Revised Article on SSRN: Transnational Tribunals and the Transmission of Norms

I have posted to SSRN a substantially revised version of my forthcoming article Transnational Tribunals and the Transmission of Norms: The Hegemony of Process. Transnational tribunals, which I define as dispute resolution mechanisms that allow nonstate actors such as individuals and companies to sue states for alleged infringements of their rights, include regimes as disparate as ICSID arbitrations and the European Court of Human Rights. My article assesses whether and how such tribunals cause normative change in the domestic legal and political systems of member states.

Going beyond questions of whether or not a particular state has complied with a particular ruling, I draw from sociology, game theory, and international relations theory to assess whether and how these tribunals play a role in the evolution of the beliefs and habits of a society. Ryan Goodman and Derek Jinks have observed that “the microprocesses of social influence are often underspecified, underanalyzed, or, at best, underexplained.” This article attempts to play a part in considering the different forms and effects of such microprocesses. Other scholarship on transnational or international tribunals has focused on the effectiveness of the tribunals and the enforceability of their decisions as a conduit for international norms into domestic norms. While effectiveness is important, if not crucial, I contend that the process of adjudication is also important. That is, besides and apart from the judgments of these tribunals, how we do what we do as international lawyers has a nontrivial impact on the acculturation of norms within a society. This is what I call the hegemony of process: the process of adjudication establishes certain methods of asking and answering legal and policy questions and consequently certain results are reached time and again and also certain expectations as to substantive ends arise. So it is not only enforcement, but it is the act, the method, the process itself, that is important for the transmission of norms.

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, in this case transnational tribunals. This is neither the North versus the South, nor West versus East, 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 the hegemony of process: disparate actors with different, and possibly conflicting, goals and agendas adopting similar techniques and mechanisms, which themselves favor certain types of results.

By the way, I also discuss transnational tribunals, particularly in regards to religious freedom in this essay concerning a Father Robert Drinan’s book Can God and Caesar Coexist?