by Cléo VANDEWALLE
Sally Engle Merry is a professor of Anthropology at New York University and Faculty Co-director of the Centre for Human Rights and Global Justice at the New York University School of Law. Her research includes focuses on law and colonialism, human rights and gender violence and the law. She published Human Rights and Gender Violence in 2006 in order to show the discrepancy between global laws decided in the United Nations and the daily experience of women around the world. She highlights the tensions and oppositions between the international Human rights language and the local contexts of power. She argues that global law should be “translated into the vernacular”. According to her, gender violence constitutes a textbook case to study how transnational Human Rights law is appropriated in a local context.
Sally Engle Merry points out the oppositions framing Human Rights discourse in global law-making structures. Indeed, in her opinion the global-local divide is often seen as an opposition between rights and culture. Culture is seen as equivalent to traditions and customs, as applying to villages and rural areas in the developing world and as homogenous inside a country. There’s the idea that rights are made by the “modern developed world” whereas culture is proper to the “traditional developing world”. This conception of culture is problematic. If culture is seen as homogeneous and permanent ,either it leads to the belief that it is an institution that must not be challenged even if it leads to harmful practices or it is seen as a barrier that has to be removed as a whole in order to implement rights.
That is the reason why Sally Engle Merry calls for the need to clarify what culture means in Human Rights institutions in order to recognize contestations and changes in local communities. She brings out the conception of culture as understood in Anthropology. Anthropologists study culture as historically produced, as an heterogenous repertoire of ideas and practices and as permeable to influence from other cultural systems.
More importantly, cultural discourse is seen as justifying relations of power. This definition highlights that traditions are often created for political purposes. Privileging one tradition over another also signifies privileging one power hierarchy over another. In the context of gender abuses, traditions around marriage for example benefit men holding power and keeps women submitted. It also shows that culture as national essence is an historical construction. The idea of national distinctiveness has been introduced in the nineteenth century Germany to serve its need for unification. Culture must be understood in context. Its meaning changes as the context shifts.
“Cultures are not homogeneous and “pure” but produced through hybridization and creolization”
Sally Engle Merry
This definition of culture is a tool to go over the culture versus rights opposition. Culture becomes something malleable that can be contested without being removed entirely. Furthermore, power structures are not anymore able to resist Human Rights by upholding indigenous sovereignty. It also highlights that Human Right law is itself rooted in a cultural system and is shaped by it.
Sally Engle Merry also brings the idea that global cultural flows are channelled by global inequalities of resources and power. She distinguishes three types of cultural flow : consensus building, transnational program transplant ( transplanting programs from one society to another) and localisation of transnational knowledge ( local actors participating in transnational events and bringing back what they learned home). However, the structure of transnational organizations makes it difficult for less wealthier countries to send delegations. Consequently, they have less influence on the global cultural flows.
This introduction shows that the issue of gender violence is challenging the oppositions and power inequalities within transnational Human Rights discourse. Violence against women has first been discussed as a Human Rights violation in the 1980’s. However, because this violence was performed by private citizens rather than the state, it made difficult to fully be understood as part of Human Rights . In the 1990’s the idea that gender violence resulted from the states’ failure to protect its citizens really introduced gender violence within the Human Rights framework.
The major issue is that gender-based violence is deeply embedded in the institutions of a society. Contesting it means challenging establishments such as marriage, divorce, inheritance and child-care. Lots of societies are not willing to do that. Sally Engle Merry indicates that societies often draw a line between discipline considered as an acceptable form and violence and abuse that is considered as an unacceptable for of violence. That boundary needs to be redefined to protect women from ordinary violence.
“States should condemn violence against women, and should not invoke any custom, tradition or religions or other considerations with respect to its elimination”
General Recommandation 19 from the CEDAW Commitee in 1992
Sally Engle Merry thinks that culture needs to be clearly defined in transnational Human Rights context in order to account for its fluidity and heterogeneity and to find a way to adapt Human Rights discourse to local context. This conception allows to bypass states holding culture as an excuse to protect unequal institutions and balance of power at the expense of women’s rights.
Questions:
- Beng Hui, the information and communication officer for International Women’s Rights Action Watch -Asia/Pacific states that : “ even if there are women within a community/society who accept cultural practices that result in the violation of fundamental Human Rights, we should speak against it since we should adhere to certain standards”. What do you think of it? Do you also think that a potentially violent traditional practice should be totally eliminated even though some women consider it legitimate?
- At the end of her introduction Sally Engle Merry asks the question “does it matter ?” about the documents produced by the UN. Do you think that procedures produced in UN meetings do have direct impact on the attempts to protect Human Rights in local contexts?
- Sally Engle Merry argues that “Reducing violence and rape demands changes in ideas and practices about sexuality, marriage and the family”. Do you think that ideas and institutions around sexuality, marriage and family in our “modern western” culture can lead to harmful practices?
Dr. Meredith Terretta 