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«Human rights are now the dominant approach to social justice globally. But how do human rights work? What do they do? Drawing on anthropological ...»

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THE PRACTICE OF HUMAN RIGHTS

Human rights are now the dominant approach to social justice globally. But

how do human rights work? What do they do? Drawing on anthropological

studies of human rights work from around the world, this book examines

human rights in practice. It shows how groups and organizations mobilize

human rights language in a variety of local settings, often differently from

those imagined by human rights law itself. The case studies reveal the contra- dictions and ambiguities of human rights approaches to various forms of violence. They show that this openness is not a failure of universal human rights as a coherent legal or ethical framework but an essential element in the development of living and organic ideas of human rights in context. Studying human rights in practice means examining the channels of communication and institutional structures that mediate between global ideas and local situations.

is Assistant Professor of Conflict Analysis and Anthropology

MARK GOODALE

at George Mason University.

is Professor of Anthropology and Law and Society at

SALLY ENGLE MERRY

New York University.

THE PRACTICE OF HUMAN RIGHTS

Tracking Law Between the Global and the Local

Editors:

Mark Goodale and Sally Engle Merry

CAMBRIDGE UNIVERSITY PRESS

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521865173 © Cambridge University Press 2007 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press.

First published in print format 2007 eBook (EBL) ISBN-13 978-0-511-33411-5 ISBN-10 0-511-33411-7 eBook (EBL) hardback ISBN-13 978-0-521-86517-3 hardback ISBN-10 0-521-86517-4 paperback ISBN-13 978-0-521-68378-4 paperback ISBN-10 0-521-68378-5 Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Contents Contributors page vii Acknowledgments xi Introduction Locating rights, envisioning law between the global and the local 1 Mark Goodale 39

PART ONE STATES OF VIOLENCE

Int

–  –  –

7 Transnational legal conflict between peasants and corporations in Burma: human rights and discursive ambivalence under the US Alien Tort Claims Act 285 John G. Dale

–  –  –

vi Contributors John G. Dale is Assistant Professor of Sociology at George Mason University where he teaches in the Department of Sociology and Anthropology and Conflict Analysis and Resolution Program.

In 2005 he was a National Endowment for the Humanities visiting scholar at Columbia University. He is the author of the forthcoming Transnational Legal Action: Global Business, Human Rights, and the Free Burma Movement.

Daniel M. Goldstein is Assistant Professor of Anthropology at Rutgers University. His research focuses on violence, human rights, and popular politics in urban Bolivia, where he is currently studying the competing discourses and practices of security, rights, and democracy with the financial support of the National Science Foundation. With funding from the MacArthur Foundation, he researched and wrote The Spectacular City: Violence and Performance in Urban Bolivia (Duke University Press, 2004).

Mark Goodale is Assistant Professor of Conflict Analysis and Anthropology at George Mason University. He is the author

of two forthcoming books – The Anthropology of Human Rights:

Critical Explorations in Ethical Theory and Social Practice, and Dilemmas of Modernity: Bolivian Encounters with Law and Liberalism, and coeditor of Practicing Ethnography in Law: New Dialogues, Enduring Methods. He was the guest editor of the 2006 special issue of the journal American Anthropologist entitled ‘‘Anthropology and Human Rights in a New Key.’’

viiLIST OF CONTRIBUTORS

Jean E. Jackson is Professor of Anthropology at the Massachusetts

Institute of Technology. She is the author of The Fish People:

Linguistic Exogamy and Tukanoan Identity in Northwest Amazonia and coeditor of Indigenous Movements, Self-Representation and the State in Latin America. Besides her research and writing on different aspects of Latin American politics, law, and culture, she has also conducted research in medical anthropology, work that led to her book ‘‘Camp Pain’’: Conversations with Chronic Pain Patients.

Lauren Leve is Assistant Professor of Religious Studies at the University of North Carolina-Chapel Hill. An anthropologist by training, her research focuses on the intersections between religion, gender, development, law, postcolonial subjectivity and the cultural dynamics of neoliberal globalization, including the current ‘‘ethical turn.’’ She is currently completing a book on Theravada Buddhism in Nepal entitled ‘‘Seeing Things as They Are’’: Ethical Practice, Religious Reform and the Buddhist Art of Living in Transnational Nepal.





Sally Engle Merry is Professor of Anthropology and Law and Society at New York University. The author of over one hundred articles and reviews on law, anthropology, race and class, conflict resolution, and gender violence, she is past-president of the Law and Society Association and the Association for Political and Legal Anthropology. Her most recent book is Human Rights and Gender Violence: Translating International Law Into Local Justice (University of Chicago Press, 2006).

Laura Nader is Professor of Anthropology at the University of California at Berkeley. A member of the American Academy of Arts and Sciences and a recipient of the Kalven Prize from the Law and Society Association for distinguished research on law and society, Professor Nader is the author, most recently, of The Life of the Law: Anthropological Projects, and coauthor of the forthcoming Plunder: The Dark Side of the Rule of Law.

viii LIST OF CONTRIBUTORS

Balakrishnan Rajagopal is the Ford International Associate Professor of Law and Development and Director of the Program on Human Rights and Justice at the Massachusetts Institute of Technology. He served for many years with the United Nations High Commissioner for Human Rights in Cambodia, and has consulted with UN agencies, international organizations and leading nongovernmental organizations (NGOs) on human rights and international legal issues. He is the author of International Law from Below: Development, Social Movements and Third World Resistance (Cambridge: Cambridge University Press, 2003).

Shannon Speed is Assistant Professor of Anthropology at the University of Texas at Austin. Her research interests include human rights, indigenous rights, globalization, gender, social justice and resistance movements, and activist research methods.

She is the author of the forthcoming Global Discourse on the Local Terrain: Human Rights and Indian Resistance and coeditor of Dissident Women: Gender and Cultural Politics in Chiapas.

Kay Warren served on the senior faculties of Princeton University and Harvard University before coming to Brown University, where she is currently the Charles B. Tillinghast Jr. ’62 Professor in International Studies and Professor of Anthropology. At Brown she also directs the Politics, Culture, and Identity Program at the Watson Institute for International Studies. Her new work involves a multisited examination of major foreign aid donors and their production of knowledge about the developing world. She is

currently working on two books: Remaking Transnationalism:

Japan, Foreign Aid, and the Search for Global Solutions, coedited

with David Leheny, and Human Trafficking and Transnationalism:

Global Solutions, Local Realities.

Sari Wastell is Lecturer in Anthropology at Goldsmiths College, University of London. She has done research in Swaziland since 1997 on the legal, political, and social dimensions of divine kingship. She is the author of Kingship and Custom: Law, Knowledge, and Sovereignty in an African Polity, and one of the editors of Thinking Through Things.

ixLIST OF CONTRIBUTORS

Richard A. Wilson is the Gladstein Distinguished Chair of Human Rights and Professor of Anthropology and Director of the Human Rights Institute at the University of Connecticut. He is the author of Maya Resurgence in Guatemala (1995) and The Politics of Truth and Reconciliation in South Africa (2001). He has edited or coedited five books, including Human Rights, Culture and Context (1997), Culture and Rights (2001), Human Rights in Global Perspective (2003) and, most recently, Human Rights in the ‘‘War on Terror’’ (2005).

xAcknowledgments

This book is in many ways a collaborative project. It began as a panel at the 2005 American Anthropological Association (AAA) meetings and continued through a second conference and ongoing conversations among the authors and editors. We have all learned from each other as we have worked to define and develop a critical study of human rights practices. In this process, we benefited from the insights of two scholars whose work did not, for various reasons, ultimately appear in the volume. David Nugent gave a paper and Ulf Hannerz a commentary at the AAA meetings. The second phase of the project was a wonderful conference and retreat that offered an opportunity for extended discussion and commentary on most of the papers included in the final volume. Again, Ulf Hannerz was an important contributor at this second meeting.

We would like to thank the Margaret MacVicar Faculty Fellows Program at the Massachusetts Institute of Technology, whose appointment of Jean Jackson as a Fellow provided the funding for the book’s contributors to meet for three very congenial days in Chatham, Cape Cod in June 2005. We were able to discuss ideas, refine the book’s internal structure and goals, and enjoy some beautiful weather and good cheer. We are very grateful to Jean Jackson for proposing this second meeting and for her generous support of the project.

We are appreciative of all we have learned from both anthropologists and other scholars, and activists in the field of human rights. Sally is grateful for a year as a Fellow at the Carr Center for Human Rights Policy at the Kennedy School at Harvard and for her ongoing contact

xiACKNOWLEDGMENTS

with the Center for Human Rights and Global Justice at New York University School of Law. Her research on human rights has been generously supported by two grants from the Law and Social Sciences Program of the National Science Foundation. Mark would like to acknowledge the support of the National Science Foundation, the Organization of American States, and different internal grant programs at George Mason University, which have supported his research in Bolivia. Funding for his broader research and theorizing on human rights has been made possible by a Fulbright scholarship and the Irmgard Coninx Foundation.

For Sally, working with Mark Goodale has been intellectually rewarding and stimulating. He has been a terrific coeditor, helping her to think through new problems and keeping on top of deadlines.

Sally appreciates the perspective he brings to the field of human rights, both philosophical and anthropological, and his leadership in promoting an anthropological approach to the practice of human rights. Mark would like to thank Sally for her deep wisdom and patience as this book project took shape and evolved through its different stages. As always, Sally was as much a guide and source of inspiration as she was a collaborator.

Finally, Mark wishes to acknowledge the sustaining presence of his family – Romana, Dara, and Isaiah. Sally is grateful for the continuing support of her husband Paul and daughter Sarah.

xii

INTRODUC TION

LOCATING RIGHTS, ENVISIONING LAW

BETWEEN THE GLOBAL AND THE LOCAL

Mark Goodale 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. As Sally Engle

1INTRODUCTION: LOCATING RIGHTS, ENVISIONING LAW



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