice of human rights? At a basic
level, the practice of human rights describes all of the many ways in
which social actors across the range talk about, advocate for, criticize,
study, legally enact, vernacularize, and so on' the idea òf human rights
in its different forms. By social actors we mean all of the different
individuals, institutions, states' international agencies, and so on,
who practice human rights within any number of different social con-
texts, without privileging any one type of human rights actor: the
peasant intellectual in Bolivia who agitates on behalf of d.erechos
htmvnps is analytically equal to the executive director of Human
Rights Watch. In defining the practice of human rights in this way
we draw attention to both the diversity of ways and places in which the
idea of human rights - again, in its legal, conceptual, and discursive
forms - emerges in practice, and the fact that the practice of human
rights is always embedded in preexisting relations of meaning and
production. The practice of human rights, defined in this way, is
obviously a major part of transnational human rights discourse.
Nevertheless, the idea of human rights discourse implies a set of
structural relationships that mediate the practice of human rights, so
that one cannot simply treat human rights pràctice and human rights
discourse as different descriptions of the same thing; in other words,
human rights discourse is the more encompassing category.
THE PRACTICE OF HUMAN BIGHTS
There are several important implications to the way we define the
practice of human rights. First, to adopt such a broad definition of human
rights practice is necessarily to reject all of the traditional analytical
divisions that have been used to artificially parse the different types of
engagement with human rights: berween the philosophy of human righrs
and human rights practice; berween human rights law and the polirics of
human rights; between the abstract idea of human rights and its messy
and contradictory emergence within situated normativities; berween
universal human rights and the culturally-specific legal or ethical forms
in which they are expressed; and so on.17 Thir has been one of the most
important contributions of the ethnographic study of human rights over
the last ten years. This research, which has been documented in a series
of edited volumes (Bomema¡}}}4;Wilson 1997; Cowan, Dembour, and
\Øilson 2001; Wilson and Mitchell, 7003), and in more traditional
monographs (Malkki 1995; Merry 2005; Povinelli 7002; Riles 2000;
Slyomovics 2005), has demonstrated the fôllowing (among other
things): that the idea of human rights is developed further, or trans-
forrned, or culturally translated, for political, economic, and other for-
mally nonphilosophical reasons; that the norion of transcultural
universal human rights is itself a product of particular histories and
cultural imperatives, so that it is simply not possible to consider the
idea of human rights "in the abstract;" rhat rhe different ways of describrng
the expression of human rights - in law, in politics, within economic
relations - are at best temporary analytical expedients, whereas these in
fact refer to fundamentally interconnected processes; and, perhaps most
importantly, that non-elites - peasant intellectuals, villages activisrs,
govemment workers, rural politicians, neighborhood council members -
are very often important human rights theorists, so that the idea of
human rights is perhaps most consequentially shaped and conceptual-
ized outside the centers of elite discourse, even if what can be under-
stood as the organic philosophy of human rights is often mistakenly
described as "practice" (i.e., in false opposition to "theory").
And if the way we define the practice of human rights here is, in part,
an argument for a different approach to human rights theory, rhen we
must recognize that there are consequences to acknowledging that the
17 It is rrot surprisìng that the traditional analytical divisions in the human rights literature are
framed as dichotomies given the prevalence ofrelated bina¡ies that I describe in Pa¡t Two ofthis
book. One detects, in the orthodox study ofhuman rights, specific expressions ofall the tlpical
oppositions: theory and practice; structure md agency; pure and practical reason; tradition and
modemiry; communicative and subject-centered rationality; and so on.
z4 25
INTRODUCTION: LOCATING RIGHTS. ENVISIONING LAW
idea of human rights is subject to - or the product of - open source
theorizing: the meanings of human rights will remain contextual and
relative (rh"t t d.r.rib". above as "universalism"); all truth claims on
behalf of a particular approach to the idea of human rights are rein-
scribed within the particular intellectual and political histories that
produced them; and because the idea of human rights is essentially
contingent and dynamic, its future is far from assured. If the idea of
human rights is consrirured through all the different forms of practice
that anthropologists and others have so richly documented, then there
is no reason why circumstances in certain places and times (or, indeed,
more broadly) might not cause the practice of human rights - and thus
the idea - to end, at least in its current transnational forms.
Finally, there are political or institutional implications to conceptua-
lizing the practice of human rights in the way we do in this volume. If
the ethnographic study of human rights has shown that the practice of
human rights is characterized by contradictions, uncertainties, and a
kind of normative incompleteness' these shodld not be taken to repre'
sent a failure of universal human rights as a coherent legal or ethical
framework, or, on a more practical level, a failure by different institu-
tions to properly translate the idea of human rights in context. Rather'
the openness and incompleteness within the practice of human rights
are essential to the development of what are different - but living and
organic - ideas of human rights, which can be expressed politically and
their
versal
iversa
and legal practices that emerge inrelntion to the putative universality of
human rights^ Even if discourses of universalism obviously gesture
toward the supposed universality of human rights, in practice this
connection is often weakened because the ontological framework
expressed through human rights must be reconstituted in terms that
resonate culturally and politically. And to reconstitute the idea of
universal human righcs is, in part, to find grounds on which a formally
transcultural ethical and legal framework can be maàelegitímate. This
means that legitimacy - which is a key problem for human rights
acrivists and lawyers in particular - is also anchored in social practice.
18 One of the best examples of the
legitimate categories of legal,
debates over human rights and
26
FOUR THEMES IN THE PRACTICE OF HUMAN RIGHTS
This is a problem - to be sure - from a certain legal and philosophical
perspective, but it seems unavoidable and is yet another important
implication of the study of human rights practices.
FOUR THEMES IN THE PRACTICE OF HUMAN RIGHTS
Although we intend this volume to contribute to new ways of con-
ceptualizing the practice of human rights as a key úansnational dis-
course, we are also aware that it represents only the beginning of what
we hope will be an interdisciplinary dialogue on the meanings and
possibilities of human rights within the orientations'we develop here.
As should be abundantly clear from the way I have described the
volume's major claims, the volume itself is thematic rather than dis-
ciplinary. There is a certain risk in reframing human rights studies in
this way, not the least of which is the fact that particular disciplinary
perspectives have had a larger stake than others in defining both the
tefms of analysis, and the ways in which ideas about human rights have
been translated into political and social action. But in drawing out
themes in the practice of human rights we hope to cÍeate a space for
collaborative dialogue and critique that is not dependent on the range
of entrenched theoretical or institutional paradigms. To do this we
have brought together scholars whose contributions coalesce around
four openings or themes in the practice of human rights: violence,
power, vulnerability, and ambivalence. In making the argument that
these four themes reveal, among other things, the potential and limi-
tations of universal legal or ethical frameworks, certain insights into
how transnational discourses are to be understood and where they are
to be located, and the persistence of structural inequalities and forms of
pressure within human rights networks, we recognize that there might
be other points of entry into the practice of human rights, other ways of
organizing a thematic approach to human rights problems. In other
words, although these four themes emerge from the study of human
rights practice itself, as the chapters here demonstrate, we expect that
other windows into the practice of human rights will emerge as more
scholars and activists recognize its implications.
States of violence
The problems of violence have become epistemic within the practice
of human rights. These include the relationship between violence as
a complicated and historically specific social process and universal
z7
INTRODUCTION: LoCATIÑG RIGHTS. ENVISIONING LAW
human rights, and the ways in which "violence" itself becomes problema-
tized in cerrain ways - which exclude others - within transnational rights
discourse (Rajagopal 2003). There is also aphenomenological dimension
to violencewithin the practice of human rights: social actors experience
violations and abuses at different levels of directness and remove; from
sychological trauma, to the vicarious
what Richard Rorty has described as
1993). The study of these different
in Bolivia is understood in different ways depending on which tfansna-
tional discourse is mobilized to address it. During the rise of neoliberalism
in Bolivia, human rights discourses were deployed by political and social
movements as part of various national campaigns against poverty,
domestic abuse, the neglect of children, and so on. But in certain parts
of Bolivia, like the peri-urban bmnos of Cochabamba, the most serious
FOUR THEMES IN THE PRACTICE OF HUMAN RIGHTS
a kind of categorical violence, since human rights assumes a form of
identity - possessive individualist - that is at odds with basic Buddhist
philosophy and theolog¡ In other words, in order ro use human rights
discourse to support claims for Buddhist autonomy and religious free-
dom, Buddhists were forced to advance claims that undermined
Buddhism itself. Leve describes this kind of violence as a "double-
bind." As she purs it, rhese are the "double-binds Nepali Buddhists
confront when they call on normative values associated with liberal
democratic citizenship 'to protect a form of religious selfhood that
denies the very logic of identity that human rigþts implies."
Registers of power
Despite the fact that human rights activists and scholars have persis-
tently argued that transnational networks are inherently empowering
and counterhegemonic frameworks for organizing the expansion of
human rights discourse in its different forms, the close ethnographic
engagement with the practice of human righß over the last fifteen years
has revealed a more complicated picture. The ways in which power is
expressed through - and within - human rights networks demonstrate
that generalizations are problematic: for example, economic and other
related pressures are clearly behlnd debates over human rights compli-
ance within the Europeaó lJnion's so-called eastern enlargement,
which has unleashed a kind of "moral imperialism" (Hernández-
Truyol 2007) dftected toward countries like Romania (see Goodale
ZOO5);re but at the same time, a wide range of studies has shown that
transnational human rights discourse does provide at times a radically
transformative framework within which the different expressions of
power can be resisted, from rights-based sex worker organizations in
the Dominican Republic (Cabezas Z00Z), to the use of arguments for
religious rights to resist the Chinese state in Tibet (M. Mills 2003), to
the many examples of collectivities of different types (indigenous
peoples, linguistic minorities, and so on) harnessing the power of
human rights discourse as part of wider political and legal struggles
(Cowan 2OO1; Jackson, chapter 5 in this volume).20
le O. thir point, see also Laura Nader's analysis of power within human rights networks (Nader
1999), in which she critiques the way intemational institutions and dominant narion-srares
-^ address human rights iss¡es based on self-interest and other ethically unsustainable grounds.
'" Although it should be pointed out that in Cowan's study of the use ofhuman rights discourse by
the Macedonian minority in Greece, the relationship between human iights language and
claims and political emancipation is far from unambiguous.
ZB 29
INTRODUCTION: LOCATING FIGHTS, ENVISIONING LAW
The two chapters in this section that focus on power as a theme
within the practice of human rights likewise demonstrate the com-
plicated meanings and implications of human rights discourse for
actors engaged in movements for social change. My own chapter
examines distinct but related processes in contemporary Bolivia. The
first is the emergence of transnational configurations I call "empires of
law," and Bolivia's location within these empires. Since the end of the
Cold \ù7ar, human rights discourse has increasingly acted as a conduit
for specific - and much older - forms of transnational legal, economic,
and political power. But social actors in Bolivia have picked apart and
appropriated only some aspects of human rights discourse, a process
that Sally Merry has described as "vernacularization" (7005,2006), in
order to construct discursive frameworks for contesting the same
neoliberal policies through which human rights emerged in Bolivia. I
call this the Pandora's box of neoliberalismr when the power of one part
of neoliberalism (human rights discourse) is used to resist other parts
(privatization of utility concerns, the rationalization of land tenure,
democratization, the capitalization of property, and so on).
Shannon Speed's chapter explores the relationship between human
rights, social movements, and power in another part of Latin America-
Her study of the Zapatísta Junns de Buen Gobierno, or Good
Governance Councils, in Mexico's Chiapas region, captures another
way in which human rights discourse at times generates a set of unpre-
dictable logics - of rule, of the market' of law. In the case of the
ZapatistaJwttas de Bu.en Gobierno, the very idea of human rights itself
has been reconfigured through the practice of the dominant version of
human rights recognized by both the neoliberal Mexican state, and the
transnational actors who intervened on behalf on Mexico's indigenous
peoples. As Speed explains, Zapatista leaders have developed an alter'
native human rights ontology in which rights "exist" only in their
exercise. This is an organic theory of human rights, one in which
Zapatista human rights practice is invested with both cultural and
politico-legal legitimacy by the Zapatistas themselves.
Conditions of vulnerability
Vulnerability is another opening into the practice of human rights,
another key theme that emerges from the ethnographic and critical
engagement with human rights discourse in its different expressions.
The international human rights system, though founded on statements
of largely individual rights, was nevertheless created in order to protect
FOUR THEN/ES IN THE PRACTICE OF HUN/AN FIGHTS
vulnerable populations against the kind of large-scale outrages that
had plagued Europe - and, to a lesser extent, other parts of the world,
such as east Asia - for much of the first half of the twentieth ."rrtrrry."
It is therefore axiomatic that the intemational human rights system
is mobilized to protect populations in jeopardy, and, indeed, states of
vulnerability have come to form the rationale for a permanent set of
intemational (and transnational) interventions in the form of the
ICC, postconflict truth and reconciliation commissions, International
Labor Organization activism on behalf of indigenous and "tribal"
peoples, and so on.
But the problem of vulnerability as a distinct category of meaning
within human rights regimes has not been adequately examined. How,
for example, does the employment of human rights as a normative
framework actually affect the ongoing set of causes of vulnerability,
regardless of how this is defined? If the opposite of vulnerability (stabi-
li.v) - il in fact, we agree that stability is the opposite of vulnerability -
is the real goal toward which interventions are directed, then is human
rights discourse the best, or even most appropriate, framework for such
interventions? Finally, what can the practice of human rights tell us
about the usefulness of describing vulnerability in this way, as a trans-
cultural ordering principle which justifies the range of intemational
and transnational interventions?
Jean Jackson's chapter on the complicated intersections of human
rights, law, and indigenousness in Colombia reveals the ways in which
vulnerability takes on different meanings for different social actors
within wider political and legal struggles. As she has done in her earlier
work on the political and conceptual elasticity of "culture," here
Jackson examines a series of legal cases in Colombia in order to show
that vulnerability has been largely misconceived within conventional
transnational human rights discourse. This is, in part, due to the fact
that the rise of human rights in Colombia must be seen against a
backdrop of ongoing violence, which shapes the way human rights
are used in particular political and legal contexts. As she explains,
"Vulnerable indigenous populations in rural Colombia, in their effort
to find and maintain stability in a situation of tremendous violence
and government neglect, enlist particular traditions and authorize
2l As th" intellectual historian Isaiah Berlin once said, "l have lived through most of the
twentieth century without, I must add, suffering personal hardship. I remembet it only as the
most terible century in lyestem history."
30 3l
INTBODUCTION: LOCATING FIGHTS. ENVISIONING LAW
particular actors to carry out actions that without doubt challenge the
transcultural scaffolding of the human rights regime."
In her critical analysis of the 2000 UN anti-trafficking protocol, Kay
Warren examines the problem of vulnerability within human rights
from yet another perspective. The study of the way hurnan rights
documents are produced is'a well-established means through which
the contradictions and contingencies of human rights practice are
revealed, since human rights are so clearly shaped by the technocratic
knowledge regimes that underpin the contemporary intemational legal
human rights system. In exploring the way the problem of human
trafficking is both understood and constructed within the international
human rights community, \ü/arren shows how vulherability acts as a
mediating framework that establishes discursive (and, in this case,
legal) boundaries around what is in fact a complicated set of political,
legal, sexual, and moral processes. As she found, the machinery of
intentional human rights law was mobilized in an "attempt to tame
this heterogeneous reality so it could be comprehended as an entity
appropriate for a certain set of interventions." The discourse of vulner-
ability, in other words, works both to simplifu different slices of "hetero-
geneous reality" and to reinterpret them in ways that bring them within
the ambit of (new) categories of international human rights law.
Encountering ambivalence
Finally, the study of the practice of human rights is also necessarily the
srudy of the donors and institutions whose suppoft - financial, political,
ethical - is a key variable that shapes the impact and meanings of
human rights in context. The role of transnational human iights
institutions is marked by several forms of profound ambivalence. For
example, transnational donors are often caught between the demands
of their own articles of incorporation or policy objectives - whlch
typically define the institutional mission in terms of some normative
good, like fostering a respect for human rights - and the demands of
realpolitk, which force ffansnational actors to make choices, compro-
mise, and redirect finite resources, for reasons that have nothing to do
with fostering or protecting human rights. And if human rights has
become a key transnational normativity over the last fifteen years, it is
not the only one. It is not uncommon for transnational donors to work
under a mandate that prescribes what are actually - at least concep-
tually - competing normative agendas, or at least agendas that coexist
uneasily, so that an institution might work for human rights, social
FOUR THEN/ES IN THE PFACTICE OF HUIVIAN RIGHTS
justice, environmental protection, and economic development (or
justice), at the same time.zz In practice this transnational normative
pluralism can create confusion - and, at times, cynicism - for both
transnational actors and their intended beneficiaries. Confusion (or
cynicism) can lead to ambivalence about the efficacy or value of any
one of these competing agendas, but what has become - in light of the
amounts of money involved - a marketplace of transnational norma-
tivity can also create openings for social action by providing a klnd of
nienu of options for individuals or groups enmeshed in ongoing strug-
gles of different kinds.
John Dale explgres the problem of ambivalence-through an analysis
of the use of the Alien Tort Claims Act (ATCA) by activists involved
in the transnational Ffee Burma movement. Dale shows how the threat
of a novel legal strategy against a transnational corporation by victims
of human rights abuses in Burma altered the transnational legal land-
scape in subtle ways. Yet, as Dale's description of the different legal
proceedings, negotiation, and aftermath makes clear, much of this
alternation was unintended. In other words, the case against Unocal
might, or might not, serve as a precedent for future claimants seeking to
find legal arenas for human rights claims. Dale's chapter, whlch begins
as a story of optimism by transnational human rights activists, ends on a
note of multifaceted ambivalence: on the part of "foreign policy con-
servatives who have appropriated the language of international human
rights for their own purposes"; on the part of ffansnational corporations
who must look to the Unocal case as either a cautionary tale, or an
example of how human rights claims become just another cost of doing
business; and, finally, on the part of victims of human rights abuses,
who desperately want - and need - ways to put teeth into international
human rights, but who end up suffering anew when their efforts fizzle
out in the Dickensian world of legal procedure and institutional
compromlse,
The theme of ambivalence within the practice of human rights is
approached quite differently by Sari Wastell, in her analysis of the
22 Many examples of this could be given. Catholic Relief Senices undertakes projects around the
world to promote the capacity for econornic development, food security, gender equality, social
justice, and human rights (w.catholicrelief.org). The Aga Khan Development Network
advances the causes of"health, education, culture, rural development, institution-building and
the promotion of economic development" (www.akdn.org/about.html). !7orld Vision
In¡emational is concemed with chlld labor, debt reliei the use of child soldiers in armed
conflicts, the advancement of human rights, and the "hope of renewal, restoration, and
reconciliation" that is offered by "God, in the person of Jesus Christ".(ww.wvi.org).
32 ?1
INTRODUCTION: L0CATING RlcHTS, ENVtSiONtNc LAW
political, legal, and cultural processes surrounding the struggles over a
new constitution for the African kingdom of Swaziland. Here transna-
tional legal experts were surprised to find the narrative of constitution-
alism in Swaziland unfolding in completely unpredictable and
ambiguous ways. Although some Swazi subjects had pressed for multi-
party democracy and human rights in Swaziland for at least a decade,
other large swaths of Swazi society resisted the constitutional process.
As Wastell explains, "[a]nticipating that the very constiruencies who
had long pressed for multi-party democracy, the observance of the rule
of law and the recognition of human rights ih the country would
welcome the constitution's passage into law, many were surprised by
the vehemence with which the document was roundly rejected." This
ambivalence was the result of different and cross-cutting political and
cultural factors, but the most important was the fact that human rights
discourse, as understood by ordinary Swazis, seemed to express a value
system that was opposed to Swazi custom. As \Øastell shows, Swazi
custom emphasizes responsibilities to community, responsibilities
which are centered on Swazi family and social relations more generally.
It is through custom- that one becomes Swazi. Human rights, however,
place the highest value on one's humanness, which is invested with
normative significance. So, for many Swazis, the adoption of human
rights within the new constitution would have meanr the adoption of a
legal framework that rejected the sftucture of Swaziness, and thus the
essence of the Swazi nation itself.
The volume is brought to a close with a concluding chapter by
Richard ì7ilson. \Øilson has played an important role in making the
ethnography of human rights a robust area for debate and scholarship
within anthropology over the last ten years. Through a series of edited
volumes (Wilson 1997,}})I;\Tilson and Mitchell2003) and his study
of the politics of truth and reconciliation in South Africa (2001),
among other works, Wilson has helped to make the practice of
human rights a legitimate and compelling object for empirical research.
More recently, he has broadened his range of interests as the director of
an interdisciplinary human rights institute. This position has given him
the chance to reflect on both the radical porenrial, and limitations, of
anthropological approaches to human rights theory and practice.
He titles his contribution "Tyrannosaurus Lex'l as a way to signal a
note of pragmatic caution for scholars and others who might lose sight
of the fact that the international human rights system is, at least
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38
PART ONE
STATES OF VIOLENCE
... En líneas generales, el artículo cuestiona una corriente dominante en los estudios sobre la administración de justicia en ámbitos comunales en el Perú, que prioriza la identificación de sus elementos «consuetudinarios» y que la identifica como aislada de las instituciones jurídicas del Estado -y muchas veces opuesta a ellas-y sus procedimientos (Brandt, 1986;Núñez, 1996). En cambio, propone que las rondas campesinas constituyen un ámbito privilegiado para el estudio del pluralismo jurídico, entendido, en términos de Goodale (2007), como la posibilidad de que «múltiples sistemas legales puedan coexistir en la práctica en el mismo espacio sociopolítico» (p. 57, traducción nuestra). ...
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El estudio aborda la justicia intercultural en el Distrito Judicial de Puno, pues se observan rupturas y desencuentros entre el sistema de justicia ordinaria y el sistema de justicia especial, así como sus posicionamientos en un contexto de diversidad cultural y lingüística. Frente a tal situación, desde el Poder Judicial se promueve el enfoque de justicia intercultural que reconoce el rol que cumplen las rondas campesinas y los tenientes gobernadores en diferentes parcialidades, comunidades campesinas y centros poblados de Puno. Los objetivos específicos del trabajo son a) la formulación del mapeo de actores a nivel de la dimensión territorial y temática: la justicia intercultural, que considera a los sistemas de justicia ordinario y especial; b) la identificación de las opiniones y posturas en relación con la justicia intercultural desde los actores, en el marco de los derechos étnicos y culturales, y desde el respeto de los derechos humanos; c) la identificación de casos frecuentes como la violencia familiar, uno de los problemas más comunes en el ámbito rural, que tensiona con las dos formas de administración y resolución de justicia; y d) el estudio de caso de tenientes de Huancané, quienes mantienen un sistema de organización tradicional y ancestral.
... En líneas generales, el artículo cuestiona una corriente dominante en los estudios sobre la administración de justicia en ámbitos comunales en el Perú, que prioriza la identificación de sus elementos «consuetudinarios» y que la identifica como aislada de las instituciones jurídicas del Estado -y muchas veces opuesta a ellas-y sus procedimientos (Brandt, 1986;Núñez, 1996). En cambio, propone que las rondas campesinas constituyen un ámbito privilegiado para el estudio del pluralismo jurídico, entendido, en términos de Goodale (2007), como la posibilidad de que «múltiples sistemas legales puedan coexistir en la práctica en el mismo espacio sociopolítico» (p. 57, traducción nuestra). ...
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"Conflicto y justicia en comunidades campesinas, comunidades nativas y rondas campesinas en el Perú procura ser un aporte para expandir la evidencia etnográfica a partir de i) la metodología cualitativa proveniente de ciencias sociales como la antropología y la sociología, poniendo énfasis en la misma población y sus autoridades, y en el estudio y la reconstrucción de casos; ii) la diversificación de los tipos de autoridades especiales y las zonas geográficas, al abordarse, por ejemplo, tanto a la ronda campesina de Cajamarca como a las autoridades comunales del sur andino (Ayacucho y Puno) y de la Amazonía (Selva Central y Amazonas); y iii) el énfasis en los casos de violencia basada en género, tema transversal en la mayoría de estos estudios, mediante el enfoque en la articulación entre los distintos actores para la resolución de este tipo de casos, considerando su prioridad en la política institucional del Poder Judicial."
... 2. The tendency to frame environmental problems as either "global" or "local, " making invisible the institutional responsibilities at different levels (Cash et al. 2006) and their inseparability (e.g., water, air, species, people, trade, etc. are all both local and global). 3. The differences between the general principles expressed during international summits and the measures through which that environment language is translated and reappropriated in distinct orders (Merry 2006;Goodale 2007;Eslava 2016). 4. The evolution and adoption of coalitions that surpass national, regional, and local states (Bringel 2014;. ...
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...This chapter reflects on Colombia’s PCM within the context of just sustainabilities, while exploring the following tensions within the movements that challenge its success and yet simultaneously prompt its enactment: (1) A national domestic development policy that relies on extractive industries with steep environmental and social costs despite opposition at the community level; (2) The obstacles to popular participation in democratic states, and the concurrent emergence of social movements seeking to defend their identities and relationships with nature; (3) The connection of injustices locally and globally that build regional, national, and transnational alliances, such as climate change as a challenge of collective action. This chapter is divided into three parts. First, we analyze what the growth of Popular Consultations has meant to just sustainabilities in Colombia, considering that the nation’s economy is based on natural resource exploitation, as well as the government and corporate barriers to this participation mechanism. Second, we discuss the objectives of this mobilization and how they connect to global efforts to combat climate change through just sustainabilities. Third, we describe how local stories were spread through other villages, revealing that the sum of joined solidarities among different movements is an essential element to achieve just sustainabilities.
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This dissertation offers a qualitative, comparative, bottom-up exploration of journalists’ responses to impunity for violence against journalists in two Latin American countries where this problem is particularly egregious, Mexico and Honduras. It provides a critique of IR/politics debates on the value of international human rights (IHR) law/norms to local civil society groups and actors. Drawing on scholarship on civil society and coping strategies in violent/repressive contexts, it asks what people do when state and international protection and the domestic civil society “enforcement mechanism” for IHR standards fail. Via thematic analysis of 67 interviews with journalists and protection actors, I show that journalists used several interlinked strategies to seek justice and protection: domestic and international (engaging with the state via intermediaries – “protection approaches”), and activist and professional (“self-protection approaches”). Journalists rarely mobilised around IHR standards or legal rights, instead depending on (I)NGOs. While protection approaches were necessary and valued, they were usually insufficient to achieve security and justice: context-dependent and limited – particularly in terms of addressing impunity – and frequently risky for journalists. Hence, journalists often supplemented/replaced protection with self-protection approaches. But certain self-protection practices could actually undermine journalists’ security, as well as journalism itself and public perceptions of the profession, including some grassroots forms of activism, self-censorship and co-optation. Consequently, some journalists were developing broader self-protection strategies to transform the profession and practice of journalism. These strategies went beyond immediate physical security, combining protection and professionalisation to improve journalists’ work as well as continue it more safely, and building their credibility and public support. This indicates the significance of the norms of professional journalism over IHR norms in this case. Although no substitute for effective state protection, such professional strategies were a crucial complement, with potential to make important contributions to societal pressure for justice and state protection.
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Bu çalışmada uluslararası örf ve âdet hukuku ile uluslararası insan hakları hukuku arasındaki ilişki incelenmektedir. Uluslararası insan hakları hukuku uluslararası hukukun görece yeni bir alt dalı olup, İkinci Dünya Savaşı sonrasında ortaya çıkmıştır. Doktrinde uluslararası insan hakları hukukunun kaynaklarına ilişkin tartışmalar hâlâ devam etmektedir. Bu tartışmalardan bir tanesi de uluslararası örf ve âdet hukukunun, uluslararası insan hakları hukukuna kaynaklık edip etmediğine yöneliktir. Doktrindeki bazı yazarlar, uluslararası örf ve âdet hukuku normlarının uluslararası insan hakları hukuku kurallarının kaynağı olamayacağını ileri sürseler de eldeki çalışma bunun aksini iddia etmektedir. Bu amaçla çalışma öncelikle uluslararası örf ve âdet hukuku ile uluslararası insan hakları hukukunun genel niteliklerini kısaca açıklamaktadır. Daha sonra ise bu ikisi arasındaki ilişkide, ilkinin ikincisine erga omnes nitelik kazandırarak olumlu, ancak bazı devletleri kuralların oluşum sürecinden dışlayarak olumsuz etki yaptığını ileri sürmektedir. Bu olumsuz etki özellikle Uluslararası Hukuka Üçüncü Dünya Yaklaşımları literatürü üzerinden açıklanmaktadır.
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Derechos humanos y grupos vulnerables en Centroamérica y el Caribe identifica, con un enfoque inclusivo, todos los grupos de personas que se encuentran en situación de vulnerabilidad en Centroamérica y el Caribe, en una serie de estudios realizados por destacados especialistas regionales y subregionales, en los dos tomos que integran esta obra. El primer tomo aborda tres grupos vulnerables: las mujeres, los migrantes, y los niños y niñas y adolescentes. El segundo tomo se dedica al análisis de otros grupos vulnerables como las personas mayores, las personas víctimas de desplazamiento forzado, las personas con discapacidad, las personas defensoras de derechos humanos y los pueblos indígenas, entre otros. Los objetivos de esta coordinación son, por una parte, reconocer el ámbito protector que constituye el sistema interamericano de derechos humanos, y por otra parte, contribuir a la comprensión panorámica y a la vez profunda del estadio de desarrollo en el que se encuentran la justiciabilidad, la jurisprudencia y la sociología jurídica de los derechos humanos de los grupos más vulnerables de la subregión de Centroamérica y el Caribe.
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The realization of human rights standards depends in part on the commitment of local actors. It can be argued that local public service professionals such as social workers can also be regarded as key players. The possible role of social workers becomes imperative if these professionals are working in a policy context that is not congruent with human rights. If existing laws or policies cause or maintain disrespect for human rights, social workers are in a position to observe that this is having an adverse impact on clients. When social workers are regarded as human rights actors, the question arises how they can or should respond to law and policy that impedes them in carrying out their work with respect for human rights. This article adds to existing theories on social workers as human rights actors by examining the practices of social professionals working in such a challenging policy context. The research took place among professionals in social district teams in the city of Utrecht, the Netherlands. Following a series of decentralizations and austerity measures the social care landscape in the Netherlands has changed drastically over the last few years. As a result, social workers may find themselves on the one hand trying to realize the best possible care for their clients while on the other hand dealing with new laws and policy expectations focused on self-reliance and diminished access to specialist care. The article explores how social professionals’ responses to barriers in access to care affect human rights requirements. In doing so, this socio-legal study provides insight into the ways in which everyday social work relates to the realization of human rights at the local level.
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Human rights have been facing criticism on many fronts, including the challenges of the “enforcement gap” and the “citizenship gap”, laying bare the shortcomings with regard to the implementation of human rights law as well as regarding its protection of highly vulnerable groups such as refugees. Research on the effectiveness of human rights, the “localisation” of human rights through invocations and practices on the ground, the increased engagement of local authorities with human rights, are all responses to such challenges to some degree. Based on empirical research conducted within municipalities in four countries, this chapter focuses on a missing piece of the puzzle in terms of conceptual and empirical research: the role of “individual agency”. We adopt a socio-legal perspective on human rights and demonstrate that individual agency can make an important contribution to the effective implementation of human rights in the field of migration governance. Behind the black box of the state and local authorities, we find individuals who use human rights—as law, practice and discourse—in local policymaking, in circumstances where invoking human rights is not self-explanatory. Finally, we put forward the notion that reasons such as individual background, motivations, and interactions between individuals influence municipal officials’ engagement with human rights, and we reflect on the conceptual and practical implications that result from this.