A Response to Galit Sarfaty

by Martin Totaro

Sarfaty’s reply addresses a fundamental problem with conflating norms with binding legal rights. In my article, I argue that the classification of a potential human right—like participatory development—may be seen as operating on a continuum. On one end of the continuum exists a norm. On the other end exists a rule of customary international law. As a norm “crystallizes,” it has the potential to move along the continuum toward attaining recognition as legal right. My article suggests that, while the norm/law continuum is fluid and dynamic, the current requirements of CIL mandate that an international human rights norm not be viewed as an international human rights law until states and major intergovernmental organizations like the World Bank consistently practice participatory development out of a sense of legal obligation.

Sarfaty responds by correctly noting that “it is difficult to empirically determine when a norm is being internalized out of a sense of legal obligation as opposed to moral obligation.” As Andrew Guzman and others have pointed out, one reason for this difficulty is that major international actors talk and act, but do they really “think?” If not, then we are left with studying what these actors say and do to understand whether these actions are taken out of a sense of legal obligation. With respect to participatory development, that means looking at how the World Bank and its biggest donor engage in the practice of participatory development.

The examples I provide demonstrate that the World Bank has been slowly internalizing some version of a participatory development norm. The Bank has devoted a large number of resources in an attempt to practice (or, at a minimum, to have the appearance of practicing) participatory development. Sarfaty, however, challenges my choice of internalization examples because “project-level participation is a better indicator of whether the norm of participatory development has been internalized.”

I think Sarfaty must be correct. I also think that her critique tends to support two of my points.

First, while the participatory development norm has been slowly crystallizing within the Bank, that process is neither complete nor certain to achieve full internalization. The World Bank has set up bureaucratic structures to support participation by various stakeholders, but Sarfaty points out that these structures do not guarantee that stakeholders on the ground are having a say in Bank projects that will affect their lives in a very real way. Still, if we compare the Bank’s willingness to, for example, fund projects that are “community-driven” (p. 759), shift its country directors from Washington, D.C. to the particular country (p. 760), or augment its funding of civil society partnerships (p. 760) with Bank practices prior to the mid-1980s, we see a marked difference in how the Bank practices participatory development. While participation at the project-level could certainly be more robust, greater internalization at more macro levels also suggests that the norm is in some form being crystallized.

Second, there is no generally-agreed definition for what counts as “participatory” in “participatory development” (pp. 736-39). This definitional quagmire returns us to the problems of satisfying the requirements of CIL. On the one hand, it is difficult to show that a more specific definition of participatory development—Sarfaty’s, for instance, seems to require project-level participation by affected stakeholders—has satisfied the two requirements of CIL. On the other hand, a vague definition runs the risk of being empty rhetoric that does not require the World Bank to do much of anything, let alone out of a sense of legal obligation.

Sarfaty concludes her response by asking whether one should distinguish between legal internalization and social or political internalization. My answer, both here and in the article, is an emphatic “yes,” and the current requirements of CIL provide the place for us to look to discern whether a moral norm has attained status as an international human rights law.

http://opiniojuris.org/2008/07/02/a-response-to-galit-sarfaty/

Comments are closed.