Transnational Tribunals and Domestic Societies

Transnational tribunals—mechanisms that allow sub-national actors such as individuals and companies to sue States for alleged infringements of their rights—are not only proliferating in number, they also have larger caseloads covering more substantive areas than ever before. I have just posted to SSRN an article assessing whether and how such tribunals cause normative change in the domestic legal and political systems of member states. The full abstract and link to the article download are available here.

Many scholars recently have focused on the issue of international tribunal effectiveness—essentially whether States comply with adverse rulings. I ask whether the repeated use of transnational tribunals, ranging from investor-State dispute resolution to human rights litigation before courts like the European Court of Human Rights, may cause a change in the beliefs and habits of domestic societies.

I conclude that instead of normative transmission being simply a form of legal imperialism by Western democracies, as some have argued, there are actually many different constituencies building alliances across state and class lines in attempts to forward their claims both domestically and internationally. All of these constituencies—corporate interests, human rights activists, environmentalists, and indigenous peoples—access and use the tools of globalization via the means of transnational legal process, such as adjudication before transnational tribunals. This is neither the North versus the South, nor the global versus the local, but rather the struggle of communities that transcend state borders, have competing conceptions of the good, and use the tools of globalization. Their common use of similar legal mechanisms leads to a “hegemony of process” in which certain outcomes are favored by certain procedural structures.