[Galit A. Sarfaty is a Fellow at Harvard Law School’s Program on the Legal Profession, and a Ph.D. Candidate in Anthropology at the University of Chicago]
I would like to thank Opinio Juris and Martin Totaro for the opportunity to comment on this engaging article. The piece is an excellent contribution to existing literature on norm development and international human rights law. Particularly important is his discussion of the “crystallization” process by which a norm shifts to a human right with corresponding legal obligations. This process has been largely overlooked and is very worthy of study. Totaro is correct to observe that classification of a norm as a legal right is not binary but operates on a continuum. One goal of his article is to distinguish between moral norms and legal human rights. While I agree that such a distinction is useful on a theoretical level, it is difficult to empirically determine when a norm is being internalized out of a sense of legal obligation as opposed to moral obligation. I would welcome Totaro’s thoughts on this issue and his recommendations on how scholars can distinguish the two in practice when conducting research on norm internalization.
My comments primarily focus on the second half of the article. Here, Totaro provides a case study of how the norm of participatory development is beginning to crystallize into a legal human right. Yet in attempting to demonstrate that the World Bank is slowly internalizing the participatory development norm, Totaro relies on insufficient examples that do not adequately establish his claim. Advocates often interpret the norm of participatory development as referring to participation by stakeholders in project design and/or implementation, rather than participation in country-level dialogues. Totaro’s examples are all from the latter category—e.g., the development of Country Assistance Strategies (CASs) and Poverty Reduction Strategy Papers (PRSPs)—so they do not fully address whether the Bank has internalized the participatory development norm in its operational practice. Furthermore, he argues that Global Monitoring Reports “represent a major step forward” in the Bank’s adoption of the norm, yet his main evidence is the level of transparency and accountability in the reports rather than participation (p. 752). His only example of participation around the reports involves the Center for Global Development, a U.S.-based policy NGO that does not represent the typical stakeholder of Bank projects.
I argue that project-level participation is a better indicator of whether the norm of participatory development has been internalized. Instead of only examining participation in country dialogues by select NGOs, one should also evaluate the level of participation by community-based stakeholders that are directly or indirectly affected by development projects. This type of participation is usually mediated by the World Bank rather than the state government. In order to provide an example of project-level participation, I suggest that Totaro discuss the important debate over prior informed consent by potentially affected communities, which was a central issue during the recent revision of the Bank’s Indigenous Peoples Policy (Operational Policy 4.10). Many indigenous communities and human rights advocates have argued that there is a right to prior informed consent, while others claim that it is simply an emerging norm that is not yet recognized under customary international law. The example of prior informed consent suggests that whether the Bank is internalizing this important component of participatory development is highly contested.
Totaro’s final example of “the fluid process between moral norms and legal human rights” is former Bank President James Wolfensohn’s embracing of human rights in non-legal terms (p. 762). This section appears to conflate the right to participatory development with human rights in general. It also relies solely on Wolfensohn’s statements as an indication that the Bank is not implementing the norm out of a sense of legal obligation. But one cannot make this assessment without examining how actual Bank employees are implementing the norm and whether they are accepting it as a binding legal obligation. Totaro raises a related point a bit earlier in his piece, when he rightly observes that the Bank’s governing body and the bureaucrats working inside the institution may hold competing preferences (p. 757). Yet his discussion of “the inevitable bureaucratization of rhetoric” fails to account for the internal tensions within bureaucracies over whether and how to operationalize rhetoric (pp. 758-61). Based on my own experience ethnographically studying the organizational culture of the Bank, the bureaucratization of rhetoric is certainly not inevitable. It is important to recognize the complex decision-making process within bureaucracies that may work against norm internalization, even when those norms are supported in rhetoric.
Finally, it would be useful if Totaro outlined what he sees as the conditions for norm internalization. If Totaro is correct that it operates on a continuum, then what are the different levels before full internalization is reached? Should one distinguish between legal internalization and social or political internalization? Addressing such issues would further strengthen this article and its contribution to existing literature in international law and human rights.