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Anthropologist Sally Engle Merry describes the development of international human rights law over the past several centuries.
 

Anthropologist Sally Engle Merry describes the evolution of the language of international human rights law. Rather than view the development of human rights law as a recent phenomenon, Merry provides a brief outline of the development of international human rights law over the past three-hundred-fifty years.

From this perspective, recent international human rights law is a development and expansion previous international law and practice.

Relations between Sovereign States

The treaty of Westphalia (1648), following the Thirty Years War, is the foundation for international law.

International law during this period was was founded on the notion of state sovereignty. So, international law consisted, for the most part, of treaties and agreements among European states.

However, formal treaties were not the only basis for international legal norms. As transnational relations became more established, less formal international norms such as conventions (general principles of law recognized by states) became more important. Conventions became more firmly and broadly assumed. Even nations that were not part of formal treaties began to accept international legal conventions.

Custom and treaties became “co-equal sources” of international law.

Why would states that are not parties to a formal treaty comply with international legal customs? There are several informal bases for conformity:

  • The expectation of reciprocity among states,
  • The desire for membership in the international community,
  • The wish to appear “civilized,”
  • Pressure from other countries for trade agreements.

Even though these bases for conformity are less formal than other types of transnational law, they may be just as effective.

Colonialism

The period of European colonization was an important phase in the further development of international law. The nature of transnational law was influenced by exposure to local situations foreign to the “civilized” world.

International was law applied not just to relationships among European states, but was also applied to indigenous peoples. For example, the Spanish applied international law to native Americans by arguing that Europeans had the “right” to defend themselves against the Indians.

The application and adaptation of colonial law within the local contexts of indigenous peoples created a new level of legal pluralism. For instance, the British carved out law governing family and marriage from other civil law in order to keep family law within the context of indigenous religions. This lessened the likelihood of resistance from indigenous peoples against the imposition of British law. It also added a new level of legal complexity.

In short, international law was both expanded and made more complex during the colonial period.

From States to Individuals

The Nuremberg trials, following World War II, were a watershed event in the development of international law. For the first time, it was acknowledged that individuals, and not just states, had rights in international law. Since then, there has been a growing body of documents and institutions concerned with human rights in international law.

However, the notion of individual rights was still built on the structure of treaties among sovereign states. States had to ratify the conventions, and only states that ratified them were bound by them. Even so, the international norms governing human rights have been broadly ratified.

Cold War: Development along Two Tracks

International human rights law has not developed seamlessly. Indeed, the definition of exactly which human rights individuals had was highly debated during the Cold War.

Although the Universal Declaration of Human Rights (1948) included both civil/political rights and social/economic rights, it was politically impossible during the Cold War to produce a convention with both sets of rights. So, there was a “two track” development of human rights law during the Cold War:

  • Western human rights law focused on political and civil rights (such as the right to free speech and religion),
  • Socialist and Communist countries focused on economic and social rights (for instance, food, housing and the right to work).

From Individuals to Communities

The perspective on human rights advocated by communist and socialist countries did not disappear with the fall of communism and the current process of globalization. The language of human rights that developed within the context of communism has taken on a different face within recent developments of international law.

Rather than being manifest as the difference between Western democracy versus Communism, recent differences in the definitions of human rights tend to move along a developing nation versus advanced economies split. Developing countries tend to assert economic and social rights while advanced economies continue to emphasize political and civil rights along with a more recent emphasis on individual property rights that cross state boundaries.

However, this split in emphases in international human rights law has become less pronounced in recent decades. This is evident in the development of international human rights with a more collective focus (for example, the recent development of the rights of indigenous peoples). Several features of this development are important within an international human rights context.

  • The language of international human rights shifted from an either/or political discourse to a more unified language of global justice,
  • The focus changed from states to individuals then to communities. Movements supporting the rights of indigenous peoples were not primarily efforts for independence or statehood, but sought to protect distinct cultural communities. This struggle was largely carried out in legal arguments to protect rights rather than using other forms of political action (e.g., violence).
  • There began a change in focus from economic development (located largely in property rights) to poverty alleviation. Poverty came to be a political issue. Poverty was no longer conceived as the unfortunate byproduct of economic globalization, but as a problem of global justice that demanded change.
  • Pressure for change began to originate from the poor and discontented rather than from states adhering to contrary Cold War ideologies,
  • The combination of human rights focused on individuals, communities and economic relations has added layers of law on top of those created during the colonial period.

Bottom Line

Recent developments in international human rights law have redefined and expanded the scope of earlier international law. International human rights law has also developed a dominant language of global justice that cuts across cleavages dominant during the Cold War. But, for all these developments, international human rights law has not become simpler. Rather, says Merry, international human rights law has become more complex.

 
Data and Methods:

Data Sources:

Review of research.

Funding Sources:

  • The American Bar Foundation,
  • The Carr Center for Human Rights Policy at Harvard,
  • Law and Social Sciences and Cultural Anthropology programs of the National Science Foundation,
  • Mellon Fellowship from Wellesley College.
 
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Reference

Merry, Sally Engle. 2006. "Anthropology and International Law." Annual Review of Anthropology 35:99–116.

 
 
 
 
 
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