- Okay, I think we should begin.
I know it's early on a Friday morning,
but there's never a good moment.
And we are pressed for time.
So I'm Philip Alston, I'm part, along
with Sally, I'm very proud and happy
to say of the Center for Human Rights
and Global Justice here
at the NYU Law School.
We're here to celebrate
and honor Sally Merry
for all of the work that she's done.
We're not going to have
any long formal speeches.
I think one could use a lot of metrics
by which to evaluate Sally's career.
But I've been warned against
relying on such approaches.
Nonetheless, I can't help
but saying that the number of books,
the number of articles,
the number of major
lectures that she's given, courses,
and so on, and her impact
really are enormous.
But she's right that we should stay
away from quantitative measures.
And that's where qualitative
measures come in.
And they're both on the
professional and the personal.
And I'm afraid I insist
that the two be put
together, particularly, in this case.
It's funny with great
men we go out of our way
to say well we have
to separate the personal
from the professional.
He was a dot, dot, dot,
but he was a wonderful
scholar or whatever.
Sally is absolutely a marvelous
person at every level.
And she is the nicest colleague
that I could've worked with.
She is one of the most selfless people.
If there's any task to be done,
she will volunteer for it.
She really has been a
magnificent colleague.
Just a few mechanics, we are going
to produce a volume of essays
in her honor coming out of this.
The deadline for revised chapters will be
the end of March.
We have enough contributors
and enough flexibility that we're gonna
actually insist on that deadline.
And those chapters that are not
in will unfortunately not
be able to be included.
The presentation, today I'm
sorry for the packed agenda.
Each and every speaker was chosen
by Professor Happy, I
mean, Professor Merry.
And so that lead to a rather
significant number of speakers,
and we've had to squeeze the program.
Apologies.
We'll do 15 minutes strictly.
And I'm going to have to
behave like a sheepdog
in order to keep it to the
15 minutes for each person.
We don't have chairs for the sessions.
We are just gonna rely on people to go.
We're not gonna do introductions.
The program is more
than especially detail.
Because time is tight, feel free
to get up and get a
coffee anytime you'd like.
There is a coffee break,
but just go and get one.
A final word really is
just to say thank you.
First of all of course
to Sally who has made
all of this possible.
But we'll be saying that all day long.
I hope.
To Penelope Fernandez from
the dean's office here.
Penelope really is the one
who has made this possible.
To the anthropology department
which has contributed significantly
to the costs, and we're very grateful.
And to Lauren Stackpoole
with whom you will have been
in contact who has done all
of the real organizing work.
And I'm deeply grateful to
all of those colleagues.
So I will ask Sally just to
say a few words of welcome.
And then we'll get
underway with the panel.
Sally.
Slowly, carefully.
(audience and panelists applaud)
- Well I'm so honored to have you all here
and delighted to see so many people here
at the New York crack of dawn
and delighted to have the panel.
They're so many people,
because I produced my wish
list of the people I'd like
to see come, and I figured probably
most of them wouldn't be able to make it.
And I'm just so delighted that so
many of them have been able to come
and so grateful to the NYU Law School,
the anthropology department
for making this happen,
and particularly to the Center
for Human Rights and Global Justice
which I've been really pleased
to be a part of for the last several years
and Philip Alston for
coming up with this idea
and organizing it and making it happen.
So I think it's really
gonna be an exciting day.
And I'm very pleased and honored.
And thank you all for coming
and all of the wonderful speakers
for traveling many of you
long distances to be here.
So thanks a lot.
(audience and panelists applaud)
- Hello everybody.
Since I have only 15 minutes,
and I'm gonna try and stick
to it, I'm not gonna say
too many thank you, but
thank you for having me.
I changed the title of my
presentation yesterday.
So the new title is "Vernacularization
as Epistemic Capture"
at the Universal Periodic Review.
And because I am the first speaker
and Jane is going to talk
about the Universal Periodic
Review as well I thought
I should perhaps explain
a little bit this mechanism quickly.
As most of you may know,
in 2005 the United Nation
began a process of reforming
its human rights system.
And the reform was a response
to critique according
to which the Human Rights
Commission had become politicized
and it extended to name
and shame certain states
while leaving others unscrutinized.
And the UPR, the Universal
Periodic Review is
its mechanism of human
rights administering that was established
in response to this critiques.
So what is it?
The Universal Periodic Review
is a state led peer scrutiny
by the community of states of the human
rights record of each of the
193 UN member states carried
out on a regular cycle of
now four year and half year.
It's a full cycle process
which comprises four stages
which I sketched out here very quickly.
So the first stage is
the preparation of
information for the review.
The second stage is the
review of the human rights
situation of the state under review,
which is also called
the interactive dialogue
for the working group meeting.
It's the three hours
and half review during
which the state under review presents
its national record and
recommending states ask
question and make
recommendation that the state
under review is free to
accept or to simply note.
The third stage is the
adoption of the report
24 hours after the review.
And the last stage is
the implementation of accepted
recommendation between two reviews.
So the review is based
on three key documents.
One document is a national report
which is prepared of course
by the state under review.
The second document is called
the Compilation of UN Documents.
It's produced by the OHCHR.
It's really a compilation
of information coming
from the treaty bodies,
especial procedures,
and other UN entities.
And the last document is called
the Summary of other
Stakeholders information.
And it's a summary that is also produced
by the Office of the High
Commissioner for Human Rights
and which is a summary of
contributions sent by NGOs.
So this presentation today is focusing
on this last document
and on the NGO submission
on which it is based.
It pays specific attention
to the social life of the submissions.
Are they circulate between NGO offices
in various parts of the world
and the OHCHR in Geneva.
I highlight the translation
work that we dealt
by UN drafters in charge of selecting
and summarizing written contribution.
And I consider these
actors as intermediaries
between the international
community of states
and NGOs doing a difficult
work of translating
up the human rights claims
coming from the field.
I underline the contradictory
effects of knowledge
practices, forms of expertise,
and bureaucratic procedures
on the articulation and
understanding of social criticism.
I want to examine the forms
of discipline generated
by the bureaucratic
modalities of civil society participation.
And I want to pay specific attention
to the phenomenon of
epistemic capture that occurs
when what OHCHR drafters
take ownership of contentious
information provided by NGOs.
While such process gives
this information legitimacy
and value within the official
discourse, they also distort
ideas in a way that reduces
the critical content
and make them compliant
with the dominant paradigm.
So the analysis that I
present here is really based
on field work I carried out with Jane
at the UN between, in 2010, 2011.
And it's also based on participant
observation that I was able to carry out
at the Office of the High
Commissioner for Human Rights.
For three months between April
and June 2011, via an internship actually.
And it's also based
on most recent interviews
that I was able to carry out
in the context of an ethnographic
consultancy that was
commissioned by the OHCHR itself.
So these public reviews which take place
in this magnificent room
20 of Palais des Nations
Geneva represent somehow
the front stage of the UPR.
But what we wanted to kind of explore
with Jane was also the
backstage of the UPR,
because it is really where NGOs
participation has been relegated
to the backstage, really.
Since they cannot really speak
up during public reviews,
they have devised
very strategies in order to get heard.
So they are able to lobby states.
For instance in the sepentime
barrier they are able
to organize side events in
parallel to each reviews.
They are able to send submission
to the Office of the High
Commissioner for Human Rights.
And here it's a team of
intern of which I was part.
And they are able to also participate
in consultations carried out by state
in the process of drafting
their national reports.
But since their capacity to speak
in public is restricted, NGOs'
concerns are primarily raised
and voiced by others.
(mumbles) other states and the OHCHR,
the other summary others take
all those recommendations,
other stakeholders' contributions, sorry.
So because NGOs' voices
are constantly mediated,
they're all within the
UPR gonna be equated
to the one of a ventriloquist.
The relevance within the mechanism relies
on the capacity to find
a friendly mouth, able
and willing to speak their words.
So the secretariat or the drafters
within the secretariat are really playing
this role of intermediaries, trying
to translate up the right
claims of these NGOs.
And it's really a matter
that is often overlooked
in studies of the UPR when
I believe that it's rather
low profile enables drafters
to significantly shape the
content of the distinct
questions taking place during the reviews,
notably by acting as this intermediary.
But the tension between the
moral duty of protecting
the voices from the
field and the necessity
to preserve the credibility of
the institution implies that
drafters have to engage in
myriad bureaucratic procedures
whose repetitive performance
serve to maintain
the principles of neutrality,
objectivity, and transparency.
So I've argued elsewhere that in actually
in Larry's and Emila's Larkin's book
in a chapter I wrote
for that book that in spite
of the tedious administrative
procedures the production
of document entails
their drafting involves intense discussion
which are not deprived of affects
and (cough in audience
drowns out lecturer)
passions at times.
This observation contrast
with the tenor of the interactive dialogue
which despites promising name
does not provide any room
for genuine interaction or debate.
Such negotiation I realized
during my internship take
place offstage in the offices of the OHCHR
where drafters engage in vigorous debates
over the content of a paragraph
and take strategy decisions
on which issues to prioritize.
Since the first cycle of the UPR,
the methodology used for drafting
documents has changed quite dramatically.
At the time of my first fieldwork
in 2012, the drafting process followed
an inter-divisional
methodology that mobilized
in fact the knowledge
and expertise of civil servants working
in the full division of the OHCHR.
And in each of these divisions
there were drafters called
UPR focal points where the
supervision of one coordinator
and were in charge of gathering
the information that was required
for the division inputs
to the compilation.
And these teams of co-focal point worked
in close collaboration
with a team of drafters
coordinators located within the Human
Rights Council branch here responsible
for collecting all the draft
and finalizing the documents.
This inter-divisional method had been put
in place in order to avoid the
personalization of documents
and prevent the association of a document
with one single author.
This strategy I was told
protected anonymity, guaranteed
objectivity, and enhance the bureaucratic
legitimacy of the material produced.
But because of their direct access
to geographic desk officers were
in regular contact with OHCHR staff
in the field, efforticity
drafters here, Field Operation
and Technical Cooperation Division.
We are responsible for the first
draft of the summary of other
stakeholders' information.
However the content of this document was
collectively assessed
during weekly team meeting
and ultimately during the
meeting of the Country
Consultative Group, the
CCG meeting which was
an important meeting during
which took place 10
weeks before the review
and which gathered together
the different drafters
from the different divisions
who had been involved
in the production of each
document in each report.
The presence of the geographic
desk officers was important
to validate the accuracy
of the information provided
in the documents.
So the objective of this meeting were
to highlight contentious
issues for the selected reader
to decide upon, maintain the balance
in the types of issues
presented, ensure complementary
and consistency between the summary
and the compilation, select
the information that should be given
in priority in document.
And it was really a
strategic moment during
which drafters decided on which issues
and phases had to be put.
But since the beginning of the UPR,
the drafting methodology has been
the object of heated
internal debates, especially
between the managers who shared
the view that it mobilized
too many internal resources,
and it was not cost effective as a result,
and the drafters who on
the contrary defended
the idea that the methodology guaranteed
the quality of the information produced
and strengthened the links
between the different UN,
human rights mechanisms.
But in spite of all their
efforts, drafters did not succeed
to convince their hierarchy.
And the production of
document is now following
a different methodology
whereby each drafter is now
in charge of the entire
production of documents
for two reviews for UPR session.
The CCG meetings, the country
consultative groups meetings
no longer take place.
And all the focal points
have been removed.
Instead, each drafter is responsible
for obtaining information
from the other divisions.
The advantage of this
new methodology according
to a drafter I interviewed
recently is that it enables
drafters to develop in-depths,
expert knowledge of the
human right situation
in specific countries.
However, the centralization
of the drafting process has
also meant that the
OHCHR divisions have lost
ownership of document production
and that individual drafters
are personally accountable for
the integrity of the information
presented in each report.
Furthermore, the CCG meeting
where important strategic
moments when drafters
collectively endorsed
the content of documents and took decision
on which issues to prioritize.
And in this sense, these meetings
at the ritual power of producing
a community of
international civil servants
and expert bound together
by principles of impartiality
and transparency.
So the individualization of documents
production mean that the UPR
secretariat is now deprived
from the technical means
to make community an
element of its everyday work
at gave meaning to drafters.
Otherwise, I lead ideas and
burdensome bureaucratic task.
So from keepers of the truce
in the Foucaldian sense,
in the sense of knowledge
authorities bound
to the ruler through
a parasastic contract,
drafters have been turned
into diligent bureaucrats able
to produce document on time
and according to specific
administrative rules and standards.
The social dimension
of their work has been
partially eliminated
in favor of efficiency
and productivity criteria.
But it also serve, this has
meant also a loss of personal
relationships between the NGOs
that send their contributions
and the drafters who sometimes call them
to ask whether they could
remove that paragraph
or remove the neighbor, but that person,
so the (mumbles) their reports
on board while compiling these document.
Another reason most impossibility
to bend the rules as
you choose to be the case.
So I want to conclude, yes.
I want to conclude now.
So NGOs generally consider
their reports successful
when their recommendation
are picked up by states
and when those are accepted
by the state under review.
In the same way as the
impact of scholarship is
increasingly assessed according
to quantitative criteria,
this to say the number
of times a text is cited
in other academic publication.
The success of NGOs report equally relies
on it being reference in other,
more powerful UPR documents.
This to say in a summary of stakeholders.
In states' recommendations
to the state under review,
in the working group report where
all recommendation are received
by the state under review are recorded.
Citation is therefore the benchmark
upon which NGOs' influence is assessed.
NGOs' capacity to hold the state
into account primarily
depends on the aptitude
to convince international civil servants
and diplomats that they
represent a credible
source of information that can
be legitimately referenced.
In order to be perceived
as such, NGOs have
to adopt the language of the powerful.
They need to embrace the
bureaucratic logic of the UPR,
its mode of address, its
diplomatic etiquette,
and its specialized jargon.
It also implies voicing social critique
in such a way that it can be taken up
by (mumbles) will occupy central stage
within the UPR process,
that is to say the states.
In the process of participating
in the UPR, NGOs gradually learn
to tailor their performance according
to the expectation of their audience.
Their command of
administrative procedures is
therefore essential to
guarantee their relevance
in a system whose primary task is
to produce paperwork and make
it circulate in the world.
The power of the UPR lies in its capacity
to un-match actors in its own logic.
NGOs represent that to engaging
with the UPR find themself caught
in a double bind between their aspiration
as believers in the human rights projects
and their duty to reach
measurable goals as experts.
The legal technology is mobilized
by the UPR drafters in order
to create document that
represent collective
patterns of intention while enlarging
the field of participation also trigger
a neuterative process that is structured
by the field itself in
which ultimately tends
to de-radicalize social critique.
In spite of these structural constraints
and the frustration they produce,
NGOs increasingly engage with the UPR
in the hope to have their claims voiced
by others and later on
translated into concrete action.
But this increased
participation presents limits
as the number of OHCHR
drafters did not increase proportionally.
Meaning that modalities
that could be negotiated
during the first cycle
are no longer negotiable
as drafters are pressurize
to produce quality reports
and submit them according
to the deadlines.
Thank you.
(audience applauds)
- (faintly speaking) to turn this on.
Is it already on?
Okay, great.
I'm just going to start in.
It's an immense privilege
and pleasure to participate today
in this conference honoring
Sally Merry's work.
I got to know Sally in the period 1997
to 2000 when we worked
together on the culture
and rights volume that I edited
with Richard Wilson and
Marie-Benedict Dembour.
This was the start of 20 years of sporadic
but rich conversations on
culture and human rights.
In the '90s we saw each other regularly
at conferences and workshops,
but our paths crossed more regularly
from 2010 onwards, because
in that year, funded
by the British Academy via
an application that Sally
had supported as a referee
I began conducting ethnographic research
with Julie in Geneva at
the recently launched UPR.
This gave Sally and me a
whole new area to talk about.
Sally's groundbreaking fieldwork at the UN
on the CEDAW Committee described
in "Human Rights and
Gender Violence" had helped
me conceptualize the UPR
project in so many ways.
But once I began to
carry out the research,
the desire to compare notes
became incredibly strong.
We both relished, I
think, sitting together
at conferences and workshops
and especially during
Sally's occasional visits
to Geneva where I was living at the time
and exploring the
similarities and differences
between the UPR and the
treaty body processes.
I remember also on one
occasion when Sally was
in the early stages of her research
on indicators and on a
brief visit to Geneva trying
to track down a busy and
over committed statistician
to interview, commiserating
over the particular
methodological and emotional difficulties
or should I say the
special challenges of doing
anthropological research
in a space as transient
and fragmented as the UN.
As I reflect on and continue to write
up the research that Julie and I conducted
on the UPR, I often return to Sally's text
for ideas to help me think
through the specificities of this
particular human rights process.
Sally's forensic
delineation of the different
ways that culture is understood
at the United Nations remains spot on.
Interestingly, I find myself
increasingly grappling not
with culture in its most
commonly invoked sense
as harmful traditional
practices, as an obstacle
to change, but with the culture that UN
actors continue not to be able to see
and that they rarely talk
about, the assumptions, values,
and ways of doing things that
are hegemonic and unspoken
and that many but not all of them share.
Important elements of this
UN culture are particular
ways of using words and numbers,
ways that may once have felt strange
but have now for UN insiders
become routine and naturalized.
Sally's work has been as
attentive towards numbers
in human rights' processes as it has been
to issues of culture.
And I will be elaborating these
in my chapter for this fettschrift.
But today let me focus on the
issue of words, exploring it
through a single ethnographic example.
So in this brief presentation I want
to note a few things
about the ways that NGOs organize
their verbal interventions
within the UPR pre-session,
a new space of dialogue
that was introduced
in 2012 by an NGO and has now become
a standard element of the UPR proceedings.
Rather than expressions
of vernacularization,
one observes in the pre-session a strict
and serious invitation of
the codes used by states
in the state-run UPR working group.
Though also a reversal of roles,
here NGOs speak and states listen.
What are the conventions of speaking here?
In what linguistic forms
must NGO claims be squeezed
in order to be herd?
Now thankfully, Julie
has already described
to you the UPR, so I don't
really need to do it,
but let me just emphasize
a few distinctive features.
The review is universal.
It has no experts, rather
states are in the driving seat.
And it has a non-confrontational ethos.
The states as a working
group of peers are tasked
to offer constructive criticism
in the form of recommendations
to the state under review.
So states rather than experts are asked
to bear responsibility
to encourage human rights improvement.
The UPR's innovation which we can think
about through the frames
of governmentality
and audit culture is to
enlist states not only
in self-monitoring but now also
in monitoring other states.
This emergent form of human
rights governance has required
states to adopt new forms of speaking.
No longer is it left to just a few states
to thump the podium in
condemnation of egregious violators
or to sing praises of occasional heroes as
one still witnesses in Human
Rights Council meetings.
Rather in the UPR all states are invited
to speak like a human
rights respecting state
in ways that manifest the UPR
principles of transparency,
non-confrontation,
constructiveness, and
sharing of best practice.
While a growing number of
states have been learning
to speak in these ways,
the shift has not been
easy or straightforward.
UPR modalities and practices both enable
and disable, facilitate and
constrain what states say
in relation to human
rights within this space.
And this is also true for NGOs.
And as Julie has described,
as in the treaty body system,
NGOs cannot speak during this public audit
ritual of the 3 1/2 hour
review of the working group.
But they are allowed to
submit written reports,
stakeholders' submissions,
and these are drawn
on by the secretary to create
the summary of stakeholders' submissions.
So the only moment when
NGOs can publicly speak
within the formal procedure is
at the very end of the 4 1/2 year cycle
at the human rights plenary which follows
the working group and
where the state report
is formally adopted.
That one hour session is divided equally
between the state under review,
the recommending states,
and the NGOs who get that
20 minutes, usually split
in two minute segments for them
to make a kind of comment.
NGOs view this invited presence during
the adoption of the report as ritualistic,
a moment far too late
to influence anything
in the collective report
of the state review.
So they have become very creative
in identifying and making opportunities
to bring their own concerns
to the table much earlier in the process.
And again, Julie has
mentioned some of these.
For example, side events
through lobbying, particularly
through cultivating these
individual relationships
with individual diplomats and delegations,
those that they have identified
as being specifically
sympathetic to the issues
that they are promoting.
The UPR pre-session was
initiated in spring 2012 right
at the beginning of the UPR second cycle.
It was put together by upr-info.org,
the key monitoring the monitors
NGO for this mechanism.
This Geneva based NGO
which over time has become
increasingly international
organization like continues
to organize these now regular sessions.
The session is held three
to seven weeks before the UPR session.
And individuals representing
diplomatic delegations,
often these are interns,
sometimes ambassadors, depending
on the diplomatic capacity
and the importance of the review, attend
each countries one hour slot.
At the pre-sessions I attended in 2013
and 2014 which were then held
in a large rented meeting
room of an international
conference center about a half mile
from the Palais des Nations.
Between 20 and 37 diplomatic
delegations attended
which is only about 10 to
20% of the full number.
The percentages are higher
now that the pre-sessions have been moved
into the Palais des Nations.
In 2013, UPR Info's Director,
the French political
scientist, Roland Chauville,
would open each country slot
by reminding those
assembled of the relevant
fact that for example
the Gambia was reviewed in February 2012.
It received 153 recommendations,
of which 68 were accepted
and 85 were noted.
He would then introduce the first panel
member, keep time, chair the session.
In important ways the
pre-sessions mimicked
the state reviews, except,
as I said that NGOs speak
and states listen, including
the perspective state under review.
So in one of the pre-sessions I attended
in October 2014, NGOs
from the Gambia, Angola,
and Italy, as well as several
Geneva based international
NGOs shared, each country
separately, a 50 minute slot
on the podium to present their issues.
The last few minutes of the
slot are devoted to discussion.
Although, in the sessions that I observed,
it was rare for more
than one or two states
to ask a question.
But the coffee break in
between was a very crucial time
for country NGOs to network and lobby.
How then do NGOs speak?
First it's important to acknowledge
the diversity of speakers
and the vast variation
in their capacities and cultural capital.
The Angolan in Geneva for
the first time who spoke
on behalf of domestic violence
and housing rights NGO struggled
with English and appeared
generally un-confident.
By contrast, the British staffer
for the Geneva based International Service
for Human Rights whose
presentation focused
on the Gambian government's
inadequate fulfillment of
its accepted recommendations
as well as the issue of human rights
defenders was articulate and
to the point, although she
had never been to Angola.
Well these variations were
noticeable, reflecting
the speakers' different positionalities
within the linguistic and cultural
hierarchies of the UN's everyday practices
and their vastly differing
levels of experience
within the UN system.
The two speakers shared a common
language of description and analysis.
When talking about situations
in the country they rarely talked
about cultural or social specificities.
Rather, they discussed issues using
categories of international
human rights, development,
and security discourses,
violence, discrimination,
inadequate housing, vulnerable minorities,
as well as the ubiquitous
acronyms, VAW, GBV, MDGs.
They referred to conventions
and agreements that
the state had accepted,
as well as voluntary commitments
to ongoing campaigns, the UN Foundations
Every Women, Every
Child health initiative.
Sometimes they cited a recommendation made
by another UN body, especially
the Human Rights Committee.
NGOs regularly talked about
distressing situations,
yet rarely showed anger.
Even when clearly frustrated
or cynical, they worked hard
to adopt a constructive tone.
They employed a vocabulary of removing
obstacles, seeking buy-in,
progress made, remaining challenges.
And if wishing to persuade governments
to see them as partners
rather than adversaries.
Every presentation included
a set of recommendations,
not please note demands.
NGOs formulated these in hopes that one
or more of the diplomatic
delegations present
would take up a recommendation
that they had formulated
and included in its own
two minute statement
in the upcoming interactive dialogue.
For less experienced NGOs,
including those who flew
in for the first time
to Geneva, who didn't know how things work
in Geneva, recommendations could be long
and unwieldy, involving two
or three clauses that actually
recommended several things.
More experienced NGOs or
those who had been coached
often articulated
recommendations that were very,
very concrete, that contained
a single request, making
them monitorable, and thus
directly usable by states.
This could be a literally
cut-and-paste exercise.
Many NGOs distributed
one to two page handouts
with three to six recommendations.
And sometimes these were
indeed ultimately uttered word
for word as a recommendation contained
within a state delegation
statement on the day.
In such cases, we might ask
with Mikhail Bakhtin who is speaking.
When this happened NGOs claimed ownership
and authorship and used the success story
in their subsequent advocacy.
As this brief exploration
suggests, NGO claims making
at the UPR pre-sessions make manifest
the simultaneously
enabling and constraining
character of the UPR
and the UN human rights system generally.
When presenting local
concerns, NGOs must express
them in the normative linguistic
and conceptual categories of UN language
in the appropriate emotional registers
and conforming to the
precisely designated technical
parameters of speaking
time and space on the page.
NGOs become increasingly skilled over time
in using these terms,
formulations, and phrases.
So that those operating
within the human rights
system can hear them.
I am so lucky to have
Sally's inspiring work
on culture and rights, vernacularization,
mediators, indicators, and
the social practices of UN
meetings and committees as I continue
to make sense of words, numbers,
and culture at the
Universal Periodic Review.
But I am even more lucky
to have been welcomed
by her into a friendship
and into the community
that she has nurtured
where she's given us all
the chance to take pleasure
in her deep excitement about
ideas, her intellectual
and personal generosity,
and her enormous warmth,
compassion, and delightful
down to earthness.
(audience and panelists applaud)
- Okay, well I'll just start.
15 minutes as I see go by very quickly.
And it's always a somewhat daunting task
to follow two colleagues
who've presented such coherent papers.
So I'll do my best.
So first of all thanks to Philip
for organizing this event,
for inviting me to be part of it.
It's a tremendous honor to
be here in this capacity
among so many distinguished
mentors, colleagues,
and indeed old friends.
And I think leaving aside
all the intellectual
and professional contributions which is
as you can hear will
occupy most of our time,
I think it's also important
to underscore what this event says
about the warmth and esteem
with which colleagues
hold Sally, the eagerness
to come together in this
way from near and far.
And I know this is not the first
and it's not the last of such events,
and just on that note I would
mention that if any of you
here are anthropologists and will be
in Vancouver in two
weeks, Cromartie, Clark,
and I are organizing yet another event
in honor of Sally as this years
winner of the Franz Boas
Award for Exemplary Service
to Anthropology which is the highest
and most distinguished award offered
by the American
Anthropological Association.
And the first winner of which
in 1976 was Margaret Mead.
So let me start with an anecdote.
And I took Philip's offer
to not write a paper quite
seriously, as you'll see.
So what I'm gonna talk about
is the promise of the chapter
which will be submitted
by the end of March 2020.
And I wanna start with an anecdote.
A few years ago there was
a conference organized
at the University of Michigan Law School
at which Philip Alston was also there.
And this was a gathering
of the sort of great
and good of political
philosophers of human rights
and with some legal scholars mixed in
and little old me as
the one anthropologist.
And it was an interesting encounter,
an ethnographic encounter
for my part as well.
But one of the things which I tried
to do at this event was
to resist the insistence
that I limit my contributions
to the colorful ethnographic
anecdotes that the political
philosophers wanted me to provide
so that they could then go on
to do the real thinking
about human rights.
And it was precisely on the
basis of one of Sally Merry's
concepts, vernacularization
which I'll talk
about that I made these perhaps often
or at least on occasion
unwanted contributions.
And so I'm very happy to have a chance
to come and finally develop
this idea that I'm going
to present, because I
was never contacted again
by the organizers of the conference.
And so this event will give me a chance
to make this argument in greater detail.
So what I wanna do is summarize
the argument that I'm
gonna make in the chapter
and then sketch out how I'm
gonna develop it for the volume.
So first, just a bit of a refresher
on the concept of vernacularization
which is just one among
many of the concepts
that Sally is known for
in her distinguished academic career.
And this concept is
developed in several places
but two notable would be the 2006
American Anthropologist
article "Mapping the Middle,"
which was a collection that sought
to reframe the anthropology
of human rights
and of course her book "Human
Rights and Gender Violence."
And so, what this idea of
vernacularization does is
it's based on research
that Sally conducted
between 1999 and 2004,
I would say maybe 2003, but into 2004,
on the global efforts to reframe violence
against women as a human rights violation.
Now vernacularization is the empirical
and theoretical category
that Sally develops
to explore the fraught
process of negotiation
through which human rights
ideas are put into practice.
And what she explores
with this concept of
vernacularization is a tension,
a key tension between local legitimacy
or local cultural resonance
in this process of translation
and what we might think of
as normative authenticity.
And what she describes as
this fine balancing act
which can't be, in a sense,
theorized in a normative sense.
It's some that has
to be understood
ethnographically in context.
And I would say that for
those of you who've worked
with vernacularization, it's
just something that happens
with concepts that themselves
travel is that this
particular aspect of
vernacularization I think
often gets left out of the citations
and the use of vernacularization
which comes to be taken as just
the process of translation.
But in fact if you go back and look
at these sources as I did to prepare
for this talk, it's really this tension
between maintaining a certain
amount of local legitimacy
but also speaking to global
or universal concerns.
And some of those universal
concerns are quite strategic,
because they get linked to funding.
They get linked to NGO involvement.
So this is the concept
of vernacularization
in kind of its pure sense.
So what do I wanna do with it?
So what I wanna do is kind of take
this notion of vernacularization and
in the good fettschrift manner expand
and adapt it to apply
to a slightly different kind of argument
and that is that I think that
vernacularization can be understood
as a proposition for a project,
a new way of understanding,
a different way of understanding how
human rights norms are
produced which has quite
radical implications for
the future of human rights.
And so what I wanna suggest is that
vernacularization can be used, extended
to describe the many sites
where human rights are
and more importantly should be produced,
challenged, reformed, and
perhaps even enforced.
So to develop the explanatory
value of this argument
I make reference to three case studies,
not my own but three
scholars whose work has been
directly influenced by the
concept of vernacularization.
And what I wanna do is I
wanna show that this argument
about vernacularization as a project
for reframing how we
understand human rights
and indeed how human
rights are produced is
something that's already been present
in the work of various
ethnographers of human rights,
if perhaps not so directly.
And so very briefly the
three work, scholars
whose work I'm gonna be engaging
with or developing is Shannon Speed's work
on the Juntas de Buen Gobierno during
the Zapatista rebellion
against the Mexican state
which was sort of an order of chronology.
Sarah Holcombe's more recent
work on her efforts to work
with a team to translate
the Universal Declaration of Human Rights
for the first time into an
indigenous Australian language.
And then finally Lynette
Chua's fascinating
study of the place of human rights
and the vernacularization
process that take place
among LGBT activism in Myanmar.
So each of these studies
contributes something different
to this effort to think
of vernacularization
in a more expansive way as a project
to reimagine the grounds of human rights.
So just briefly on each of
these three case studies.
So in the case of Shannon
Speed, she conducted research
in this difficult period
of Mexican history
in which indigenous Zapatista
communities were being influenced
by transnational NGOs
to adopt human rights as
the framework for resistance
against the Mexican state
in order to replace the more conventional
revolutionary Marxist framework
which suggested violence
and which had different
kinds of consequences.
And what she shows in her research
and which I'm going to be developing
and working with in my
contribution is how even
very deeply vernacularized human rights.
Now if you know her work
you know how she shows how
in the sense the Zapatistas pushed
the boundaries of vernacularization
beyond what many human rights theorists
and activists would
recognize as human rights.
And this is gonna be sort of
what my point is that we need
to sort of let go of that line
about what we should be
taking as human rights or not.
But she shows how human rights
can play an important role
as a form of potencia, that is,
the good kind of power
in the Spinozan sense,
the kind of power that on
occasion could be mobilized
against the many forms
through which sovereign
violence is expressed
through political economy,
law, and social organization.
So in these three different
categories, I'm gonna be taking
Shannon Speed as an example of the way
in which vernacularization reinforces
the extent to which human
rights can constitute
a form of good power as it were.
Now Sarah Holcombe's research which
by a wonderful coincidence
was profoundly shaped
by Fred Myers' writings on
various questions of Ayangu?
- Analu.
- Analu.
Anago ethno-epistemology,
and I been practicing that word.
And as you can see I failed miserably.
It's not pronounced
exactly as it's written,
but revolves around the project
to translate the UDHR into
an aboriginal language
for the first time.
Now what her study
suggest is that the quest
for normative commensurability,
the idea of trying
to find rough equivalents
for normative concepts,
was itself misplaced.
Instead, in a way that evokes
the work on diatopical hermeneutics
by the Indo-Catalan
philosopher, Raimon Panikkar,
she argues that
vernacularization should be seen
as a space in which the encounters
between different cognitive
and moral worlds can be negotiated
yet always in relation
to particular histories of domination,
resistance, and social suffering.
And here is I don't
have time to develop it,
but the difference between topos
and logos will be important
for this second category of
developing verncacularization.
Now the third case study that
I'm gonna be developing is
as I mentioned Lynette
Chua's more recent work
on LGBT activists in Myanmar.
And this adds a dimension to this project,
to this proposal, that speaks
to the question of empowerment.
How is it that vernacularized
human rights can become
a form of empowerment for
individuals and collectivities.
And I think her research
provides an extraordinary
case study for thinking
through this problem.
And she conducted ethnographic research
in a very, very difficult
circumstances in Burmese history.
So this was a time in which
Aung San Suu Kyi had returned
to Myanmar, and there was a
sense of opening to various
kinds of international and
transnational developments.
Researchers could go back to Myanmar.
And it was also difficult
in a we might call a cultural sense.
So as she describes it there
was a somewhat insidious
combination of what she
calls Burmese karmic logic,
patriarchal social hierarchy
and state suppression
which created what she
calls a triple vulnerability
for the Burmese LGB community.
And so her research is tracking the way
in which these very
hidden activists created
an embryonic LGBT movement
in Myanmar precisely
on the basis of their embrace of human
rights in the vernacular.
And so this was not a mobilization
against the Burmese state.
This was not one which was
leading to radical change.
But it was one which really changed how
people saw themselves and how
they lived as queer Burmese.
And so she in a sense gives
us an extraordinary case study
for thinking through
these very outer margins
where human rights remain important
as a mechanism for empowerment.
And what I wanna say here
is that her account teaches
us that the mobilization of human rights
in the vernacular in this
expansive sense can be radical
but not necessarily revolutionary.
That human rights can become a framework
through which individual and collective
empowerment is expressed and
as important experienced.
And in her account she focuses at length
on what we might think of
as the phenomenological
dimensions of empowerment, as opposed
to their institutional or
even social dimensions.
And she carves out a space
for this phenomenological dimension as
an important way of
understanding the potential
for vernacularized human rights.
And as she puts it, this
is at the end of her study,
"Out of human rights, LGBT
activists in Myanmar fashioned
"a way of living more
authentically as queer people."
Okay, so after developing this
through these various case studies
the notion of vernacularization
as a new project
for re-grounding human
rights, that is expansive
and indeed subversive in relation
to orthodox understandings,
I then step back
in the chapter, I will be stepping back
in the chapter, and using this
concept of vernacularization
to consider debates that are now raging
about the future of human rights.
And so many of you who are
human rights scholars know
those kind of debates
that I'm referring to.
And instead of the do they work
or don't they work angle which tends
to occupy a part of these debates
or the question of
ongoing global legitimacy,
what I'm going to argue is
that vernacularization offers
a quite different response
to the question of the future
of human rights which is
to show how human rights might be reframed
or re-grounded as a trans-local though not
universal logic that harnesses
human rights potential
for power and potencia
in the Spinozan sense,
this diatopical understanding which is
a encounter between different cognitive
and moral worlds and empowerment.
So finally, why do I describe
this account of vernacularization
as an anthropological ethics?
And this brings me back
to the University of Michigan conference
and perhaps explains why I
was never contacted again.
And that is I think to
privilege the practice of human
rights as Sally has done in her work
and to insist on the
practice of human rights
as a fundamental basis for
understanding human rights
for what they can be,
what they are, their limitations, is also
to make an ethical claim
about the importance of
de-colonizing human rights
through cultural pluralism
and normative contingency,
which also carries
implications for the sites
and the people who inhabit
those sites where dominant ideas
about human rights have
traditionally been produced and debated.
Thank you.
(audience and panelists applaud)
- I wanted to thank Philip
Alston for convening us
and for being such a gracious host.
It's a pleasure and an honor to be here
in this stellar panel.
In many walks of life, people
wanna have the last word.
But in academia we know better.
We prefer instead to have the first word.
Being among the first people
to explore our topic is
among the surest ways to
attain prominence in academia.
But you have to have a keen sense
for which under-explored
topics are explorable and worth exploring.
Sally Merry has this knack
for letting her intuition roam
across her broad reading until she finds
a direction for research that other
researchers will want to follow.
In a career made up of pioneering
research engagements, one
for which Sally has
gained most recognition,
perhaps, is the study
of indicators in Texas
and quantification and social
justice reporting in
international governance.
In this area, Sally's
work has certainly had
a productive influence on my research.
Currently, my main area of
research interest is the visual
and verbal rhetorics of
the new evolutionism.
Sally's work specifically makes it easier
for me to move beyond
debunking weakly substantiated
prevalence sustenance to
consider also what she
succinctly calls the knowledge effects
and governance effects of quantification.
My question is how do
prevalence estimates make
knowledge effects felt
within textual and visual
expositions of the wrong of human
trafficking and modern slavery.
I'm convinced that valuable answers
to this question are to be found
by moving away from
evidence based reasoning
and into a critical
vocabulary of feeling, noted
in literary and visual culture studies.
My information sources are
the websites of some
of the world's leading
anti-trafficking and anti-slavery
non-governmental organizations.
To which I give
particularly close attention
at those pages that explain
what counts as trafficking
and slavery and what does not.
Critics of anti-trafficking
may miss the mark
when they simply debunk trafficking
prevalence estimates as fabrications.
What these critics of
anti-trafficking miss is how
intuitions and emotions and
the imagination may persuade
people to support
anti-trafficking efforts even
in the absence of much evidence.
Even as many consumers of anti-trafficking
messages may accept these numbers
at face value, comparable numbers of other
consumers can be credited with seeing them
for what they are, best guesses.
In pondering how both the credulous
and the skeptical may
be convinced that human
trafficking is a vast,
but hidden epidemic.
The knowledge effects of
quantification that interest
me include not just false certainty
but also tacit admissions of uncertainty
and the rhetorical
positioning of not knowing,
not as a reason to hesitate,
but as a reason to act.
In this I find help from
an unexpected quarter,
Karl Ove Knausgaard essay,
"Vanishing Point," published
in the 17 November, 2015,
issue of the New Yorker.
Knausgaard, excuse me.
Knausgaard ruminates on the
expression of feeling triggered
globally by the now iconic
photo of the body of Alan Kurdi,
a tiny Syrian (mumbles) boy found washed
up dead on a Turkish beach.
He identifies this photograph's incidence
into global awareness as a rare occasion
in which media coverage
of the Syria crisis shed
its emotional remoteness
in favor of something
particular, singular, and unique.
The photograph of Alan Kurdi forced
upon its viewers the
realization that not just masses
but people were dying.
Knausgaard writes, "While
this insight may be banal,
"its repercussions are not."
He adds this, and I'm just
gonna let you read it yourself,
because I'm confident you can read it
five times faster, approximately, than
I can read it out to you.
With apologies to people
at the front of the room.
Maybe I should read it.
- [Male Panelist] No, no,
(faintly speaking) you're good.
- No, okay.
So the instant a novel is opened
and a reader begins to read
the remoteness disappears.
A lot could be said about the relationship
between fiction and social
justice mobilization
to which Knausgaard points,
but that's not where I wanna go.
While the epistemological frontier
between personal
narrative and quantitative
and paradigmatic ways
of knowing is exactly
what interests me, I disagree
with Knausgaard's premise that
the novel uniquely possesses
the power to cross and
re-cross that boundary.
Rather, I see vanishing
points being crossed
and recrossed in a lot of social
justice reporting and public appeals.
In the anti-trafficking
literature specifically,
quantification often pops up
at the vanishing point where
the personal narrative of a
survivor or a rescuer segues
into didactic modes of exposition.
This common practice of
juxtaposing prevalence estimates
with personal narratives tacitly positions
the survivor's story as one
instance of a much larger problem.
This story of the rescue of an underage
Filipina sex worker named Kim begins
with a narrative of entrapment.
A kind neighbor, AJ, he inveigles himself
into Kim's life, paying for her schooling
out of seeming benevolence
until he betrays Kim's trust
through an act of sexual exploitation.
AJ's abuse escalates as he poses Kim naked
in front of a webcam and
subjects her to sexual abuse.
The narrative culminates with
Kim's rescue and AJ's arrest.
A prevalence estimate enters
near the end of this story
as a kind of denouement.
Thousands of children are
being exploited online today
in the Philippines, because
people like AJ have absolutely
no fear of being held accountable.
Whether the geographic
scale then is national
or global, personal narratives often
about directly with prevalence estimates
or some other kind of
view from 30,000 feet.
The prevalence estimate is not
something known with any certainty
but is unknown or at best unproven,
a quantity that can only be guessed
at and is quite possibly unknowable.
Knowing for sure how many Filipina
children are being exploited matters
less than knowing that thousands might
possibly be being exploited like Kim.
Thousands might therefore be
called a subjunctive number,
a figure that stands in plausibly
for what we would be likely
to find if only we could know.
In chapters five and
six of "The Seductions of Quantification,"
Sally Merry anticipates
how the impersonal number
often intertwines with
the personal narrative.
Sally describes for example how
in 2000 the Trafficking Victims
Protection Act was pitched
to members of the United States Congress
through, I quote, "horror stories
"about the treatment of victims combined
"with huge estimates of the
number of victims," end quote.
In like manner, Sally
writes about the distortions
inherent in making the
face of trafficking, quote,
"a young girl, usually poor
"and brown who has been kidnapped
"and passed from
hand-to-hand until she ends
"up in a brothel in a
large city," end quote.
Sally was not the first to draw attention
to this frequent juxtaposition of personal
narratives with prevalence estimates
in the anti-trafficking literature.
The major shift that
she signals instead is
to switch the focus of anti-trafficking
from the reliability of numbers
to the knowledge effects
of quantification.
(phone rings)
That's okay, my phone once
went off and I was giving a.
- [Male Panelist] That was
Sally though so it's okay.
- While I was giving a talk
at the University of Chicago
anthropology department.
Oh dear, yes.
(audience laughs)
Whether numbers are reliable,
so I sympathize completely.
Whether numbers are
reliable or not matters,
but it also matters whether
the numbers are believed or not
and what effect they have
on the thinking of consumers
of social justice reporting.
The segue from a personal story
to a prevalence estimate is not
the only way vanishing points are made.
At other moments, the vanishing
point is entirely visual.
Here's the banner image
on the Polaris Project's 2019
webpage on human trafficking.
This image and its accompanying
text convey a mixed message.
The words speak with certainty.
They declare, describe, and quantify
what human trafficking is.
The image by contrast evokes the shadows
in which trafficking is said to thrive.
Text and image together visually
concern, confirm, excuse
me that human trafficking
is a vast, but hidden wrong,
the unperceived presence and unknown
dimensions of which compel us to act
in spite of limited knowledge.
By merging a voice of
clarity and certainty
with an image of occlusion
and uncertainty, this webpage
from one of the oldest
and best network anti-trafficking
organizations conveys
something fundamental
about the new abolitionism.
Faced with the criticism that human
trafficking has been
constructed as a global concern
in the face of a lack of verifiable data,
new abolitionists have on
one hand promised that more
reliable numbers are on their way,
while on the other hand
artfully embracing uncertainty.
It is less a matter of
evidence than of belief.
If you believe, then even failing
to get evidence of captive exploitation is
to be taken as evidence of how
deeply hidden the crimes are.
A first larger point then is
that if quantification seduces
in the new abolitionist
fields that happens not
through numbers alone but
through image, textual
amalgams where prevalence
estimates are juxtaposed
with personal narratives, didactic
texts, and evocative photography.
A second point is that
vanishing points are
expository constructs and not
products of unavoidable gaps in knowledge.
In another possible
anti-trafficking world,
information might fill
the expository space
where prevalence estimates now reside.
Whether through habit, uncritical
acceptance that trafficking
is a hidden wrong,
a preference for simplicity
or an actual aesthetic
preference for the shadow
over the figure, prevalence
estimates are preferred
over the detailed qualitative
studies that, to quote Sally
Merry, "would be essential
"for understanding trafficking in
"all its variation and complexity."
But instead of providing
qualitative case study findings,
new abolitionists do not just stick
with prevalence estimates, but double down
on their importance by saying
over and again that more
reliable estimates are needed.
If quantification is
productive, then the first thing
it produces for the new
abolitionism may not be
false certainty so much as
a jaundiced acceptance of ignorance.
Big round numbers convey
tacitly that not knowing is inevitable
and that uncertainty is the natural
condition of anti-slavery activism today.
It is of paramount importance
as Sally Merry gives
emphasis not just to question
the reliability of numbers
but to examine their knowledge effects
among which I include intuitions,
emotion, and the imagination.
As one of a small handful
of people who have said
important first words on the
seductions of quantification,
Sally has helped me along a
road of discovery that may be
long and circuitous but promises
to be worth following to its end.
Thank you Sally.
(audience and panelists applaud)
- (faintly speaking) my own file here.
Is there another?
Anybody more familiar with.
(faintly speaking)
Thank you Philip.
I've been a fan of Sally's work long
before it was articulated
in relation to human rights.
I followed her traverse
from the anthropological study of disputes
to broader concerns with justice
and the relationship between
international frameworks
and the messy cultural
realities of local conditions.
As New Yorkers know, it's all
about location, location, location.
And I should add our offices are adjacent.
Let's see if we (faintly speaking).
In the early 1970s when I
was first doing fieldwork
with remote living indigenous Australians,
I can remember walking
in the streets of the
town of Alice Springs
in central Australia then a little
town of about 10,000 people.
Well, I had become friendly
with many Pintupi people living
in distant communities such as Yayi
where was my principal field site.
I didn't know at the time
many people in Alice Springs.
I was surprised to be approached
by a somewhat bedraggled looking,
slight, middle aged aboriginal man.
He told me his name was
Chalamo Chabernardy.
And he was the cousin of
my friend at Yayi, Ginger.
Chalamo was part of an
early wave of indigenous
people who had moved east from the desert.
His mother was a Pintupi
woman who had married
an eminent indigenous
evangelist, Titus Rembaracka
from the Andern community.
"Could I help him," he asked.
He had recorded, I would say shared,
some songs for the famous anthropologist
Charles Mountford who
had made several trips
through Central Australia
in the '30s, '40s, and '50s.
I say share to emphasize
he would've understood this
as keeping while giving as
Annette Weiner called it,
not a complete alienation of his rights.
These songs he told me
were men's business based
on important gender exclusive
initiation ceremonies.
I already knew that the
revealing of such music
or ceremony to non-initiated
persons, particularly women
and children was said to
be punishable by death.
As a man who knew their language
and had been given a position
in the kinship system, I'd been allowed
to hear the songs, but I'd also been told
more than once of this punishment
and stories about when
it had been carried out.
Chabernardy looked truly
miserable, incredibly anxious, even
to the eyes of an inexperienced
25 year old American.
I was flustered.
I had no idea what I could do.
I didn't know Mountford or
even whether this record
actually existed or was simply a rumor.
The only recourse I could suggest was
to go the recently established
aboriginal legal aid
services in Alice Springs.
I'm gonna hold back on that
one a minute then okay.
I don't think I ever saw Chalamo again,
and I don't know what happened.
I'm not sure there was
a record in the end.
I haven't been able to find it,
and that's probably fortunate for him.
My encounter with Chalamo
is exemplary of those times,
the 1970s, when concerns
about the publication
of aboriginal restricted
cultural material or the
appropriation of sacred
designs was reaching into the life
worlds of remote indigenous
Australian, in part due
to changes in the technologies
of recording and circulation.
These were not the civil rights
for which protest dominated the 1960s,
and they represent a change
that is also expressed
in the Aboriginal Tent Embassy set up
in the Parliament House lawn in 1972.
If you've never seen
what this looked like,
it was a brilliant kind
of performance art really
in which they took up residence
in the Parliament House
lawn which they had the rights to
by virtue of regulations in the city.
And they established themselves as
an embassy, a sovereign nation.
I wanna tell a few stories
about these matters of cultural property
and how they came to be addressed.
I regard the incidents as important
in several ways, especially
in the context of Sally's work
on the vernacularization of human
rights and the subsequent
developments of the UN
Declaration of Indigenous Rights
and later of intangible heritage.
They didn't exist.
I wanna underscore how indigenous concerns
for control over their
cultural materials came
to find some redress in the
Australian legal system,
perhaps triangulating between
the locally legitimate
forms, Australian legal systems,
and the imagined, more
international imaginings of justice.
This is after World War II.
It's a time when Australia is
under some kind of attention.
This is a case, broadly, that is grounded
in what we now know as the UN Declaration
on the Rights of Indigenous
Peoples passed in 2007.
Article 31 which you probably all know
better than I do provides
for cultural rights.
It reads.
These are out of order.
This was just to give you the early 1970s,
the aboriginal legal aid.
This is a book that was
published, oral history
with the lawyers from Melbourne who came
to work in Alice Springs
to encounter a sort of colonial world
but also a set of cultural understandings
on the part of aboriginal people
and practices that were very different.
This is a photograph of the hearing of a
large number of people.
The magistrate would go out, fly
out on a plane every month or two.
And they would line up all
the people who had warrants
for them, and they would be
processed within an hour.
Okay.
Anyway, the article reads,
"Indigenous peoples have
"the right to maintain, control, protect,
"and develop their cultural heritage,
"traditional knowledge and
traditional cultural expressions
"as well as the manifestations
of their sciences,
"technologies, and
cultures, including human
"and genetic resources, seeds, medicines,
"knowledge of the properties
of flora and fauna,
"oral traditions, literatures, designs,
"sports, and traditional games
"and visual and performing arts.
"They also have the right
"to maintain, control, protect,
"and develop their intellectual property
"over such cultural heritage,
traditional knowledge,
"and traditional cultural expression."
Australia has never signed this.
Anyway, it did not exist as a,
the rights of indigenous people like
the other settler societies
have tended not to do that.
It didn't exist certainly
as even a platform of rights
in Alice Springs in the 1970s,
nor has the government even now signed.
But a sense of a moral
right had emerged regarding
cultural rights or wrongs for
indigenous cultural property.
And these found their way
into Australia's legal world,
most notably in relationship
to intellectual property and copyright.
Anglo Australian legal
categories were expanded
to take on the work of seeking redress
for indigenous claims of
wrongdoing and harm both
inside and outside the
formal legal processes.
In 2006, Justice von Doussa spoke
to issues of indigenous culture
and intellectual property,
summing up this history
to an international conference, explaining
their significance in relation
to concerns over the theft
and appropriation of imagery
and design from indigenous
art in a lucrative
and growing high art market.
"The aboriginal art market,"
he said, I'm gonna quote
from him, "is presently estimated
"to be worth about $200 million a year.
"Along with this demand has grown the need
"to respect and protect aboriginal
"cultural ownership of
images and spiritual
"stories embedded in the works, especially
"against unauthorized
copying and misuse has led
"to a litigation which has explored
"the application of
principles of the common law
"and statutory based protections
"in the Australian legal system.
"The concepts underlying these
principles," he maintains
"are not unique to Australia.
"The principles of the equity that protect
"confidential information and fiduciary
"obligations are well
known and widely applied.
"The statutory regime for the protection
"and exploitation of intellectual
"property reflect
international conventions."
What is interesting is how these
principles have been applied
in the novel context of Australian
indigenous traditional laws and customs.
No doubt mine was not the first suggestion
to an aboriginal complainant
to seek help from legal aid.
But that institution wasn't
even available before 1972.
As an aside that perhaps
explains the moment of legal
development that existed
in Central Australia,
one of the legal aid lawyers
in his oral history remembers attending
a screening of a western cowboy
and Indian movie at a
remote indigenous community
in which the cowboys, either the cowboys
or the cavalry, were winning
when one of the aboriginal
spectators stood up and
shouted, "Call in legal aid."
(audience and panelists laugh)
Sally Merry's work as she moved
from the framework of legal dispute
into human rights helped me
to see these interventions
for indigenous Australians
as part of the post World
War II embrace of human rights
which had shaped Australia's
policies regarding
the treatment of the
indigenous people there.
And in a film that was
made about the Tent Embassy
in 1972 called "Ningla A-Na,"
this is how they started the film
with a series of basically statements.
This is the third of them articulating
Amnesty International's
report on Australia
and its failures to address
the issues with indigenous people.
So that the Tent Embassy
itself was understood
to be in some sense articulating
a claim based on these rights.
Although it wasn't
necessarily understood that
way in Central Australia.
But nonetheless, cultural
rights had not entered seriously
into discussion, but
the wrongs or perceived
injurious experiences were
increasingly demanding response.
So let me give briefly
two examples of disputes
over what might be called cultural
rights that I encountered in the '70s.
One prominent example
with far reaching effects
for Western Desert people was
the banning of Richard
Gould's book, "Yiwara."
at Warburton Range Mission.
For revealing photographs
of secret men's ceremonies,
Gould who was at the time a curator
at the American Museum of Natural History,
location is everything, had
taken photographs of many
ceremonies and promised that these
would not be seen in Australia.
Of course, despite such
impossible promises,
the book found its way to Australia
and into the hands of a
young Ataja woman who was
at school in a nearby town.
Women were forbidden to
access to such knowledge,
and the custodians of
this knowledge threatened
to spear her in punishment
for looking at the photos
and possibly to kill Gould.
The scandal occurred in 1971.
And by 1973 had significantly effected
the conditions under which I was allowed
to visit ceremonies, no notes, no camera.
And through it I understood
Chalamo's predicament.
(faintly speaking)
A second significant event
was the litigation brought
by the Pijinchara people against
Mountford's classic book,
"Nomads of the Western Desert,"
which was published in 1976.
This book contained details
and pictures of secret
ceremonies of Pijinchara
men, details provided
to Mountford some 35 years
earlier during a research trip.
The litigation was undertaken
to prevent publication of the book
in the northern territory where
the people who were photographed lived.
The injunction was
granted as the plaintiffs,
this is according to von Doussa, sued
on their own behalf as
individuals threatened
with damage, damage of a cultural kind.
They argued that the revelations
of the secrets contained
in the book to the women,
children, uninitiated
men may undermine the social
and religious stability of
their hard pressed community.
It was basically decided
on the basis of confidentiality,
and it was prevented from being used
in the northern territory.
However, very suddenly a fire occurred
in the warehouse thereby
saving the publishers,
the possible cost of destroying the books.
They wouldn't be reimbursed.
The question of how to recognize claims
over the display, performance,
and circulation of culture had become
a significant concern
with indigenous people.
Before these questions of
cultural politics had gained
academic focus, as we know they
had considerable visibility
in these indigenous communities,
in the Anglo settler nations.
From early on however, it seems
to me that the indigenous communities
in Australia have struggled
with the subordination of their own law
which they call law with
a capital L in English
to that of the Australian nation state,
more than frequently insisting
on the equality of the
two laws, bewildered
by the fault lines of the
Australian legal regime
which can threaten to chip away
at the sovereignty of the very
protocols it appears to protect.
And the adjustments
around cultural property
in (mumbles) New Zealand,
Maori protocols have
a standing that indigenous
claims lack in Australia.
And the triangulation that
von Doussa celebrated,
there is still a gap in the
articulation of cultural rights.
There's protection but no
recognition of cultural rights
more generally in Australia.
If the conventions on human
rights have been difficult
to translate linguistically
as Sarah Holcombe has shown,
and linguistically and conceptually,
the moral assertions of control
over cultural property
has continued unabated.
And anthropologists
like myself are indebted
to Sally Merry for offering us
ways of considering how laws
and rights have extended
into indigenous communities
and the complexities of
this inter-penetration.
Thanks.
(audience and panelists applaud)
