Author Archive for
Galit A. Sarfaty

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


Unpacking the Participatory Development Norm: Galit Sarfaty Comments

by Galit A. Sarfaty

[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.