 So let me begin by saying it's a great pleasure to be here. This is my third visit. You may or may not know that it's actually a long way on an airplane. So you can tell I really like coming here to become a human pretzel for 24 hours. But this time, I actually got to do some more traveling around Australia. And I am just very enamored of this country. The talk I'm going to give today is part of a larger project that I'm working on that looks at the relationship between forms of measurement or quantification and governance. So I've been studying indicators, but that's an example really of a much broader movement towards various kinds of evidence-based governance. And I think it's only appropriate that I'm giving this talk at Redknit, where John Braceway has been so central in getting us to think about new forms of regulatory structures. So I'm looking forward to your comments and responses. I am giving an anthropological analysis about how quantification works so that it's not that anthropological dimension as well. This paper that I have a 38-page paper, I know this is a terrible thought. But the talk I'm going to give, which will not involve having all 38 pages read to you, is part of a project that Greg Schaefer and Terry Halliday are developing on transnational legal orders. And I know Terry comes here. You may have heard about this project. Their project is an effort to understand how the transnational legal ordering system works. And so my paper really addresses that question by asking how soft law works and what it means to use quantitative measurements for soft law. And the argument I'm going to make is that this use of quantification in some ways firms up soft law, makes it more like hard law, but at the same time changes the nature of the discourse in ways that are more like other kinds of language in the field of development planning and financial management. So that's the sort of quick summary. And as you can see, if you've glanced at the handouts even before I told you to. I'm using a couple of cases to talk about that. So I'll read you a few paragraphs here. The human rights legal order is famously lacking in clear sanctioning power, yet it exerts considerable soft power in a variety of ways. The use of indicators, quantitative measures of performance, tends to hard and soft law in transnational contexts. In the human rights legal order, recourse to indicators helps to define legal obligations more clearly and to specify the terms of compliance. Thus, they serve to harden human rights law. My question today is, what does this mean for the way human rights are understood and for their role in promoting global justice? Here I explore the implications of translating soft law norms on human rights into quantitative indicators. I argued that the translation into indicators clarifies and specifies obligations, as we will see, does enhancing accountability. But at the same time, this shifts human rights from a legal discourse, which has a broad and flexible vision of justice, things like everyone has the right to food, everybody has the right to affordable housing. It changes from that level of discourse and presentation to a technocratic and rational mode of presentation that's based on the language of economics and management. Consequently, the use of indicators enhances collaboration between human rights law and development planning, but not between human rights law and the kinds of discourses that social movements use that talk about human rights activism. So it shifts human rights into one domain, which may well increase accountability and enforcement. On the other hand, distances human rights from the domain of social movements that mobilize these broad and flexible visions of social justice. I'm going to assume that you all understand what soft law is. This is particularly prevalent in the field of human rights, where human rights conventions are buttressed by a whole range of special rapporteur reports, guidelines, agreed conclusions, declarations, statements of standards which have no legally binding force. Even human rights conventions, which are technically legally binding, have a pretty limited enforcement system. So this is a world of normative articulations that are not really embedded in some kind of hard law institutional structure. Of course, what soft law is, is itself kind of a soft and vague category. And it includes its best thought of as a continuum, rather than a dichotomy. Some forms of law are harder than others. But my argument is that the use of quantitative measurements to articulate the meanings of these soft law principles makes them more concrete, makes them more specific, and thus may well facilitate compliance. For example, if you talk about the right to health and you measure it by indicators such as the percentage of children under five that have been vaccinated, you have a much more concrete way of thinking about what the right to health might mean. Statistical data of this kind offers a way of specifying and making human rights more concrete. On the other hand, it also focuses on what can be counted and ignores what can't be counted and may well change the way human rights law is articulated. There's a great deal of ambivalence within the human rights community about the turn to this kind of indicator, this kind of quantitative measurement. I have a definition of indicators, which I will read a little bit of, which comes from an article that Benedict Kingsbury, Kevin Davis and I published in the Law and Society Review, which gives an overview of what we mean by indicators and their role in governance. In this paper, we define an indicator as a named collection of rank order data that purports to represent, you can tell this was literally written, represent the past or projected performance of different units. The data are generated through a process that simplifies raw data about a complex social phenomenon. The data in the simplified and processed form are capable of being used to compare particular units of analysis, such as countries or institutions or corporations, synchronically or over time, and to evaluate their performance by reference to one or more standards. And you probably have seen things like the Human Development Index or the Transparency International Index, which are kind of widely used indicators. But what I'm talking about is actually a more basic use of various kinds of quantitative measurements to assess compliance with a set of standards. So this is an example of gonna illustrate this process with two different cases, one of which was an effort by the Office for High Commissioner of Human Rights to develop a mechanism of indicators for human rights. There are 12 human rights they developed, plus two cross-cutting rights, and you have a sample in your handout of one of these. And the second is the US State Department's Trafficking in Persons Report, which, we'll talk about these in a little bit more detail, which estimates the compliance of the countries around the world with a set of minimum standards for dealing with trafficking, that the US government has established. The Trafficking in Persons Initiative began in 2000. This initiative, the Human Rights Project, started in 2005, and the guidelines have just been published. Now I'm arguing that we can see this process of using indicators for soft law standards as an example of what Halliday and Schaefer call normative settling. And normative settling, they refer to norms that have institutionalized support. And it seems to me that this is another example of making the norms more concrete and specific. By attaching quantitative measurements to norms, you increase their scientific legitimacy, their apparent objectivity, their apparent clarity of what they mean at the use of the word apparent, I suggest that I'm a little skeptical about this. And it makes it look like you have a more established form of norms, which then become more taken for granted and more widely accepted. One aspect of normative settling, as they talk about this frame, is that the norms move from one domain to another. So norms that are settled makes this not only in the legal field, but also in the field of economics or crime control or financial management. So the capacity to take these legal norms and convert them into other kinds of disciplines and discourses increases normative settling. So I'm arguing that these quantitative measurements that we're gonna talk about in a second facilitate that normative settling both by making them specific and concrete and by converting them into language that is understandable in other disciplines as well as the law. And I have a little paragraph here about the role of translation because this is fundamentally a process of translation. So do you wanna get half of my paragraph. So what the process of developing indicators for these rules does is translate them into other terms, which then make them measurable. And so we're gonna look at the process of translation in these two examples. The first one, the first example is the OHCHR Office of the High Commission of Human Rights effort to construct indicators for 12 human rights. They started this in 2005. This was a move within the human rights field to find ways to make poor human rights more understandable. And they selected rights from the UD, the Universal Declaration of Human Rights. They deliberately chose half social and economic cultural rights, the other half civil political rights. So if you look at the grid sheet I passed out, one side has the right to health and the other side has a civil political right. And the idea was to produce a single sheet like this for every single right for all these 12 rights, which would then help the treaty bodies, the committees that are supposed to enforce the terms of the human rights treaties to be more specific and concrete about what it is they are producing. The core group behind this initiative were Northern European human rights lawyers. They held a series of six meetings in Geneva from 2005 to 2009 as they developed the grids. But the people who actually did the work were a development economist and a statistician. And I think that what I'm gonna argue is that you can see that what they produced has a lot to do with the modes of thinking of development economics. But they basically translated the human rights language into the language of development economics. The final report that came out in 2012 has some interesting statements about how human rights is really hard for people in other fields to understand. And so the goal of this initiative is to try to make the human rights language more comprehensible to other fields. They say it will facilitate the implementation and attainment of the objectives associated with the realization of human rights that, and here's another quote, policy makers, development, and sometimes even human rights practitioners find it difficult to link these concepts with implementation practices. And other points they say, this is a hard system to understand the human rights system. So they wanna make it visible and comprehensible to the human rights, to the development field. This is part of a bigger move to come up with a human rights-focused development agenda to put these two together, to do what Marty Cuscomini calls mainstreaming human rights, which, on the one hand, may make human rights more widely used. On the other hand, for those of us who are concerned about the effects of, say, mainstreaming gender, that also deludes them. It means that human rights then becomes an aspect. This is Cuscomini's critique, an aspect of policy-making rather than a trump card that says, this is a bad thing, you can't do it because it's a human rights violation. So this whole initiative is a way of moving towards a mainstreaming of human rights. There are three ways that this project joins the human rights frame to the development planning and the financial management plan. And I'm gonna talk about each one of them in a little bit briefly. One is the use of a new template of dividing these human rights into the categories of structure, process, and outcome. The second is that one-page grid, and the third is the use of development measures. So let me present the first one. Since the 1980s, human rights theorists have talked about dividing human rights in terms of the categories of respect, protect, and fulfill. So in talking about state obligations, the state has the obligation to respect its members' human rights, to protect them from violation by other actors, and to fulfill these human rights obligations. So this was the existing framework. What has happened in the last, say, 10 or 15 years in the human rights field has been a shift to a different framework, which you'll see on this grid, which is that of structure, process, and outcome. So the structure, process, outcome framework, which comes from public health and to some extent from financial management, says if you have a certain series of structures, which in this case consists of laws passed and state policies, and you then engage in a certain set of processes, which are mostly government programs, you will then achieve certain outcomes. And if you look at the right to health chart for a moment, you'll see that structures include things like, have you ratified the human rights convention on the right to health, and do you have government policies? These are not the most accessible documents, these are. You like the grid? I'll get to the grid in a minute. So structural is sort of the preconditions that you as a country have to follow. Process is a series of government strategies. Those with asterisks are MDG goals, the Millennium Development Goals, this is the development program, but she will talk about in a minute. And then the outcome is theoretically what you want to achieve, so that under sectional reproductive health, the outcome is proportionate of live births with low birth weight, you want that low, perinatal mortality rate, maternal mortality ratio, so these are the kind of ultimate measures. Now the problem is that it's often hard to get this outcome data, countries these are expensive to gather, you may or may not have them, but it's much easier to measure the process data. So instead of coming up with the outcome figures, it's often, there's often a tendency to use the process data. For example, if you want to know how much knowledge there is of human rights in the community, it's a lot easier to measure how many training programs were held than it is to measure how much human rights consciousness there is in a country. And so the focus on process here means that you're actually measuring government effort, you're not measuring actual accomplishments. Now, what's interesting about this particular approach, the structure process and outcome, is that it has embedded within it a certain theory of social change. It says that if you follow the structure and you engage in these processes, you will then get this outcome. So it kind of maps out how you go about making a human right happen. And by doing so, there's sort of this progressive developmental narrative, which means it's actually building on the same mode of thinking that development planning has. And yet, you can follow all these processes and not get this outcome. There's no clear cause and effect between the processes and the outcomes. And in fact, most of the outcomes have multiple causes and most of the processes have multiple effects. But this kind of a grid chart suggests a fairly sharp, clear relationship between process and outcome. And it also tells countries if you engage in these processes, you will get these outcomes. And finally, it assumes that the changes are going to be the result of state activity, that people live in advanced industrialized states that have the resources to invest in these kinds of processes. And it converts these kind of vague standards about the right to the highest attainable standard of physical mental health, who knows what that is, into these very concrete kind of technocratic measurements. What is lost? Well, some notion about the systemic overarching structure of the health situation of a country, forms of inequality that may be related to things like capitalism or development. It has in a way a simplification effect that makes it both countable and comprehensible as a single kind of series of stages. Those of you who remember modernization theory, you'll see this is the kind of framework that if you just follow these steps, you'll get there. So I think this is one way that this template, which really structures knowledge, conveys a particular theory of how social change happens and converts it into more development planning. The second feature is the single page grid, which is actually reminiscent of development planning. There's an anthropologist named Richard Rotenberg who's looked at the German development project. It says where they call this a log frame, the one page executive summary of a development action plan, which says if you do this, this will happen and this will happen, often with some kind of a timeline. One of the bizarre things about the single page, I went to one of these expert group meetings and there was clearly a sense that this is hard document to make sense of. Have any of you sat and read through it carefully? I mean, is it inviting? The print is too small. It's not very accessible. And some people said maybe we need to have more than one page per right and they insisted one page per right. It has to be on a single grid with these various domains across the top and the structure process outcome down the side. And I think this has to do with the use of this template from development planning of the action plan where you can put it all on a grid and it looks clear and scientific and easily understandable. So the third feature of this that I think comes from development planning is the notion that we are looking at measurable phenomenon, things that you can count. And if you look at these things, they are often countable. Proportion of children covered under public nutrition supplement programs. CO2 emissions per capita. Proportion of targeted population was extended access to food drinking waters. So some of these are familiar from the MDGs. Some of these measurement things are really, see if I can find my favorite example, really strange like under sexual reproductive health. This is the last one. Proportion of reported cases of genital mutilation, rape or and other violence restricting women's sexual and reproductive freedom responded to effectively by the government. Is that data easy to come by? It looks like we can just count it and then we'll know. And so by putting everything in this kind of quantitative mode, it looks like there's more capacity to measure things that really exists. So these are ways that I think in fact, this approach to human rights normative settling is actually expanding the disciplines that can read and understand human rights. And thus perhaps increasing normative settling, but at the cost of reformulating this away from a kind of legalistic mode to something that's much more widespread as a developmental policy process. And therefore, I guess the proponents of this say it builds on tools and classifications that are already widely used in the development policy context and are likely to be more familiar to policy makers and implementers, human rights and development practitioners who are part of the target audiences for this work. They go on to say, in fact, the use of structural process and outcome indicators and promoting and monitoring implementation of human rights helps in operationalizing and perhaps also demystifying the notion of human rights among those who are not familiar with the human rights discourse but are expected to mainstream rights in their work. The proposed configuration helps in extending the reach of the human rights discourse beyond the confines of legal and justice sector discussions. So that's the agenda. And what you see what it does is it converts this broad justice language into technocratic measurement structures with an underlying development modernization model about how societies should work and the role of the state, assuming, of course, the actual effective state is able to make these kinds of changes. Let's see. As a tool for monitoring state compliance with human rights treaty obligations, this approach makes sense. Yet the demands of measurement and availability of data restrict the theoretical model of social change and benefit of the table to a developmental one. Rather than addressing forms of inequality produced by racism, urban real difference, patriarchal kinship systems, dependent on international investment or social norms on gender, the tables articulate a model of social change in which increasing state services to the population at large would benefit the entire population. And my argument is that the way you structure knowledge on these kinds of templates affects the way knowledge is done produced and understood. So my second example is the US State Department trafficking and persons law, which was passed in 2000 as part of an amendment to the Violence Against Women Act. And I started to look it up as I was preparing for this talk and I noticed on the internet that it's called the TVPA Trafficking Victims Protective Act had actually languished and was no longer effective. This was somewhat distressing, but it turns out that it's because it was attached to the Violence Against Women Act, which has been fought over in Congress for the last 11 months and had a laxed, but it was reauthorized on February 28th a couple of weeks ago. The fight was over domestic violence services to LGBT couples and whether or not women in tribal communities who are raped by non-tribal men should, whether the tribal community should have jurisdiction over those men who are raping tribal women, because if the tribe didn't have jurisdiction over them, then they have impunity because the state courts don't have jurisdiction either. How the Congress could have fought over this particular provision for so long, I don't know, but they find that while I do now, we have a crazy government, as you probably know. So in any case, this mechanism was developed by the U.S. to encourage governments to control the trafficking of persons initially to the U.S. And it was actually kind of a left project to see if you couldn't get governments to do better work against trafficking. Although it's called sex trafficking and it focuses on sex trafficking, there has been a move in the last five or six years to have it focus more on later trafficking. The U.S. government set out a series of standards and government efforts that are evaluated by embassies gathering data, which then gets in fact to Washington that ranks all these countries according to how energetic their efforts are to control trafficking. The standards of effort are set by the U.S. They talk about prosecution, protection, prevention, and now we've added participation, whatever that means. But the real focus of this report is looking at the extent to which countries have engaged in prosecuting, convicting and giving heavy sentences to traffickers. Of course, one of the dilemmas of doing this is that you need the so-called victims to testify against the traffickers. And so the, what tends to happen is that when there are brokerage and particularly in the case of women being rescued, but in general when the trafficked victims are rescued, they are often held in various kinds of shelter homes in more or less carceral environments so that they can testify against the traffickers whenever they get found. So there is a tension between the benefit to the victim, a few of whom are actually given visas or permission to stay in the country and prosecuting the perpetrators of the trafficking. And of course, what exactly trafficking is is a very murky problem, whether somebody moving with a friend is being trafficked, whether a lot of the trafficking cases in the U.S. are diplomats who bring domestic servants with them from their home country. So there's a lot of actually murkiness around the whole field of trafficking and prosecution. But what this report does is focus on counting the number of prosecutions, convictions, and sentences as the basis for ranking countries in their compliance. And if a country either makes no effort to comply or fails to provide data, they will be ranked lower. This is a three-tier system. You'll see there's it. I passed out to you a sheet which this has been a 2010 report. This shows you the tier placements of all the countries in the world that have been ranked. Here is an example of a pretty little map, which is in the report. Again, I only have the 2010 report. Did any of you check where Australia is? Isn't it nice? Australia and New Zealand are both in tier one, but we have some bad countries nearby in tier three. So the tier one are the ones that are doing the best. Tier two is, right, so there are three ranks. Tier three actually looks a little bit like the U.S. enemies will see who's the real Cuba, you know. A country is not doing much, but they are a security necessity to the U.S., like Chad, well, they don't get into tier three. So this is a carrot and a stick thing, that if you are in tier three, you lose U.S. aid, you get the U.S. to say bad things about you, to the World Bank and other things, so it apparently negatively affects your status globally in terms of financial assistance. We had three tiers. There was a decision in 2004 to add a tier two watch list. So if a country's doing badly, they get put on the watch list and if they're there for two years, then they fall into tier three. I was, I had a student working on trafficking in India and I was there the second year that India was on the tier two watch list and I was just waiting to see if the U.S. was actually gonna put India in tier three, which it didn't, it made it into tier two. But Saudi Arabia, I believe, was in tier three. They used to be listed as tier one countries, tier two countries, tier two watch list and tier three. It's interesting that we now have this chart which a little bit diminishes the effect of this tier system because it's ranking the countries and you have to look down to see what the rank is. But then we have these lovely brightly colored maps which are the typical indicator model, which are easily read and there's one region. So you can see, again, which who are the good and who are the bad countries. So the point I wanna make about this mechanism is that there are many ways to think about what intervening in trafficking might involve and what you could do, but this particular approach foregrounds numbers of prosecutions. And so it is a way of making concrete and specific the kind of complex set of ways of dealing with trafficking. Now, obviously trafficking has to do with economic inequality. There are multiple ways of dealing with it from giving people visas to travel legally to providing economic support for poor communities, by job assistance. There are all sorts of different ways of intervening in the trafficking model, but this is a very clearly criminal justice model. And it's interesting that it builds on a very similar framework that was used for drug trafficking. So in the 1970s and 80s, the US started looking at countries that were producing drugs and sending them to the US and they were also being ranked according to their efforts to deal with drug trafficking and there were countries that were bad and countries that were good and they ranked about 35 countries and similarly impose sanctions against those who failed to do much of the way of drug trafficking. So here you see the existence of one model clearly in the criminal justice field that gets applied to a different framework, different problem, but uses the same template, the same form of knowledge. There is another alternative approach out there. There's increasing interest in the UN level in talking about the human rights of trafficked victims and there, these are people, there's a human right, there's a special rapporteur on trafficking in persons, especially women and children and she's put out a report on the human rights of trafficking victims that have been resolutions at the UN because there's a recognition that not only are trafficking victims sometimes, particularly in the case of women who have prostitutes seen as criminals in an effort to shift that understanding but also that by long-term incarceration while you wait to carry out the trial for the trafficker you may actually be violating the human rights of the victim. So here we see another effort to take the human rights problem of trafficking and convert it into now the language of criminal justice, criminology, sort of crime control and drug control which is one of the frameworks that trafficking is understood by in general and it becomes articulated and expressed in this report, its document, which I didn't read you the minimum standards but they talk about how you should engage in government efforts to control severe grave crimes with serious punishments that will really deter people's behavior. So again, we have an underlying theory about how trafficking should be managed which gets embedded in these indicator systems. So I think I have one paragraph, conclusion of it. So in these examples, I think show us how norm settling operates in some of the consequences of it. These mechanisms are firming up soft law all built on existing templates of measurement and knowledge production which are then adapted to new problems. The OHCHR indicators seem to come from development planning, the tips report that's trafficking and persons report from narcotics control. Thus, these indicators not only specify and clarify, they translate human rights concerns into other disciplinary languages. They make them accessible to other fields and facilitate dissemination and mainstreaming of human rights. But do they change human rights as a justice ideology and as law? A critical question raised by this analysis is whether human rights are more effective if they're expressed in vague and visionary terms as does for example, Paul Farrell who you've probably read, seen his widely read book on health and human rights or in the more fixed, measurable and technocratic terms which sort out and specify the necessary steps as we have seen in these examples. And I think this is a question that we might all ponder as the use of these kinds of technologies for forms of governance go forward. Thank you.