Professor Merry’s recent book on globalization and transplantation of rights created by CEDAW describes the final and most critical step in the globalization process which takes place locally.⁵⁰ As she puts it, “[i]n order for human rights ideas to be effective . . . they need to be translated into local terms and situated within local contexts of power and meaning. They need, in other words, to be remade in the vernacular.”⁵¹ Even so basic a human right as freedom from violence against women has not been easy to establish at this level. The transnational human rights movement to end discrimination against women has provided critical resources for local advocates, but no easy answers for creating rights consciousness among perpetrators or their victims. Professor Merry observes that “human rights ideas” are “embedded in cultural assumptions about the nature of the person, the community, and the state” and “do not translate easily from one setting to another.”⁵² Activists must possess a kind of “double consciousness” as they translate human rights concepts between the discourse of the transnational community that “envisions a unified modernity” and the discourses of particularism of national and local settings.⁵³

Observing the translation of ideas about gender violence during discussions between national delegates to the United Nations committee, within transnational NGOs, and by local advocates, Merry identified potential dilemmas that arise from differences in perspectives on rights. First, Merry says, “human rights law is committed to setting universal standards using legal rationality, yet this stance impedes adapting those standards to the particulars of local context.”⁵⁴ Universal standards may seem irrelevant to individuals contending with local conditions that were never contemplated by the drafters. Second, “human rights ideas are more readily adapted if they are packaged in familiar [i.e. local and vernacular] terms,” but quickly lose their transformative power as a result because they fail to “challenge existing assumptions about power and relationships.”⁵⁵ Of particular concern in societies with little familiarity with rights of individuals, victims may not perceive, or “name,” discrimination or even violence directed against them as unjust.⁵⁶ As Merry says, “to promote individual rights-consciousness, institutions have to implement rights effectively. However, if there is little rights consciousness, there will be less pressure on institutions to take rights seriously.”⁵⁷

A third dilemma is that human rights have a profoundly ambiguous relationship to the authority of the state itself, challenging the “states’ authority over their citizens at the same time as it reinforces states’ power.”⁵⁸ The dilemma is familiar to American lawyers, but in the United States, lawyers are protected as“officers of the court” even when mounting serious challenges to the state’s own authority. In societies with little experience with liberal legalism, and more importantly, few institutional protections for those who confront the state in the name of rights, conflict with the state can be dangerous, as the fate of the Muslim human rights lawyer in southern Thailand tragically illustrates.⁵⁹

Rights consciousness, in the sense used here, involves the way one perceives the relationships and actions that concern rights. As Merry notes, rights framed in transnational discourse are typically individualistic and universal.⁶⁰ In Europe and America, particular individual rights are valued primarily because they contribute to the political and economic viability of a capitalist economy by protecting property while motivating and enabling voluntary participation by workers.⁶¹ In societies in which social and economic institutions have developed along different paths, other “individual” rights may seem compelling, for example rights to maintain family or community relationships or to maintain religious practices and other taken-for-granted features of family and community life.⁶²

Gender inequality exists in virtually all societies, but in many so-called “traditional” societies, practices forbidden by the transnational community’s interpretation of CEDAW’s language may be permitted by local custom and even by national or local law. Women themselves may be reluctant to change such practices because they are granted respect or status for submitting to them or because they will be punished for violating them. In Hong Kong, for example, the struggle for gender equality under inheritance laws became entangled with arguments about preserving the traditional family.⁶³ Even violence may be perceived as an acceptable form of “discipline” for transgression of traditional rules of behavior.⁶⁴ Over a lifetime, identity as a woman may be strongly influenced by adherence to customs that maintain a woman’s status as subordinate and an object of violence. In some instances, such practices may not be perceived as unjust, or, even if perceived as unjust, as having a dual character because the woman is both a subject of rights and a subject of the conventions of family relationships. Like persons with disabilities who know about the ADA but may adopt another discourse to describe exclusion, Merry discovered that women in several societies faced difficult choices when their rights-based opposition to discriminatory practices seemed to undermine other important local aspects of family and community life.

For women who wanted to change the way they are treated within existing family and community relationships, a human rights framework

does not displace other frameworks but adds a new dimension to the way individuals think about problems . . . rights are only one way of thinking about their injuries and about justice. Many women in these two places attributed their injuries to their relatives’ failure to abide by the norms of kinship and care.⁶⁵

In other words, the women possessed “a double subjectivity as rights-bearers and as injured kinsmen and survivors . . . two somewhat distinct sets of ideas and meanings that coexist.”⁶⁶ Double subjectivity has profound implications for the global implementation of human rights. Rights permit the victims of discrimination and oppression to step outside the framework of existing relationships, but then they often find themselves perceived and treated as outsiders.⁶⁷

Even where the victims have embraced rights consciousness, the interweaving of rights and local institutions may create other strategic dilemmas. For example, Hindu women facing discrimination under Hindu customary law found that their advocacy for universal rights and opposition to customary law quickly became identified with intolerant Hindu conservatives’ attempts to deny autonomy to the Muslim minority to follow their own customary practices.⁶⁸ Fijian women who opposed customary village mediation practices, which permitted avoidance of serious punishment for crimes such as rape, were confronted with the importance of mediation in preserving village life.⁶⁹

On balance, the willingness of an individual to sustain a rights framework “depends in part on the way institutions respond to their rights claims.”⁷⁰

Footnotes

50. See MERRY, supra note 4. Her research on CEDAW implementation included observation of conditions
in Hawaii, Delhi, Beijing, Fiji, and Hong Kong.
51. Id. at 1.
52. Id. at 3.
53. Id.
54. Id. at 5.
55. Id. Conversely, a problem arises from the fact that “to have local impact, human rights ideas need to be
framed in terms of local values and images, but in order to receive funding, a wider audience, and
international legitimacy, they have to be framed in terms of transnational rights principles.”
56. On the concept of “naming,” see Felstiner, Abel & Sarat, supra note 40. Merry emphasizes this point in
her discussion of CEDAW, and illustrates the psychology of naming in her discussions of gender violence.
See MERRY, supra note 4, at 24–27.
57. MERRY, supra note 4, at 5.
58. Id.
59. See Public Statement, Amnesty International, Thailand: Angkhana Neelapaijit Must be Given Immediate Protection (Nov. 1, 2006), available at http://web.amnesty.org/library/Index/ENGASA390162006?
open&of=ENG-2S3.
60. See generally MERRY, supra note 4.
61. See generally T.H. MARSHALL & TOM BOTTOMORE, CITIZENSHIP AND SOCIAL CLASS (1992). Even
the characterization of some rights as “individual,” such as property and freedom of speech, while others are characterized as “collective,” such as food or shelter, is historically and culturally specific. Food and housing may be no less legitimate individual rights, but they would require far greater restructuring of our basic institutions; institutions already structured to preserve property and guarantee political participation.
62. See supra note 32 and accompanying text.
63. MERRY, supra note 4, at 202–03.
64. Id. at 25.
65. Id. at 180.
66. Id. at 181.
67. See id. at 16; see also Barbara Yngvesson, Re-examining Continuing Relations and the Law, 1985 WIS. L. REV. 623, 630.
68. MERRY, supra note 4, at 105.
69. Id. at 117.
70. Id. at 215.