New voices: the role of international legal institutions in norm development.

Position:Proceedings of the One Hundred Second Annual Meeting of the American Society of International Law: The Politics of International Law - Discussion
 
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This panel was convened at 9:00 a.m., Thursday, April 10, by its moderators, Oona A. Hathaway of the Yale Law School (currently of the University of California, Berkeley School of Law), and Mark Drumbl of the Washington and Lee University School of Law, who introduced the panelists: Natasha Affolder, of the University of British Columbia Faculty of Law; Karen E. Bravo of Indiana University School of Law; Dwight Newman of the University of Saskatchewan College of Law; and Galit A. Sarfaty of Harvard Law School.

INTRODUCTION

By Oona A. Hathaway *

This New Voices panel on the role of international legal institutions in norm development offers four fine examples of the new direction of international legal scholarship. The diverse and wonderfully interesting papers illustrate two important trends in modern international law scholarship. First, they move beyond tired debates over whether international law can influence state behavior and instead examine when, how, and why the law sometimes does, and does not, influence what states do. Second, they shatter the traditional public law/private law divide that has characterized much of international law scholarship to date.

The papers engage in a clear-eyed examination of the role of international law in shaping state behavior. (1) All of them agree that, as Karen Bravo stated in her opening remarks, "international law alone is not enough." But they do not discard international law as useless. Rather, they seek to discover when and how international law can and does affect what states do.

Natasha Affolder argues that to be effective, environmental agreements must affect the behavior not simply of states, but of corporations as well--and she demonstrates how this might be done. Karen Bravo examines how modern human trafficking grows out of systemic forces and tensions within the global economy and within international law itself. Dwight Newman details the reasons that African states resisted joining the United Nations Declaration on the Rights of Indigenous Peoples--an inquiry that creates a foundation for understanding the complicated and ambivalent relationship between postcolonial African states and modern international law. And Galit Sarfaty shows how lawyers and economists within the World Bank perceive international human fights law--and how this in turn has influenced the Bank' s willingness to apply human rights standards. Newman's and Sarfaty's papers, moreover, rely on detailed and novel empirical documentation of the interaction between international law and foreign organizational cultures that have the power to make the promise of international law a reality.

The papers also lay waste to the artificial and unhelpful divide between public law and private law that has traditionally guided international law scholarship. Natasha Affolder shows that, to be effective, international environmental laws must influence the behavior of private corporate actors. Karen Bravo argues for modeling the international regulation of labor on the international regulation of trade. Dwight Newman shows that it is impossible to understand African states' response to the United Nations Declaration of the Rights of Indigenous Peoples without understanding that many secessionist movements are motivated as much by a desire to capture resources within a part of the state as by identity politics. And Galit Sarfaty persuasively argues that to become legitimate within the Word Bank, international human rights norms must be framed to appeal to the economists who drive the institution.

Together, these papers represent the best of the new wave of international legal scholarship. They offer much-needed insight into when, how, and why the law can work and how the international community might use all the tools available to it to create law that is legitimate and effective.

* Professor at University of California, Berkeley School of Law.

(1) All of the papers are consistent with a vision laid out in Oona A. Hathaway & Ariel Lavinbuk, Rationalism and Revisionism in International Law, 119 HARVARD LAW REVIEW 1404 (2006).

NEW VOICES INSPIRE NEW DIRECTIONS

By Mark A. Drumbl *

The participants in this New Voices panel inspire theoretical innovation. They contest orthodoxies and align new visions. Each of the papers is complex and nuanced while delivering precise and tangible arguments.

Dwight Newman analyzes African reticence regarding the international legalization of indigenous rights and, in this process, reminds us of the legacies of colonialism and the complexity of social policy in contemporary Africa. Newman approaches African states not as passive objects of international law, but as independent actors with active agency. His scholarship serves as a wonderful role-model for much-needed work in other areas of international law--whether commercial, human rights, or environmental--that recognizes the need for African voices to be heard not as disempowered critics but as empowered law-makers.

Galit Sarfaty's study of the World Bank is brilliant in its incorporation of ethnographic methodologies. Her work renders the potentials and limits of World Bank governance understandable. The interface of World Bank activity with human rights becomes more intelligible when mapped upon the background, training, goals, ambitions, and bureaucratic assessments of World Bank personnel. More generally, Sarfaty's work calls for a deeper integration of ethnographic and anthropological methods in the study of international institutions. Any such movement would do well to adhere to Sarfaty's methodological rigor.

Natasha Affolder's examination of the public/private divide in global environmental governance is path-breaking. Affolder underscores the relevance of the private amid the leitmotiv of traditional literature that revels in the law's fascination with the public. Affolder does not view the public and private as locked in a zero-sum competition. Rather, in her inspired vision, the two move synergistically towards what really matters, namely effective governance in complex matters of environmental sustainability.

Karen Bravo courageously challenges the influence of criminal law in matters of the trafficking of human beings. I say courageously because, as I have noted in my own work, international criminal law's successes have come at a price--this being a sense of premature completeness and closure once activity is criminalized and a handful of defendants are prosecuted and punished. (1) Deterring the trafficking of vulnerable individuals requires much more than the criminal law. To be successful, interventions should reach out to international trade law, which is precisely what Bravo calls for. Blending international economic regulation into the mix is predicated on the reconceptualization of trafficking not only as an exclusive matter of human rights deontology, but also as a matter of utilitarian economic exchange.

All four papers maturely explore the intersection between law and policy in the international order. Although they each draw from prior scholarship, they also point us toward new challenges while offering the inspiration of new methodologies.

* Class of 1975 Alumni Professor, Washington and Lee University, School of Law.

(1) Mark A. Drumbl, ATROCITY, PUNISHMENT, AND INTERNATIONAL LAW (2007).

IS INTERNATIONAL LAW AN EFFECTIVE ECO-LOBBYING TOOL?

By Natasha Affolder *

"Kyoto compliance" has entered the green lexicon as a signalling device for environmental responsibility and social legitimacy. Claims of Kyoto compliance are everywhere. But these claims are not only coming from states. Universities and colleges, for example, broadcast their Kyoto compliance. Corporations also make such claims. So do towns and cities. An online tool (www.personalkyoto.org) even allows New Yorkers to measure their own individual Kyoto compliance. Indeed, claims of Kyoto compliance by private actors are so commonplace now that international lawyers rarely pause to ask: when did we start measuring the treaty compliance of non-contracting parties? The mismatch between pervasive private claims of international treaty compliance and state-centric analysis of treaty effectiveness reveals a significant gap between how private entities perceive their role in treaty implementation and how legal scholars conceptualize the challenge of making treaties effective.

For multilateral environmental agreements to be effective, they must alter the behavior of actors other than states. Notably, they must alter the behavior of corporations--the ultimate regulatory target of many environmental treaties. Do environmental treaties change the behavior of non-contracting parties, particularly that of private firms?

THE INVISIBLE CORPORATION

I contrast the general invisibility of the corporation in theoretical accounts of treaty effectiveness with evidence of the reality of direct corporate interaction by extractive industry firms with one environmental treaty, the World Heritage Convention. I use security law filings, corporate annual reports, transactional documents, and other sources of public disclosure to unveil the multitude of ways in which mining, oil and gas companies claim that their investment behavior is impacted by this international treaty.

I chose to focus on the World Heritage Convention for two reasons: first, because this treaty is generally understudied, and no account of how corporate actors have interacted with this treaty exists; and second, due to the potential appeal of this treaty for corporations seeking to bolster their environmental credentials. The World Heritage Convention is well-regarded in the eyes of the public and offers the attraction of a brand label with which corporations are keen to associate. In many ways, World Heritage Sites are the "baby seals" of protected area law. The reputational value for corporations in being seen to protect these high profile sites may be greater than the value of...

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