INTERNATIONAL HUMAN RIGHTS AND VIOLENCE AGAINST WOMEN: THEORY, GLOBAL STANDARDS AND SOUTHERN ACTORS’ PRAXIS – Some highlights from a forthcoming book
posted by Tamara Relis
My second book is entitled INTERNATIONAL HUMAN RIGHTS AND VIOLENCE AGAINST WOMEN: THEORY, GLOBAL STANDARDS AND SOUTHERN ACTORS’ PRAXIS (forthcoming). It is based on data I collected over three years in eight states of India and in seven languages while I was a postdoctoral research fellow at Columbia Law School and the LSE (London School of Economics, Dept. of Law, where I continue to be a research fellow). This data was collected with the help of eight teams of about 200 research assistants throughout India. The United Nations Development Program (Delhi), 11 law school Deans, domestic judges, state legal services authorities, local district and high courts, NGO’s and human rights/public interest lawyers throughout India were also involved in the project. The dataset comprises 400 semi-structured depth interviews and questionnaires from victims, accused, lawyers, judges, arbitrators and mediators in 193 cases involving human rights violations of serious violence against women. It also includes case hearing observations in lower formal courts, court-linked mediations known as “lok adalats” and non-state, quasi-legal women’s arbitrations known as “mahila panchayats” and “nari adalats” (British Academy Award PDF/2006-09/64).
Similar to my first book, the South Asian research analyzes legal and lay actors’ understandings, objectives and experiences during case processing. However, the South Asian research builds on and takes in new directions the theories and conceptual arguments I developed in PERCEPTIONS IN LITIGATION AND MEDIATION . In particular, it focuses on local, Southern actors’ perspectives (i.e. individuals from the Global South) on the permeation and perceived relevance of international human rights laws and norms in formal courts and non-state informal justice mechanisms.
Drawing on interdisciplinary scholarship (international relations, law & anthropology, law & development, and victimology literatures), the book questions how the current proliferation of international human rights has shaped case processing systems at grassroots levels. Expanding on my North American findings, Southern legal and lay actors provide local perspectives on non-western models of formal courts and informal justice processes as forms of legal pluralism. I examine how, if at all, international human rights laws and norms (e.g. CEDAW 1979, ICCPR 1976, UN Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power 1985) have permeated the processing of these cases, comparing how receptive the different spaces of lower courts versus quasi-legal regimes are to claims made from the international sphere. I further examine the theoretical ideas informing these processes (including norm diffusion theory, universalism versus cultural relativism, restorative justice, and feminist critiques of mainstream human rights paradigms) and how these ideas are understood by those on the ground. The research also highlights the interdependence of all human rights and the link between human rights, women’s rights and development, which has been the subject of much debate. Finally, the findings provide a critique on the boundaries created both between formal and informal justice, as well as between ratified international law and the permeation of international human rights norms in case processing at grass roots levels.
Interestingly, depending on arbitrary factors including parties’ geographic and/or socioeconomic positions within India, the same type cases might be heard in either criminal or civil lower courts (magistrates/sessions/district) or in the above-mentioned court-linked or non-state quasi-legal mediations or arbitrations. The dataset additionally comprises “in-chambers mediations”, which are newly exported forms of American justice to India. These are case management tools that include ADR and plea bargaining methods, which have been and are being taught to Indian judges and advocates by a number of Californian judges and US Department of Justice representatives with the aim of deflecting cases from the overburdened Indian courts where trial waits of 10 years or more are not uncommon. This is being done predominantly for US commercial interests. However, these case management tools also affect the processing of violence against women cases.
This research in India is important to the American Legal Academy because it evaluates and analyzes the workings of exported forms of American justice from the perspectives of local legal and lay actors in the Global South. India is now a significant global economic entity, and South Asian legal studies have become increasingly important to the US legal academy (e.g. new research centers in India created by Yale Law School and others). The research is also timely because women’s rights as human rights were articulated in the Vienna Accord 1993 and the Beijing Conference 1995, dismantling the public/private divide (as oppression of women largely occurs within private spheres). However, little is known about how new conceptions of women’s human rights actually affect those involved in violence against women cases in States that have ratified international human rights documents like CEDAW. Though there is no lack of very interesting literature, discussions are more often focused on structural features or top-down analyses of the workings of particular laws or programs as opposed to understanding the issues from actors’ perspectives. So this project attempts to complicate existing discourses and debates by injecting actors’ comprehensions, views and experiences into the debates.
In the Indian project, I argue that notwithstanding the fact that giving voice and power to those oppressed is a main function of the international human rights movement (Baxi, 2009), and that the meaning of human rights must be grounded in local culture at grassroots levels (Twining, 2009; Mutua 2004; An’Naim 2009; Stacy, 2009), little scholarship bases its analyses on the discourse of those actually involved in human rights violations cases in the Global South in terms of their conceptions and expectations of human rights and their agendas and experiences in various justice systems. I further argue that on the basis that a culturally plural universalism in human rights is an acceptable aim, we are in dire need of a new integrated analytical framework, one that is grounded not only in the perspectives of the subaltern (i.e. those from the Global South) but that simultaneously imbeds their epistemologies within the realities of human rights case processing in the legally pluralistic Global South. This reoriented vision involves not only formal courts but also informal justice or quasi-legal non-state mechanisms processing human rights cases. Indeed, large numbers of criminal and civil cases, including many involving human rights violations, are not taken to the formal justice system in many regions of the Global South. Instead, they are settled through informal justice mechanisms in various forms (Sankaran, P.N. 2003, 30), (Baxi, U. 1986, 11), (Moog, 1991, p.549-51). Yet, there is insufficient empirical literature focusing on this issue from actors’ perspectives.
I link my data to theoretical developments in the interdisciplinary literature on international human rights, which deal with the permeation of international human rights principles and norms to grassroots levels: norm diffusion theory in international relations (Risse et al, 1999; Keck & Sikkink 1998; Sikkink 1993), and vernacularization theory in law and anthropology (Merry 2006, 2003). My preliminary findings indicate that neither norm diffusion theory nor vernacularization theory fully reflect the subjectivities, understandings or actions of the bulk of legal and lay actors involved in these cases. In fact, I show that there are serious discontinuities in both perceptions of justice and objectives of lawyers and victims of violence in local contexts as compared with the normative language enshrined in international human rights conventions, such as CEDAW and the ICCPR. By injecting actors’ perspectives into the debate, the data elucidate distinctions between structures and rights in terms of how the rights of victims who undergo different courts and conflict resolution mechanisms are ultimately concretized. In particular, my findings suggest that notwithstanding international human rights norm diffusion at state levels in India, and even though international human rights global principles may be ‘vernacularized’ to a degree by some NGO’s arbitrating gender violence cases in the extra-legal ‘women’s courts’ of the mahila panchayats and nari adalats (i.e. transmuting global human rights paradigms into local terms and local realities of power and meaning), knowledge and/or use of international human rights laws and principles have largely not permeated to lawyers, lower court judges or parties in gender violence cases. This is particularly significant as lower court judges deal with great numbers of these cases in the formal justice system throughout the Indian sub-continent. Moreover, the discourse of victims and their family members on their desires and motivations in approaching the various justice systems highlights not only a lack of permeation of human rights knowledge to grassroots levels but also questions the perceived relevance of international human rights to the micro-realities of their cases.
I will continue this topic in my next posting.
May 17, 2010 at 8:54 pm Posted in: Articles and Books, Civil Procedure, Civil Rights, Criminal Law, Criminal Procedure, Culture, Empirical Analysis of Law, Feminism and Gender, International & Comparative Law, Interviews, Law and Inequality, Law and Psychology, Law Practice, Sociology of Law Print This Post