Anthropology and International Law

Author(s): Sally Engle Merry

Reviewed work(s):
Source: Annual Review of Anthropology, Vol. 35 (2006), pp. 99-116
Published by: Annual Reviews
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and
Anthropology
International Law
Sally Engle Merry
Department of Anthropology, New York University,New York, New York 10003;
email: sally.merry@nyu.edu

Annu. Rev. Anthropol. 2006.35:99-116

First published online as a Review in
Advance on April 27, 2006
The Annual Review ofAnthropologyis
online at anthro.annualreviews.org
This article's doi:
10.1146/annurev.anthro.35.081705.123245
Copyright (c) 2006 byAnnual Reviews.
All rights reserved
0084-6570/06/1021-0099$20.00

Key Words
human rights,globalization, indigenous rights,sovereignty,legal
pluralism
Abstract
International

human

law, including

rights

law, has

expanded

enor

mously in the past century.A growing body of anthropological re

search is investigating its principles and practices. Contemporary
international

law covers

in wartime;

noncombatants
peaceful

settlement

agreements;
lar regions,

war

the oceans;

the treatment

international

of disputes;

the regulation
and

and

economic

of the global
environmental

of combatants
and

peace

and

security;

the

and trade
arrangements
commons
such as space, po
issues;

the law of the sea;

and human rights.This review demonstrates how anthropological

theoryhelps social scientists,activists,and lawyersunderstand how
international law is produced and how itworks. It also shows the
value of ethnographic studies of specific siteswithin the complex ar
ray of norms,

principles,

and

institutions

law and legal regulation.These

dispute

settlement

around

the world.

systems

that constitute

international

range from high-level commercial

to grassroots

human

rights

99

organizations

INTRODUCTION
International
the past

tional law (Bederman 2001, pp. 12-13). Inter

in

law has expanded

enormously
a
spawned
growing

and has

century

body of anthropological research on itsprin

ciples and practices. Anthropological theory
social

helps

scientists,
how

understand

on

focused

World War
both

viduals,

International

relations

to

lawyers

since

but

states,

II has expanded to include indi

as violators

of international

law

and as bearers of rights defined by interna

international law of human
in
particular, defines a series of indi
rights,
tional law.The

vidual rights that states are obligated to up

the existence

hold. Nevertheless,

and opera

tion of international law depend primarilyon

nation-states

cuses

are embedded

and

ical relations

in the polit

states. This

of these

on the
development

review

of international

fo
law

since themiddle of the twentiethcenturyand

examines
gists

the contributions

and other

social

scientists

its operation

understanding

The

that anthropolo
to

have made

and

law are war

international

and the treatment

international

peace

ful settlement

and

the peace

security;

of disputes;

of

in wartime;

and noncombatants

combatants

economic

ments

and trade agreements;

the regulation
of
commons
the global
such as space, polar re
environmental
issues;
gions, and the oceans;
law of

the
man

rights

free

speech,

the

sea;

and

human

address

principles
to
rights
protection

rights. Hu
rights
from

as

such

torture

and from extrajudicial killing, and rights to

work,

to

to affordable

development,

housing,

and to health. Since the 1940s, a series of in

ternational

conventions

have

articulated

and

established thisbody of human rights.

International
der

law creates

conventions

and

or
legal
moni
treaties,

global

through
and social pressure. The
toring and oversight,
sources of international
in
law are primarily
ternational

conventions

recognized

by states,

and customary

interna

general principles of law recognized by states

defined

ioo

Merry

as "civilized,"

other

ones

international

of contracts,

are
trade

academic

translational

are

2001,
coequal

law; neither

countries

alliances,

between

(Bederman
treaties

and

Because

large number
political

trumps
by

joined

agreements,
and

networks,

connections,

they comply

with international law because of reciprocity,

thedesire formembership in the international
community,
pressure

to appear

the wish

from

countries

other

"civilized,"

for trade agree

ments, and myriad other forms of indirect

pressure (seeKoh 1997).
International

law

to

aspires

universality

but exists alongside

and above domestic
the law of nation-states.
The
domestic
nations

have

been

law?
laws of

into interna

incorporated

tional law.Often the domestic law of nation

serves

states

as

the

arrangements.

legal

for

basis

international
international

However,

law also shapes domestic law (Bederman 2001,

pp. 6-7; Kingsbury 2003). Thus, despite the
myth thatinternationallaw isentirelyseparate
from

arrange

of

the other.

significance.

principle domains of contemporary

countries

Custom

26).

into voluntar

and multilateral

or more

three

on a system

based
enter

nations

are both bilateral treatiesbetween

ily.These

two countries

sources

law originally

among

law is increasingly

of treaties, which

p.

law is produced

international

itworks.

and how

and

activists,

national

domestic

closely

law, in practice

the systems

However,

international

law

law in that it is grounded

nation
of sovereign
nations. Each
domestic

able

are

connected.

to its own

domestic

order

differs from
in a system
is account
and

not

to a

larger internationalcommunitybeyond what

it consents to do (Bederman 2001, p. 50). Ac
to the classic doctrine
of sovereignty,
cording
to force
no central
has
the
power
authority
states to
its decisions.
with
sovereign
comply
to
Short of war, no country can force another
own citizens.
its
its
toward
change
practices
is not a matter
of abso
However,
sovereignty
to which
the
lute autonomy,
although
degree
law is a mat
it is constrained
by international
ter of
international
debate
among
ongoing

lawyers (see Kingsbury 2003). In practice,

within the present global order sovereignty
is increasinglycircumscribed (see Chayes &

Chayes 1998; Slaughter 2004). It is becom

on

ing contingent
mum of human

compliance

rights

tion's own

residents.

discourse

and

for the rule of law

facilitatedby the 1990 collapse of theUSSR

and the establishmentof liberal political or
in parts

ders

of Eastern

Europe,

the

against

backdrop of destructive ethnonationalism in

the formerYugoslavia, facilitated thisunder
1997,
standing of sovereignty (seeWilson
p. 2; Cowan 2001). South Africa is a prime
of a country

example

whose

vio

systematic

lations of human rightsprinciples under the

apartheid systemmade it an international
coun
less-powerful
to
vulnerable
this pressure,

state. However,

pariah

are more

tries

some

whereas

of

the most

such

powerful,

as theUnited States, refuse to be bound by

some

aspects

law at all. The

of international

on

dependent

processes.

the way

refus

In the absence

of a central

how

authority,

does internationallawwork?Where do these

laws come from? How are they enforced?
Some

scholars

legal

that this is not

argue

real

and

centralized

rule

the

courts,

clas

sic domain of legal anthropology. Both rely

on custom,

social

among

negotiations

and

collaboration,

pressure,

to

parties

rules

develop

and resolve conflicts(e.g.,Nader 1969,Nader

& Todd 1978,Redfield 1967). In both, law is
plural and intersectswith other legal orders,
or other

that of nation-states

whether
zations

or forms of
private

1990).

Each

order

organi

governance

(Nader

constitutes

semiau

tonomous social fieldwithin amatrix of legal

pluralism (Moore 1978). Both depend heavily
on

and

reciprocity

did theTrobrianders inMalinowski's

and

Gossip

to appear

as

the threat of ostracism,

compliance
fostering
are in small
communities.

while

conventions

law works

international

law of villages without

and formal
bodies
making
the

with

rights

can

analysis

Some intriguingparallels can be found be

tween

account.

human

set of

complex

of these processes.

United States, forexample, typicallycomplies

ing to ratifythem (see Ignatieff2001; Koh
2003).

Anthropological

some

illuminate

of a rights

expansion

enthusiasm

and

biguous
social

a na

toward

principles

The

a mini

with

civilized

(1926)

are

in
important
as
internationally
they

scandal

Social

pressure
to

countries

encourages

ratifyinternational legal treaties (Hathaway

2002, Koh 1997)much as social pressure fos
ters

in small

conformity

communities.

to follow

others

tries urge

Coun

the multilateral

law because it lacks centralized judicial insti

treaties they ratify,but treatymonitoring

to enforce com
tutions, police, and the means
in
of
One
basic
the
about
questions
pliance.

depends

ternational

is why countries
obey
claim
that states comply

law

laws. Realists

2006).

Conversely,

ments

and

research

on

are many

only

in villages
Some

organizations

(NGOs) shows thatcivil societyplays a role in

holding
although

violence

paramilitaries
dilemmas
premised

accountable.

governments
by

nonstate

or

such

actors,

movements,

guerilla
for a system of

on

Moreover,

international

the actions

controlling

as

poses
law

of states,

international legal institutionsare beginning

to define

these

actions

as

subject

to their

in

tervention(Alston 2005). Thus, international

at the same
and
is changing
developing
are am
time as its enforcement
mechanisms
law

and

social

pressure

differences

between

social ordering
but there are some

and in the world,

similarities.

social move

nongovernmental

shame

(Bayefsky2001,Merry 2003). Clearly there

these

when it is in their self interest(seeDembour

on

largely

widely

law are so

in international

principles

that they are known

accepted

as cus

tomary law,jus cogens(compelling law),much

as informal law and custom form the basis
of social ordering in small communities (e.g.,
Nader 1969, 1990;Nader & Todd 1978).Jus
cogens norms
are no
on

are so well
enforced

longer
consent.
The

1969

that

established
and

do

Vienna

not

they

depend

Convention

thatdefines internationalagreements cz\hjus

cogens

norms

those

"accepted

and

from which

no

recognized

by the internationalcommunity of States as

a whole

as a norm

derogation

www.annualreviews.org Anthropologyand InternationalLaw

101

is

The

permitted."1

of

Declaration

Universal

Human Rights (UDHR) is now considered

jus cogens.
According to a 2003 opinion of the
Inter-American

Court

of equality

principle
tection before

of Human

before

the law, equal

the law and nondiscrimination

rests on

that permeates

ple

all laws."2 Jus

trump other norms

become

Laws

them

as customary

when

states do not

and other

complain or object (Bederman 2001, p. 20).

to law

Similar

in small
are

law rules

ternational

produced
through
and consensus
forma

of deliberation

process

in

communities,

tion rather than imposition (see Riles 2000,

2006a).

Global

meetings,

and

Merry
sion

icy

trade

resolutions,

produce

statements.

commis

conferences,

The

all

negotiations
and

declarations,
conventions

pol

that make

up international law are produced bymulti

party discussion
countries.

and negotiation

Much

of multilateral

among many

of international

law consists

developed
countries. To some

tively by individual

extent,

the legitimacy of these internationalnorms

out

grows

of

process

communities

of

process

international

that emerges

parallels
when

the

inter

over

time.

and

compromise

consensus

national
This

this

and

negotiation

that occurring
they negotiate

in local
the

rules

they live by throughdisputing. For example,

Comaroff & Roberts' (1981) studyof disput
ing among theTswana people in South Africa
shows

how

the parties

to the conflict

a
of norms, general
repertoire
customs
to resolve
particular
outcomes

of the conflict

and

draw

principles,
conflicts.
the rules

on
and

The
that

of Treaties,
1Art. 53, Vienna Convention
vol. 1155, p. 331, quoted in
23 May
1969, U.N.T.S.,
Satterthwaite 2005, p. 43.
2
Inter-AmericanCourt ofHuman Rights, Juridical Condi
tionand Rights of theUndocumented
Migrants, Advis. Opin.

102

Merry

law

resolutions

nonbinding

of general

principles,

typically
or state

as the Uni

such

after
resolutions
and discussions.
Only
a state ratifies a treaty is the state committed
to

complyingwith its terms.Non-binding dec

larations and treatiesmay well lead to bind
ing treaties in the future (Bederman 2001,
p. 27). Environmental law, for example, had
no rules at all 60 years

ago but gradually

and

international

drew

on general principles from domestic judicial

systems

customary

treaty making.

begin

are

There

to

law

now

se

riesof treatiesand detailed regulatoryregimes

with

conventions

tion,

fisheries

on

acid

management,

and trade restrictions

vation,

rain, ozone

deple

wild-life

preser

to promote

these

goals (Bederman 2001, p. 48; see Zerner

2003). In the terms used by international
norms

environmental

lawyers,

to

global

regimes
treaties.

have

moved

(2003), para. 101, cited in Satterthwaite 2005,

and regulatory
systems of treaties
are a number
of regional
bodies
and

THE DEVELOPMENT
OF
INTERNATIONAL LAW
Although international commercial law is
ancient

quite
about

been
long
the development

and there has

war,

regulating

concern
of a set

of internationalregulations governing politi

cal and

social

the past

issues

century,

dramatically
countries

is relatively

the web

and contracts

ments,

ferent
on the Law

p. 43.

international

versal Declaration ofHuman Rights, which

become solidified over time through subse

has

OC-18/03

of

from "soft law" to "hard law." In addition

collabora

treaties,

avail

repertoires

quent

princi
norms

cogens
or treaty law.

of customary

established

announce

states

it is a fundamental

it and

from

begin
ments

belongs tojus cogens,because thewhole legal

structureof national and internationalpublic
order

norms

The

pro

the

govern

1981).

"the

Rights

reinforce

they

able for futureconflicts (Comaroff& Roberts

recent. Over

of treaties,

agree

linking nations

together
Members
of dif
expanded.
now
in
participate
creating

such global legal orders,whether concerning

or concerning
the regulation of sex trafficking
the emission
now

as

of greenhouse
gases. However,
in the past,
nations
play
powerful

disproportionately large role in shaping these

institutions.

The formationof a systemof international

law generally
dates to the international
order
states created
of nation
the
of
by
Treaty

in 1648 in which the emerging

Westphalia
nation

to a system
of Europe
agreed
state
the
autonomy
respected
of other states (Bederman
independence
states

in which
and

each

2001, p. 2). Of course, at that time the

majority of theworld layoutside this system.
a close

there was

Indeed,

connection

between

the expansion of international law and the

emergence of empire. Anghie (1999, 2004)
argues that international lawwas shaped by
the

encounter

sixteenth-century

between

the Spanish and the Indians. At that time,

Francisco
of

one

de Vitoria,

international

of the originators
a secular

substituted

law,

tional

are

business

important

increasingly

(Sassen 1996, pp. 12-20). A series of insti

as the
European

such

tutions,

North

Union,

American Free Trade Agreement (NAFTA),

theWorld

Trade

the Interna

Organization,

tionalMonetary Fund, and theWorld Bank

(Halliday & Osinsky 2006), have developed
in the postwar period to handle international
economic
on

and

trade

trade

relations.

networks

work

Snyder's

demonstrates

the possi

bilities of an ethnography of the interna

tional trade system (Snyder 2005). A growing
of

body

national

to resolve

institutions

works

commercial

conflicts.

inter

Between

1970

and 1990, the system of international pri

vate justice shiftedfrom relatively informal
on

based

arbitration

scholars

European

and

and universalizing basis for legal authority the InternationalChamber of Commerce in

for religious papal authority.He argued Paris to "offshorelitigation"with greater em
that because the Indians had a capacity for phasis on Anglo-American law firms for re
sources and clients, on fact finding, and on
be
under
reason,
they could
incorporated
same
as
adversarial lawyering(Dezalay & Garth 1995,
the
law
the Span
system of natural

ish. This natural law system allowed the

Spanish to travel and sojourn in the Indians'
territory
attempt

to

and

respond
as an
at resistance

to

Indian

any

act of war

that

justified retaliation. Thus, under Vitoria 's

theory, the Spanish gained the right to
"defend"

themselves

resistance

Indian

against

(Anghie 1999, p. 95). Rather than seeing

international

law

to

brought
shows
how

the

as

colonial

the

preexisting

system

encounter,

Anghie
the new

encounter

and

problems itposed formed international law.

One

of

tional

law

economic

concerns

the central

tional

corporations

nomic

over
activity has,
an enormous

produced

of

interna

is the regulation
of transnational
The
of transna
activity.
expansion
and

of

inter

rights

particularly
legal regimes
and contracts

commercial

arbitration.

to guarantee
for firms doing

property
transna

such

boundaries (Nader 2005).

Amp's (2000) study of the texts and
impacts of the World Trade Organiza
tion, especially two of its new multilateral
on Trade

Agreement

agreements?General

and Services (GATS) and theAgreement on

Trade-Related

of Intellectual

Aspects

Prop

how these
erty Rights (TRIPs)?examines
new formsof global legal regulation operate.
He

analyzes
ralism, or

them

as

interlegality,

examples
to use

of

legal

Santos's

plu
term

(1995). This term emphasizes how legalities

another. This

expansion

as

the negotia
rivers that cross national

over

tion of disputes

clash, mingle,

duction systemand the global market forfi

nancial services has come global legal reg
ulation,

conflicts

two decades,

national mechanisms of managing disputes

and negotiating rules (seeHalliday & Osinsky
2006).With the expansion of the global pro

New

international

eco

transnational
the past

pp. 34-36).Myriad systemsexistforhandling

hybridize,
takes place

one

and interact with

at several

levels: be

tweennational legalities and among legalities

not

centered

necessarily

(Arup 2000, p. 5).These

reemergence
on

based
codes,

on

legalities include the

of a supranational
transnational

and private

state

any nation

lex mercatoria

contracts,

model

arbitration.

The rapid development of offshorefinan

cial
evade

systems

and

state control

tax havens
of financial

provides

ways

transactions

to
for

www.annualreviews.org Anthropologyand InternationalLaw

io?

out under

Carried

purposes.

the aegis

of thefreemarket, such systemsbuild on dis

courses

of unique

market

global

ble

and distinctive
and
can

who

persons

places within
the celebration
of flexi
readily

move

one

from

place to another (Maurer 1997).They provide

cial

state

for escaping

places

transactions

and

of finan

regulation
tax payments,

more

to

difficult

trace

and

police.

on

state

they may

sovereignty,

rep

resentmore fundamentalshiftsin the location

in offshore

Investors

of regulation.

locations

stillneed to operate with high levels of trust

and

some

to have

ownership

and

tems

new

of security of
guarantees
contracts.
of
The
guarantees

rapid proliferation of offshorefinancial sys

and

raises

questions

about

the location

of the
sys
regulatory
them to function (see Maurer

institutionalization

tems that enable

THE DEVELOPMENT
OF
INTERNATIONAL HUMAN
RIGHTS LAW
War

II, an elaborate

rights documents

human

and

(U.N.)

and

of

system

for

organiza

tions (see generally Steiner & Alston 2000;

Kingsbury 2003). The development of thehu
man

rights

system means

with

compliance

are

widely

the conventions

these norms,

a transnational

represent

body

of norms

gov

erning social justice and specifyingthe rights

of states

to their members.

concept of human rights itselfhas

over the past

transformed
dramatically
as activists have
it in a va
deployed
contexts. A
innovative
of
expan
riety
major

been

50 years

sion has occurred from an individuallybased

conception of legal and political rightsadher
ing to individuals to protect themfrom the

oppression
dom from

of the state, such as rights to free

to due process,
torture or the
right

tomore collectiverights to survivalandwell

being (seeMesser 1993 ;Sarat& Kearns 1995).
New

human

collective,
tivists

leaders

and

of which

rights, many
are

During

institutions

its subsidiary

conventions

ratified.
Although no judicialbody can enforce

nous

implementingthesedocuments has developed

internationally,focused largelyon theUnited
Nations

are bound

constandy

being

of the human

are more

created

by

ac

rights system.

These include the rightto development, elab

orated in the 1980s (Alston& Robinson 2005,
Sen 1999), and women's rights in the 1990s
(Peters& Wolper 1995).

1997, 2005).

Since World

conventions

by them, but the major

The

Although such changes are typicallyseen as

an assault

that ratify these

and obligations

whereas

thedigitalizingoffinancial transactionsmakes
them

states

that not only

states

the 1980s and

peoples

sought

support

1990s, indige
from

the U.N.

Human Rights Commission for their claims

to resources

and

culmi

self-determination,

nating in a draft declaration of rights of

indigenous peoples (Coulter 1994, Tennant
1994, Trask 1993). The development of
human

rights

documents

dealing

raised

peoples
digenous
or
community
rights with

issues

in

with
of

group
force.

particular

but also individuals are considered to have Beginning from amovement by leaders of in
an initial
rightsand responsibilitiesunder international digenous groups in the Americas,
of conventions
declaration on principles for the defense of
law. Aseries
focused on specific
spheres of rights, such as civil and political

rights,

economic

and

social

rights,

women's

rights,children'srights,therights of racialmi

nations
indigenous
at a U.N.

sented
U.N.

Sub-Commission

was

formulated

conference
on

in

and

pre

1977. The

the Prevention

of

Discrimination and Protection ofMinorities,

part of theU.N. Human Rights Commission,
basis of the human rights system (Bayefsky created theWorking Group on Indigenous
2001, Peters & Wolper 1995). This system Populations in 1982. This soon became the
on
structure
of
the same
is built
formal
leading international forum for hundreds of

from tor
and the rights to protection
norities,
ture and
the statutory
constitutes
genocide,

states tied
sovereign
through
as the rest of international
law. Only

autonomous,
treaties

104

Merry

indigenous

peoples'

leaders

and

representa

tives as theymet each year in July at the

was also buf

Human
Working Group meetings inGeneva (Coulter
rights development
fetedby global political struggles such as the
1994, p. 37; see also Anaya 1994, 2000). In
digenous peoples incorporated into settler Cold War. Although theUniversal Declara
states such as the United States, Canada,
tion includedboth civil and political rightsand
on
New
and
social and economic rights, it proved politi
Zealand
drew
the
lan
Australia,

guage of self-determinationdeveloped in the

late 1940s and 1950s to fight colonialism
(seeNagengast & Turner 1997,Trask 1993,
Turner 1997).
Although indigenous groups sought self
determination
were

under
not

generally
but

pendence
munities.

were

law, they
or inde

statehood

seeking

survival

They

international

com

of their cultural

for cultural

searching

identityand control over land and other re

sources

rather

than

1992).

(Lam

autonomy

This has been a fundamentally legal strug

gle, using the language and institutionsof
the law rather than other forms of political
contestation.

of the major

One

the establishment

been

objectives

of some

degree

and self-governance.

gal autonomy

The

has
of le
Draft

Declaration on theRights of Indigenous Peo

ples, finalized in 1994 afteryears of discussion
among

indigenous

tatives,

includes

tain

and U.N.

groups

represen

the right to create and main

own
governments
peoples'

indigenous

cally

cated

by socialist

and

regional,

human

international

commissions
geoning
zations.
tions
were

and

and organizations
civil society of human
Strong regional human
in the Americas

existed

rights organi
rights institu
and Europe

in Africa. However,

developing

rights
a bur

and

the post

9/11 concern with terrorismmay dampen

human

rights

enthusiasm

as

security

takes

on greater significance (Wilson 2005a). In

some

ways,

concerns

with

peace

and

secu

rityhave long been antithetical.Peace may

be achieved at the price of ignoringhuman
whereas
rights violations,
can
as some
lead to war,
and scholars

claim

occurred

respecting

rights

leaders
political
when
the United

States invaded Iraq in 2003 (see Cushman

2005).

which

governments,

the right to work

viets advocated

empha

so

and other

cial rights, theUnited States promoted civil

and political rights such as free speech and
freedom of religion. In the 1950s, worried
that an international investigation into the
economic,

and political

educational,

dispari

ties betweenwhites and AfricanAmericans in

theUnited States could prove deeply embar
rassing and provide a platformfor the Soviets
to trumpet

the importance

of food

and hous

U.S. StateDepartment officialsde

ingrights,
to
cided emphasizefree speech.This provided
a

to criticize

platform

deep.
national,

many

by the cap

supported

sized economic and social rightssuch as rights

to food,housing, and health.Whereas theSo

not

there were

with

italistand democraticWest, which focused on

civil and political rights,and the other advo

between

adopted.
the 1990s,

a convention

produce

two tracks, one

followed

and theirown laws and legal systems(Coulter

1994, p. 40). However, as of 2006, itwas still
By

to

impossible

both sets of rights.The development of the

human rightsframework in the 1940s to 1960s

the Soviet

suppression

of dissidents (Anderson 2003). The

these

Developing
social

asserting

division

of rights remains
categories
countries
take the lead in
and

economic

and

rights,

the

United States focuses on civil and political

rights.
cludes

Sen's

that development

argument
human

promoting

rights

in

emphasizes

the linkage among rights and the importance

of social and economic rights (e.g., Sen 1999;
seeAlston & Robinson 2005).

Inequalities inwealth and power between

the globalNorth and theglobal South have a
major impact on the shape and operation of
thehuman rightssystem.As Rajagopal (2003)
argues,

international

law

changed

in response

to the demands made byThird World

movements.
nomic

For

growth
to the
response

example,
to poverty
politicization

the shift from

reduction

social
eco

came

of poverty

in
and

demands for change. Although the develop

ment of international law is often described
www.annualreviews.org Anthropologyand InternationalLaw

105

by legal scholars as the logical outgrowth of membership as a way of governing through

internationallegaldeliberation,he argues that existing institutions.
This strategy
minimized
to the pressure

it responds
tented

worries

Despite

of poor

costs

and discon

that the human

rights sys

tem is a new form of imperialism, it has

very

produced

few

to protect

interventions

human rights (Donnelly 2003). However, vi

of human

olations

are

principles

rights

in

creasinglybeing used as justificationsforvar

ious forms of international

inKosovo.
sometimes
human

as

action,

military

States and internationalNGOs

pressure

other

states to protect

rights of their populations.

the U.N.

on Human

on China

to put pressure

Rights

to reverse

its

poor human rightsrecord (Foot 2000).

the human

Thus,

system

rights

on the old

represents

international

order

of sovereignty.Although it isnow the domi

nant language of global justice, the concern
with terrorism and security post-9/11 may
cen
shrink its importance in the twenty-first

tury (Wilson 2005a). Because individuals are

with

endowed

their human

human
dignity

of their membership

on

rights

in a nation,

than nation-state

incorporative

the basis

than on

rather

of

the basis
it is more

law and valu

able for theburgeoning populations of nonci

tizens

such as illegal

immigrants

and refugees

(seeCoutin 2000). These are groups excluded

from citizenship but still endowed with hu
man rights,at least theoreticallyalthough not

always in practice (seeDembour 2003; Sarat

& Kearns 2001).
Nineteenth-century
a
transplantation

wigs,

and many
rule

European

pro

imperialism

duced

of

laws,

courts,

of the other mechanisms

to the very different

of

contexts

of colonial society (seeComaroff & Comaroff

1991, 1997;Merry 2000). International law
adds a new layer of legal pluralism to this
legacy of colonialism. The

government
nance

of

often
separate

encouraged
personal

British colonial
the mainte
laws

governing

familyandmarriage on the basis of religious

io6

Merry

to

resistance

Malaysia, and Fiji (see Merry & Brenneis

2004). Bowen (2003) and Benda-Beckmann
&

have

Benda-Beckmann

the emer

studied

gence of formsof postcolonial legal pluralism

in Indonesia that include international law
&

Benda-Beckmann

Benda-Beckmann

2005, 2006; Benda-Beckmann 2001).

TOWARD AN ANTHROPOLOGY
OF INTERNATIONAL LAW
Anthropology
tions to the

a new international legal regime, although

one constructed

of

exam

For

Commission

High

forms

reduced

legal distinctions
fosteredseparatismand ethnicviolence in the
postcolonial period in places such as India,

(e.g.,

the

ple, during the 1990s theUnited States sought

to use

and

colonial control. These

their forms of resistance.

and

people

can make

contribu

significant

of in

and analysis

understanding

law. Its focus on the meanings

ternational

and

practices of small social spaces, whether in

or

villages
bunals,

a far
deeper

the various

how

tri

of international

the corridors

enables

of

understanding

law ac

facets of international

tuallywork. The analogy to village law, de

spite vast differences in these forms of law,
shows

the

particular
wider
structural
meaning.

of
possibilities
individual
situations,

analytic

on

and

inequalities,

international

Although

focusing
actions,
of

systems

rec

lawyers

ognize the historically produced and eclec

tic nature

of

international

in many

locations.

law, ethnography
it operates

in the way

the variations

reveals

For

CoxshalPs

example,

(2005) analysisof a group ofAndean villagers'

refusal to participate in the Peruvian Truth

and Reconciliation Commission

are

they

indifferent

shows why

to the commission,

their

difficultyin narrating the pain of state vi

olence and conflict, and the gendered and
racialized identitiesthat shape thesedecisions.
Her

ethnography

claims
motes

offers a valuable

that narrating

pain

and healing.

forgiveness

antidote

to

in such a forum pro

Moreover,

an

anthropological perspective on international

law

leads

of meaning

to greater
that

attention

shape

to the systems

international

actions

and theirhistorical and structuralorigins. For

example, Razack's (2004) recent studyof the challenges of producing a report on child traf
in
violence ofCanadian peacekeepers inSomalia
ficking
creating hu
Bosnia/Herzogovina,
man
the
narratives
is
racial
that
under
rights reports
highlights
deeply political. Her
a human
as
re
of
the
the
whole
writing
ethnography
gird
peacekeeping project,
rights
North

"civilized"

to rescue

seeks

the appar

entlychaotic and violent Southfrom itsinabil

ity

to govern

itself. She

these narratives

locates

in theCanadian imperial conquest of native

peoples and long-standingimperialnarratives
of white

to con
latter help
as
peacekeeper
self-identity
The

supremacy.

struct a Canadian

a basic

port,

feature

of human

ac

rights

tivism,delineates thepolitical and social hur

dles to producing thiskind of knowledge.The
obstacles include inequalities in resources,
about who

ambiguities

on what

strictions

is in control,

the preferences

confronted

as

counts

re

and

She

expertise.

of wealthy

donors,

to the world.

their

A growing body of anthropological schol

arshipon human rightsNGOs provides a rich

of local researchers, ambiguities and distrust

and

complex

of

understanding

these organi

zations and the kinds of support they pro

vide

to the human
and

tional,

Local,

system.

rights

NGOs

transnational

na
to

contribute

the draftingof documents and shoulder a sig

nificantportion of theburden of implement
ing human rights declarations (see Keck &
Sikkink 1998; Risse et al. 1999).They do re
search,

identify

issues,

atten

media

generate

tion, define problems inhuman rights terms,

and bring

these issues

to the attention

of inter

national political organizations (see Keck &

Sikkink 1998; Otto 1999).McLagen
(2005)
shows
tions

create media

how NGOs

technical

representa

even

of human

providing
rights abuses,
to other organizations
for
tar
and
issues, preparing
videos,

expertise

developing

geting publics by developing a range of spe

cialized messages. AlthoughNGOs and gov
ernments
there

in these

collaborate

are

also

significant
them. Governments
resist
of violations

exposure

important

tensions

the criticism

that are

the

ways,

between
and

standard

approach of human rightsorganizations (see

Merry 2006a).
Human
international
ments,

rights NGOs
and

pressures

local
from

are

caught

between

normative

commit

international

hinders,

the constraints of national and nationalist

politics, and the limitationsof human rights

discourse itself (e.g., An-Na'im 2002, Berry

2003, Karim 2001, Leve 2001, Leve & Karim
2001, Pigg 1997,Rosga 2005, Samson 2001).
As Rosga (2005) argues in her analysis of the

assumptions

in the construction

about

the

of research

methodologies,

simmering
and Muslim
groups,

Serbian

incompetence

and

budgets

tensions
and

between
fundamen

tal problems of translation (2005). There

she notes,

no word

in the Bosnia

language

is,
for

trafficking.
Anthropologists
times

play
roles

contradictory

and some
complex
as scholars
and as

activists in the chaotic,multilayered world of

international and local human rights advo

cacy (Jean-Klein& Riles 2005, Coxshall 2005,
Rosga 2005, Merry 2006a, Sharma 2006).
Sometimes anthropologistswork with human

rightsNGOs, merging theirscholarshipwith

activism inways that challenge

traditional no
as outside observer
tions of the
anthropologist
amore
to deeper
but contributing
insights and
ethical

engagement

with

their

An

subjects.

thropologists often play critical roles as ad

vocates
For

and

of indigenous
supporters
an
example,
important
victory

claims.
in

the

Awas Tingni decision of the Inter-American

Court ofHuman Rights in 2001, which es
tablished a principle of the rightof indigenous
to the
protection

peoples
land

and

resources,

of their customary
on substantial
depended

background research by anthropologist Ted

McDonald
(Anaya & Grossman 2002, p. 1).
The people of Awas Tingni in the Atlantic
coast

region

assistance
and

of Nicaragua

from United

anthropologists

received

substantial

States-based
lawyers
in their case, which
pro

duced the first legallybinding decision by an

international tribunal upholding the collec
tive land and resource rights of indigenous
www.annualreviews.org

Anthropologyand InternationalLaw

107

the state failed

people when
& Grossman

2002,

to do

so

(Anaya

p. 2; see also Anaya

1994,

2000).
and

transplantation
of

concepts

rights

and

the

localization
rule

of

of

law

are

also central to disseminating human rights.

institutions,
one

taken from

and laws are

procedures,
context
cultural
and recre

ated in quite another, usually by wealthy

donor

nations.

Localization

has

exam

been

human

national

rights and other

law have

become

forms of inter
impor

increasingly

tant,such asGoodale's work inBolivia (2002),

An-Naim's on Africa (2002), andMerry's on
women's

rights

in several

coun

Asia/Pacific

tries (2006a), as well as by international re

lations scholars (Keck & Sikkink 1998, Risse

Ropp & Sikkink 1999).Tate's (2004) studyof

human

are

to
and open
problematized
and
reflection
ethical
political,

existence

rights

in Columbia

reveals

and intervention (p. 4). Globally circulating

left.

become

practices

into documents,

fixed

mented,

tent, forms of agreement,

and other

contracts,

mine

such

emerge,

under which

as the need

at transnational
organi
studying up; looking
zations
concerned
with
trade, peacekeeping,
human
aid to see
rights, and humanitarian
to
how they create rules and impose pressure
at the
them; and looking
support
larger po
contexts
in
litical and economic
that shape
ternational
the claims
of some
law, despite

over

collateralwill be judged,documents are devel

oped which structurethesedecisions (A.Riles,
unpublished manuscript). Similarly,negotia
tions around development projects inAfrica
take place through a technology ofmatrices
and

even

numbers,

are

these

when

far re

moved from actual situations.The technology

itself,as Rottenburg (2002) shows, produces
serves

truth, which

as the basis

for fur

ther development planning. The knowledge

practices

produce

forms of organiz

particular

ing informationshaped by legal rules.These

forms

An anthropologyof internationallaw includes

to deter

system of law conflicts

then create

themselves

representations

of knowledge.
The transnationallymobile

INTERNATIONAL LAW AND

KNOWLEDGE PRACTICES

sedi
of in

letters

legal forms (see Riles 2000, 2004; Pottage &

Mundy 2004;Miyazaki & Riles 2005). As new

the

the oppor

tunistic appropriation of this technology by

groups on the political right as well as the

and

concepts

legal

situations

ined by anthropologists working in areas

where

tive

technological,

The

Legal

where the conditions of individual and collec

practices

of

and

international

knowledge

domestic

defining

in important ways,
subjectivity
as citizens, noncitizens,
persons

portees,

and

reshape

for example

adoptees,

law
re
de

(Coutin

2000, Coutin Mauer & Yngvesson 2002). Be

cause

tuses,

to define

of law's capacity

establish

the rights

and

its transnational

implications

duties

dispersal

for persons

who

identity

of various

and
sta

has

significant
cross bound

that the system evolves

accord
practitioners
to its own
and technologies.
It
ing
principles
can focus on the
of law
practices
knowledge

aries.As Kelly (2004) shows inPalestine, the

and defining identity,often sit at the inter

section of plural legalities.As Ong & Collier
(2005) note, as global forms are articulated

use

lines that laws create

serve

to include

and ex

clude, constituting identities and marginali

The knowledge practices of law include
ties.
and their transnational
circulation:
particular
of
of
intersection,
points
technologies legality, multiple ways of defining selves and, as they
become
and sites of negotiation among multiple sys
part of local consciousness,
produc
tems of law.The knowledge practices of law, ing new subjectivities. The
focus on knowl
as a domain of legalityand the
including itstechnologies forproducing truth edge practices

in
as

io8

specific
"global

Merry

situations,
assemblages,"

which

they

they provide

refer

to

a site

of ethnographic

cific technologies
sent innovative
to

understanding

law.

methods
and practices

anthropological
the impacts

to examine

spe

of law repre
contributions
of international

INTERNATIONAL HUMAN
RIGHTS LAW

For example, Dembour (2006) reexamines

the universalism/relativismdebate through a

A substantialbody of research in the field of

legal anthropologyhas developed theoretical

as revealed
study of human
rights practice
in cases at the European
Court
of Human
sees human
as a matter
She
Rights.
rights
of discourse
and practice
in partic
located
ular places
and uses her
of
practice
analysis
to
the meanings
of universalism
problematize

frameworks
human
way

for analyzing
international
law.
This
work
demonstrates
the
rights
law creates
social order
defin
through
useful

ing relationships,punishing certain formsof

and creating

behavior,
Law

empowers

normative

to construct

groups

powerful

orders

over resources

of meaning.

categories

that enhance

and people,

their control
to

but also provides

lessprivileged people avenues forprotest and

resistance (Hirsch & Lazarus-Black 1994).
Human

law also has

rights

im

this two-sided

pact, buttressingneoliberal political and eco

nomic

some

but providing

regimes

recourse

for the powerless.

Legal anthropologists show how law

makes persons and things (Pottage 2004,
Pottage & Mundy 2004). Human rights law
defines

in terms of autonomy,

persons

choice,

and bodily integrity,in contrastwith other

systemsof law that focus on obligation and
exchange. Strathern (2004) describes a situa
tion in Papua New Guinea, for example, in
a young

which

woman

was

to be
given

slated

to another familyto repay a tribaldebt.The

national

human

the exchange
her human

rights commission
prevented
on the
that it violated
grounds

rights,

even

saw

she herself

though

the exchange as an obligation she should fulfill

saw herself

in terms of her
relationships.
are now
Anthropologists
analyzing human
as social
In contrast with ear
practice.
rights
and

lierwork that debated the ethical and the

oretical

of universal

advantages

moral

prin

ciples or relativisticones (An-Na'im 1992,

Nagengast & Turner 1997,Zechenter 1997;
but

see Cowan

Messer
rights

as a social

knowledge,
human
and

et al. 2001,

Dembour

2006,

1993), this laterwork examineshuman

process

and

rights

ideas

by whom,

how

champion
tors who

and
claim

of producing

and

them

are made

doctrines

various

implement

norms,

It asks where

compliance.

groups

them,

think about

seek

and how
these

to
ac

rights.

and

relativism.

Scholarship on the practice of human

rights asks how human rights ideas and in
stitutions

a difference

make

in

ev

people's

eryday lives and explores how they become

locallymeaningful (seeWilson 1996; Cowan
et al. 2001; Goodale 2006; Goodale & Merry
2007;Merry 2006a,b). Ethnographic work on
rights

explores

rights

consciousness

and

asks

when andwhy individuals choose tomobilize

rights (seeMerry & Stern 2005). One study
of disabled

for example,

Americans,

their reluctance

to assert

disability

shows

rights

even

when laws exist to define those rights (Engel

& Munger 2003). In the field of indigenous
rights,a growing body of scholarship exam
ines the way

customary

forms of justice

interact with

groups

indigenous

among

international

human rights law (Sierra 1995, Speed &

Collier 2000).
Some
research
the
ethnographic
explores
of state retreat and
phenomenon
legal fail
ure: of
In some
law is absent.
places where
of these places,
law may move
international
in to replace

failing domestic

con

law. Ethnic

flict and violence arefrequentmarkers of this

situation,
more

and

hazardous

some

argue

that weak

for human

rights

states are
than

are

strong states (Ignatieff2001).Work on vio

lence, suffering,and lynchingprovides some
insightinto theeffectsofweak states (Das et al.
1998). In Bolivia, for example,Goldstein an

alyzes

the expansion
of collective
community
as a response
to the failure of state

lynching

police and courts (Goldstein 2003, p. 2004).

He attributesthewithdrawal of the statefrom
providing justice to neoliberal structuralre
form and its ideologies of privatization and

devolution

so that

security

becomes

the re

sponsibilityof citizens (2005, p. 395).

www.annualreviews.org Anthropologyand InternationalLaw

iop

INTERNATIONAL TRIBUNALS
AND TRANSITIONAL JUSTICE
resent

of various

tribunals

International

form of global

another

have

anthropologists

kinds

rep
also
work,

important

such as challenging the concepts of justice

and

reconciliation

that

shape

the

such

as war

tribunals.

International criminal tribunalshold leaders

for offenses

accountable
genocide,
as rape or

or abuses
sexual

connected

property
tries are at least

two centuries

that hold war

courts

national

criminal

violators

to account

but

old,

inter
crimes

theNuremberg

date from

trials after
World War

II (Bederman 2001,
tribunals
have been set up
p. 45). Special
the

for Rwanda,

and East

Leone,

former
Timor,

Yugoslavia,

Sierra

with

under

others

discussion. In 2002, the InternationalCrim

came

inal Court

crimes

crimes,

into

existence

against

to

try war

and

humanity,

geno

cide. Another form of international tribunal

is the

truth

which

commission,

uses

truth

telling and the search for forgiveness to heal

shattered

societies

by armed

conflict

and eth

nic division.Wilson's (2000, 2001) study of

the South AfricanTruth and Reconciliation
Commission (TRC) shows how itsmessage
of redemption and reconciliation satisfied
some

but

not

who

others,

street

preferred

level popular justice and punishment for

wrongdoing.

a criminal justice approach is

Whether

more

effective

than

a reconciliation

model

is currentlya hotly debated issue.The former

is better at holding individuals accountable
but

can handle

only

a few cases, whereas

the

lattermay be better at healing social conflicts

but fails to punish perpetrators.Hybrid mod
els incorporate

some

aspects

of both models.

Another difficultissue for transitional justice

iswhether itshould bemanaged by an interna
tional body or by the leaders of thenation ex
periencing
If the same

ethnic
leaders

conflict
are

or state

in power,

repression.
a
nationally

based tribunal is problematic. Another issue

no

Merry

of the conflict.The proponents of the South

AfricanTRC saw it as the chance to tell the
Wilson (2005b) argues that
storyof apartheid.
theongoing trialofMilosevic by the Interna
tional Criminal Court forYugoslavia is sim
ilarlyproducing a relativelyobjective history
of the era, but that this is only possible be
cause

the

is internationally

tribunal

created

and managed.
careful

Clearly,

coun

between

disputes

such

to settle

slavery. Tribunals

and financial

crimes,

with war,

or

sponsible

law. Here

done

re
individuals
the goal is to hold
a national
to
narrative
produce

is whether

such

studies

tribunals?including

on

work

ethnographic

as

such

Coxshall's (2005), which explores the rea

sons victims

not

choose

(2001), which
for

preference

to

testify,

than

rather

punishment
in

essential

forgiveness?is

orWilson's

shows some communities'

understanding

how these tribunalsoperate and challenging

research

thropological
that will

edge

An
postconflict
healing.
can contribute
knowl

about

assumptions

address

the rel

about

questions

ativemerits of criminal trials,with theirdelay

and expense and smalldefendant rolls, and the

more

and amnesty-focused
open, conciliatory,
In
of truth commissions.
proceedings
general,
as Jean-Klein
& Riles
(2005)
argue, anthro
to contribute

has much

pology

ing human

to understand

rights practices.

CONCLUSIONS
New global legal institutionsfor peacekeep
ing and

collective

humanitarian

international

recently

commercial

security,

law, human

rights

criminal

law,

law, and more

law are gradu

ally emerging (Kingsbury 2003). Law's inter

is a product
of transnational
as colonialism,
contem

nationalization
movements

transnational

porary
of

such

a new

tracts
verse

world

and

order

the

creation
con

of negotiated

di
together
linking
of human
the expansion
rights

agreements

states,

activism

activism,

and

institutions,

and

the transplant

ing of legal institutionsthemselves.The

lationship
tems and

between
nation-state

weak

international
law

remains

re

sys
deeply

however.

ambiguous,

new

These

institutions

laws,

and

procedures,

from

practices

previ

to

contribute

the creation

of ideas

new legal order but are also deeply con

strained in their authorityby the system of
that underlies

sovereignty

rich and poor

among

aid programs,

organizations,

and

NGO

law operates,

Gov

and

U.N.

of law, its principles,

such

internationalization

of law and

social

science

nations.

inGeneva,

a local office

on this
system
scholarship
and its practices,
anthro

pology is particularlywell equipped to pro

vide insight into the individuals, the issues,

as

global feminismhave all contributed to this

mations

whether

activism,

social movements

the circulation
mapping
as well as
examining

and procedures

of a human rightsNGO, or the International

Criminal Court. Despite the significantlegal

endeavors and inevitablyreflectstheglobal in

equalities
ernment

of these

the arrayof small sites inwhich international

transnational

all

in practice,

law works

of

and novelty

research plays
anthropological
in
how international
examining

developments,
a critical role

ously existing national and local systems of

law. They

the ambiguity

Given

incorporate in fluid and complicated ways

the transfor

the practices,

and

tute international

it evokes.

the
meanings
law as a social

that consti
process.

ACKNOWLEDGMENTS
My work in this area has benefitedfrom a fellowship at theAmerican Bar Foundation and
a fellowshipyear at theCarr Center forHuman Rights Policy atHarvard. My research on
internationalhuman rightshas been generously supported by the Law and Social Sciences
and Cultural Anthropology programs of theNational Science Foundation and by aMellon
Fellowship fromWellesley College.

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