Treaty bodies and beyond: the practice and process of translating international norms into domestic law.

Position:International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law - Discussion

This panel was convened at 10:45 a.m., Saturday, March 27, by its moderator, Celia Goldman of the International Monetary Fund Administrative Tribunal, who introduced the panelists: Navraj Ghaleigh of the University of Edinburgh; Susan Deller Ross of Georgetown University Law Center's International Women's Human Rights Clinic; Ruth Wedgwood of Johns Hopkins University's School of Advanced International Studies (SAIS), and the UN Human Rights Committee; and Arnold Zack of the Asian Development Bank Administrative Tribunal. *

* Susan Deller Ross and Ruth Wedgwood did not submit remarks for the Proceedings.


Harold Koh has postulated a

transsubstantive process whereby states and other transnational private actors use the blend of domestic and international legal process to internalize international legal norms into domestic law.... [K]ey agents in promoting this process of internalization include transnational norm entrepreneurs, governmental norm sponsors, transnational issue networks, and interpretive communities.[] In this story, one of these agents triggers an interaction at the international level, works together with other agents of internalization to force an interpretation of the international legal norm in an interpretive forum, and then continues to work with those agents to persuade a resisting nation-state to internalize that interpretation into domestic law. Through repeated cycles of "interaction-interpretation-internalization," particular readings of applicable global norms are eventually domesticated into states' internal legal systems. (1) Our panel today asks the question of how treaty bodies and international organizations translate international norms across legal and cultural boundaries. The panel will examine the roles of--and dialogue among--experts, stakeholders, and governments in shaping domestic law through international standard-setting and complaint-resolution processes in human rights, climate change, and labor relations.

We have with us four distinguished panelists to discuss these issues.

First, Ruth Wedgwood is the Edward Burling Professor of International Law and Diplomacy and Director of the International Law and Organizations Program at the Paul Nitze School of Advanced International Studies at Johns Hopkins University. Professor Wedgwood is well-known to many of you for having distinguished herself in multiple areas of international law. She is a former Vice President of this Society, serves as a member of the Secretary of State's Advisory Committee for International Law and has been an independent expert for the ICTY. She is a former professor at Yale Law School, and before that a federal prosecutor in the New York. Today she will be wearing her hat as member of the UN Human Rights Committee and will offer her insights from the perspective of a treaty body member.

Second, Susan Deller Ross is Professor of Law at the Georgetown University Law Center, where she directs the International Women's Human Rights Clinic. Professor Ross is the author of Women's Human Rights: The International and Comparative Law Casebook. Before joining the faculty at Georgetown, she served as Special Litigation Counsel to the Civil Rights Division of the U.S. Justice Department and an attorney with the U.S. Equal Employment Opportunity Commission. She is also well-known for her academic work in sex discrimination law in the United States. Professor Ross will share with us insights from the clinical work she directs in Africa, in which treaty compliance has formed the basis for both legislative reform and test-case litigation in women's human rights.

Third, Navraj Singh Ghaleigh is Lecturer in Public Law at the University of Edinburgh. Formerly, Mr. Ghaleigh was a barrister in London and Lecturer at King's College London. He undertook his graduate work at the University of Cambridge, the European University Institute (Florence), and the University of California at Berkeley as a Fulbright scholar. He will speak about his work in the European Union on legal responses to climate change involving international, regional, and national bodies.

Fourth, Arnold Zack, currently serves as President of the Asian Development Bank Administrative Tribunal. Judge Zack is a well-known labor arbitrator and mediator. He is affiliated with Harvard Law School' s Labor and Worklife Program, where he is a Lecturer on Designing and Managing Dispute Resolution Systems. He is the author of 12 books on union management issues, internationally and in the United States. Judge Zack will speak to us this morning about the International Labor Organization's role in labor standards compliance and dispute resolution through arbitration.

([dagger]) Of the International Monetary Fund Administrative Tribunal.

(1) Harold Hongju Koh, Is There a "New" New Haven School of International Law?, 32 YALE J. INT'L L. 559, 567-68 (2007) (emphasis added).


The process of internalizing international norms into domestic law is a matter of contention in all polities, to varying degrees of intensity. Harold Koh's provocative thesis of transnational norm generation--of nation-state and transnational private actors blending national and international legal processes such that international norms are internalized into domestic law--is considerably less provocative in the European Union than in its country of origin. Whereas public international law can elsewhere be seen principally as a constraint on independent action, the European Union has frequently deployed it as an instrument for the advancement of European integration. As such, the process of "translation" is less a matter of hypothetical speculation in the European Union than a known mode of legal and political activity. Commencing with some brief stage-setting, this short paper will analyze two separate bodies of international legal norms--those pertaining to anthropogenic climate change, and business and human rights--and argues that in the EU context at least, "translation" is best seen as one part of a highly iterative process of dynamic relations between levels.

The broad receptiveness (1) of the European Union to translating international legal norms into domestic ones derives in part from the fact that the European Union is itself a creation of public international law. Its foundational milestones are marked by international treaties which "member states have drawn up in order to create and define the tools of their European co-operation ... international law has provided, from the start and until now, the legal instruments needed for the overall organisation of European integration." (2) These treaties (of Rome, Maastricht, Lisbon, and so on) serve to advance a variety of internal development needs of the European Union, but they also drive its external influence--"[the] EU actively seeks to export a particular set of internal legal rules to third countries by means of a bilateral or multilateral agreement, thereby 'projecting the acquis."' (3) In this respect, the European Union adopts the role of what Koh would recognize as a "governmental norm sponsor," commonly in concert with civil society "norm entrepreneurs."...

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