Title: Identity, Effectiveness and Newness in Transjudicialism’s Coming of Age
Abstract: International lawyers look to enforcement as the answer to perennial debates on the perceived “ineffectiveness” of international law and its role in the progressive move to institutionalism. This has led to a focus upon binding dispute settlement and the tracing of a trajectory of formal institutional, even bureaucratic “legalization” as the dominant styles and modes of thinking about prescription for defining, interpreting, and promoting compliance. Recent scholarship attempting a rapprochement between the disciplines of international law (IL) and international relations (IR) has struggled with questions of compliance with human rights standards. The narrowness of this focus on compliance, however, has relegated the question of the political conditions of the emergence of human rights norms, institutions, and doctrines, and especially of the role of power in conditioning distributive outcomes between stakeholders, to the background. The role of variables such as power, hegemony, socialization, identity, culture, and knowledge in shaping effectiveness and capturing the methodological complexities involved in cross-cultural formation of human rights norms and norm-internalization has rarely been studied methodically. This Article seeks to expose and problematize the ideological connections and normative commitments between theoretical explanations of human rights regime effectiveness and the pragmatic process-oriented proposals for effectiveness made in the United Nations (UN) in the 1990s. The liberal theory of effective supranational adjudication was the culmination of decade-long efforts by American liberal internationalists to provide a theoretical basis for and programmatic proposals for the UN towards achieving a more “effective” international human rights regime. Their theory aims at structuring the interface between the universal and regional human rights systems through a reconfigured account of “transjudicialism” (Helfer & Slaughter). It can be taken to exemplify a particular liberal legal sensibility they share with post-war mainstream human rights lawyers (Alston) and that I call “transnationalism-legal-process-antiformalism” (TLPAF). Drawing on regulatory networks scholarship (Raustiala; Slaughter & Zaring), TLPAF regards transnational governance through disaggregated processes of cooperation and dialogue in information exchange as instrumental to the development and effectiveness of supranational institutions. Formalist legal structures are, accordingly, rebuffed and displaced by the specification and enforcement of substantive human rights norms through informal, teleological procedural mechanisms. Drawing on various strands of IR theory, critical social and legal theory, relational theory and the psychology of linguistics, the Article develops a cognitive model of the interplay between supranational tribunals adjudicating human rights, States and social movements I call “judicial sociodiscursive interactionism” (JSDI). Interactional models of international rulemaking and compliance in IR/IL theory (Koh ; Brunnee & Toope) recognize that legal norms help construct national and local identities and interests through a relational process of justificatory discourse and persuasion. JSDI, for its part, emphasizes how such relational knowledge-production seeks to foster social relationships conducive to the realization of particular values in human rights. Through a review of the scholarship on transjudicialism and a case study analyzed by transjudicialism theorists themselves, the Article illustrates how JSDI could nicely complement recent sociological research in the field of international human rights (Goodman & Jinks) with which it shares many affinities; namely by emphasizing, in addition to the insights generated by this body of work, the importance of the relational constitution of rhetorical knowledge, as well as of the relationships fostered through social interactions, to identity-building at the supranational, domestic, and sub-national levels. Part I of the Article argues that it is impossible to fully comprehend this interactional model of JSDI and its relation to human rights law’ core problematic of engaging and bridging cultural differences unless one factors in two elements: first, a displacement of a rationalist interest-based calculus as a progressive human rights narrative in transjudicialism; and, second, a commitment to a more robust communicative conception that focuses on identity formation and transformation as the governing logic of institution-to-institution, and institution-to-domestic social actor dialogue. It is not possible to construe a grand theory of human rights cross-cultural fertilization and norm-internalization in unitary terms because every method of coordination of different plural normative orders is bound to some a priori ideological premises about social ordering. The Article also begins to fill an important gap in the growing IL/IR scholarship on compliance by proposing a relational theoretical framework for understanding how norms influence domestic regulators, and how culture and rights structure patterns of interaction and relationships between social actors and norm-enunciators. These, in turn, affect in various ways the practice of international institutions, social movements and state decisions to comply with human rights norms, and their varying levels of compliance. Part II, accordingly, explores the politics of representation of “effectiveness” in transjudicialism scholarship in devising prescriptions to policymakers for designing “effective” supranational human rights adjudication. The Article then tests these assumptions against JSDI in Part III through a highly contextual case study on the death penalty. This study illustrates how arguments about human rights regime effectiveness and judicial cross-fertilization conceal important blind spots and prejudices about human rights normativity. By re-coding “identity” within doctrinal debates in international human rights law, the Article ultimately seeks to build more sophisticated analyses of the legal sociology of cross-fertilization and norm-internalization in international human rights theory and practice.
Publication Year: 2010
Publication Date: 2010-06-17
Language: en
Type: article
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Cited By Count: 12
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