Transnational Tribunals and the Transmission of Norms: The Hegemony of Process
70 Pages Posted: 30 Aug 2005 Last revised: 2 Dec 2009
Transnational tribunals - mechanisms that allow sub-national actors such as individuals and companies to sue states for infringements of their rights - are not only proliferating in number, they also have larger caseloads covering more substantive areas than ever before. My article assesses whether and how such tribunals cause normative change in the domestic legal and political systems of member states.
At issue is not only whether a state chooses to comply with an adverse ruling, but whether the actual norms - the beliefs and habits - of the society change. Drawing on legal theory as well as sociology, game theory, and international relations theory, I compare and contrast the effects of tribunals focused on human rights with those concerned primarily with contractual and property rights.
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 via the means of transnational legal process, such as adjudication before transnational tribunals. This is neither the North versus the South, 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 a "hegemony of process" in which certain outcomes are favored by certain procedural structures.
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By Craig Scott