Academic journal article Proceedings of the Annual Meeting-American Society of International Law

New Voices: The Role of International Legal Institutions in Norm Development

Academic journal article Proceedings of the Annual Meeting-American Society of International Law

New Voices: The Role of International Legal Institutions in Norm Development

Article excerpt

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.


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. …

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