International Law as Behavior Symposium: Toward an Anthropology of International Law

by Galit A. Sarfaty

[Galit A. Sarfaty is the Canada Research Chair in Global Economic Governance and Assistant Professor at the Faculty of Law, University of British Columbia]

With the growing importance of global legal institutions, new forms of global law, and transnational social movements around legal issues, anthropologists are studying the multiplicity of sites where international law operates. Scholars have examined the practices of international courts and tribunals and their conceptions of justice in relation to those of local communities. They have studied the global impact of law-oriented nongovernmental organizations on postcolonial consciousness. They have also analyzed the production of international treaties by transnational elites and their localization and translation on the ground. Given the critical need to uncover how international law is produced and operates in practice, legal scholars can gain insights from anthropological literature and adopt ethnographic tools in their own analysis. As I will outline below, anthropology offers unique insights in understanding international law behavior.

What is an Anthropological Approach to International Law

Anthropological theory and methods enables the study of how international law operates in practice, from how it is produced on a global scale to its localization on the micro-level. Through ethnographic research, anthropologists analyze individual actions, systems of meaning, power dynamics, and the political and economic contexts that shape the operation of international law. They recognize disjunctures between how laws are written and how they are implemented on the ground, as well as further variations in how they affect different communities. In the context of Harold Koh’s transnational legal process theory of norm compliance, an anthropological approach sheds light on the norm emergence and internalization phases by which international norms penetrate domestic legal systems on the local level.

Ethnographic research involves case-oriented study, including long-term fieldwork and in-depth interviews. In the context of studying international law, fieldwork is frequently multi-sited to allow researchers to analyze such phenomena as the transnational circulation of global norms and local settings where multiple legal orders intersect—or what scholars call “global legal pluralism.” By tracking the flow of laws, institutions, people, and ideas across locales and jurisdictions, multi-sited “deterritorialized” ethnography is a useful tool in the study of international law.

Anthropological research aims at answering a question rather than testing a hypothesis. Unlike other methods, it is not based on prior assumptions or models. Rather, hypotheses and theories emerge from the data, and are constantly evaluated and adjusted as the research progresses. Interviews are usually unstructured or semi-structured with open-ended questions developed in response to observations and ongoing analysis. The questions are designed to seek respondents’ interpretations of what is happening and allow them to describe problems, policy solutions, and their rationales in their own words.

What Anthropologists of International Law Study

While there are numerous areas of focus for anthropologists of international law, I will very briefly highlight a few important ones here: (i) the cultures of international organizations and international tribunals; (ii) the transnational circulation and localization of international legal norms; and (iii) the knowledge practices and technologies of governance in international law.

The Cultures of International Organizations and International Tribunals

Ethnographic research of international organizations (IOs) uncovers the formal and informal norms and the decision-making processes within the institutions that shape state behavior. Ethnographers examine organizations from the top down as well as the bottom up, focusing not only on their leadership and administrative structure, but also on the tasks and incentives of staff. An anthropological description analyzes contestation over cultural meanings and practices, shifting relations of power, and historical change.
Previous scholarship in international relations and international law has devoted little attention to the norm dynamics that operate within IOs and has emphasized the role of states in shaping IO behavior. Through its unique methodology of long-term fieldwork, ethnographic research can provide a comprehensive analysis of the organizational cultures of IOs and how they change. Anthropological analysis entails an investigation of ambiguities, among them slippages between formal institutional representations and actual practice, internal tensions experienced by employees over the values that guide their behavior, and clashes between domains of expertise. Researchers examine these ambiguities in a variety of areas of organizational life: the institutional mission, operational policies, management structure, and the production and circulation of knowledge. For example, in my study of the culture of the World Bank, I revealed the competing subcultures and other internal contestations that have impeded human rights norm internalization. This analysis focused on bureaucratic obstacles including the internal incentive system and power dynamics between staff economists and lawyers. Through ethnographically studying the World Bank, I was able to explain the conditions under which certain legal norms are adopted and internalized on the micro-level as well as how those norms are diffused worldwide.

Anthropologists have recently contributed important insights into the study of international institutions. Scholars have devoted particular attention to the practices of international courts and tribunals as they explore contestations over justice. Richard Wilson’s work on the South African Truth and Reconciliation Commission illustrates its impact in urban African communities in Johannesburg and its effect (or lack thereof) on popular ideas of justice such as retribution. Kamari Clarke’s study of the International Criminal Court (ICC) and the international rule of law movement documents the making of the Rome Statute and the implications of ICC activity in Africa. Her work demonstrates how international institutions and transnational networks are transforming sovereignty in post-colonial Africa and legitimating new relations of global inequality. Anthropological studies such as Clarke’s contribute to our understanding of the workings of international tribunals and suggest that conceptions of justice are highly contextualized and pluralistic.

The Transnational Circulation and Localization of International Norms

Ethnographic studies of local law-making within communities and the transnational circulation of international norms can provide insights into the micro-level mediation process among local, state, and international law. Scholars have analyzed the diffusion of international norms across borders, but their focus on states has neglected the ways in which norms are translated on the local level. What is missing is an analysis of how local communities internalize international norms, and in particular, how these norms interact with local and state norms and shape local institutions.

Anthropological studies have offered insights into the translation process by which legal norms become meaningful on the ground. As an observer of diplomatic negotiations at the UN as well as the workings of grassroots feminist organizations in several countries, Sally Engle Merry examines how human rights become “vernacularized” in local settings as they are appropriated and then translated into local terms. When legal norms are localized, they are not just transplanted but are adapted in a variety of ways. Merry’s work also raises a paradox in the vernacularization process for international legal norms. Norms such as human rights frequently need to resonate with local cultural understandings (including institutional and national cultures) if they are to be accepted by community members. At the same time, they must often reflect universal principles if they are to establish their legitimacy and maintain their transformative character. There are therefore limits to vernacularization, for instance when human rights contradict local conceptions of justice and security.

My own work on the World Bank extends Merry’s insights by revealing another limit of vernacularization: the critical costs that ensue when translation goes too far.   I describe how Bank lawyers have recently translated human rights into an economic framework to resonate with the disciplinary group that is dominant within the institution. They have thus attempted to depoliticize rights by vacating their emancipatory dimension, including their normative valence and legal framework. The strategy of “economizing” human rights has internally divided Bank lawyers, some of whom fear that it impoverishes the rights discourse and undermines its core values.

Knowledge Practices and Technologies of Governance in International Law

Anthropologists are uniquely suited to studying the knowledge practices and technologies of governance that are implicated in international law. These legal forms (e.g., audits, surveys, and data tools) comprise techniques for producing truth and representing knowledge, which are embedded in the ways in which identities are constituted and power is exercised. By identifying knowledge practices and analyzing documents as cultural texts, scholars reveal the impact of these technologies on global governance.

Anthropological work has provided important insights into the technocratic rationalities of international law and their political effects. In her book The Network Inside Out, Annelise Riles provides an ethnographic account of the knowledge practices of UN bureaucrats and Fijian activists preparing for and participating in the UN Fourth World Conference on Women. Through her analysis of artifacts of institutional life (e.g., documents, funding proposals, newsletters, and organizational charts), Riles demonstrates the political-aesthetic dimensions of the knowledge produced through the UN document-drafting process. Her latest research analyzes legal reasoning in global financial markets based on fieldwork among financial regulators and lawyers in Japan. Riles’ study sheds light on the practices of global finance, including the set of legal knowledges that form collateral. This ethnographic work serves as a useful model for the use of anthropological tools to study bureaucratic practices and techniques that constitute international law.

http://opiniojuris.org/2015/01/19/international-law-behavior-symposium-toward-anthropology-international-law/

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