Multi-Sourced Equivalent Norms: Concluding Thoughts
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This volume begins with the Bible – with ‘righteousness’ – and yet its guiding premise or idea is that one can meaningfully speak of norms and their application in a neutral language, abstracting from any specific moral or political commitment. This is of course the perspective of modern (but not postmodern) social science: norms and their operation can be studied as social ‘facts’ – with scholarly or scientific distance. At the same time, the world of international law in which I work and live is full of passion and struggle and conflict. International law is about punishing genocidal leaders and intervening in failed states; about who gets access to AIDS drugs and on what terms; about saving sea turtles and whales; about financial, and economic and environmental and other crises and catastrophes and who pays for the clean up. It is thus fitting that the final chapter in the volume by Claire Charters returns us to the question of ‘righteousness’, albeit framed in the modern idiom of ‘legitimacy’. As Charters suggests, the weight or guiding power of a norm cannot be determined by its formal or general properties but depends ultimately on the rightfulness of the end that it serves and of the processes and people that created it. What does it mean to speak of norms as ‘equivalent?’ As Broude and Shany indicate, equivalence does not mean sameness or even equality. But it implies some common standard against which the element of difference and thus the nature of the choice between the norms can be assessed. Consider their first example: ‘The same behavior – assault, or willful killing – is often prohibited under criminal statutes and at the same time gives rise to liability under tort.’ The common standard here is the wrongfulness of assault and willful killing. The basis for equivalence is a fundamental moral agreement. So when we turn to the world of international law what does it mean to observe that different norms, developed in different ‘sub-systems’ or through different processes (custom versus multilateral treaties for example), are ‘pointed in the same direction’? One would have to presume a ‘direction’ – and therefore – a telos for international law that transcends the various divides that are connoted by the expression ‘fragmentation.’ As Michaels and Pauwelyn point out in their contribution, seeing international law as (ideally) a single system represents or supposes a fundamental normative choice. Drawing extensively on conflict of laws principles in domestic legal systems, Michaels and Pauwelyn raise the possibility that one can ‘solve’ the question of multiple norms in a truly decentralized fashion through technical rules that apply within the various regimes and through which each deals with the others. We are thus invited to imagine that international law is nothing but a universe of specific regimes that are technically coordinated. Here the sharpest contrast (at least in this volume) is with Charters, who argues that the claims of indigenous peoples have a basis in justice that is cognizable by and affects the international legal system as a whole: conceptions of rights, property, sovereignty and self-determination that cut across many ‘sub-systems’ and regimes of international law are affected by the recognition of the justice of these claims. Teitel and I are closer to Charters’ view: drawing on an argument made in extenso in her forthcoming book Humanity’s Law, we posit that humanity and its protection is the ‘concept of justice underpinning international legality [even though] this norm does not have a fixed meaning that guarantees stability or unity in interpretation across contexts.’ If one begins from such a common ground, and thus the possibility of normative communication between diverse actors in international law even if they differ on specific meanings, then the extent and nature of that communication will be articulated through a hermeneutics that has important sociological and political aspects. The sociological aspect is captured to some extent by Moshe Hirsch’s contribution to the volume. The international law of investor protection and that of human rights have, as it were, a common ancestry in the law of diplomatic protection of aliens. In evolving each in its own direction from that common ancestry, both investment law and human rights law break with the Westphalian model: both empower non-state actors to state their claims directly on the basis of international law. And yet as Hirsh notes, arbitrators in investor-state disputes have been very resistant to considering international human rights law in their decisions. The arbitrators, as he indicates, are mostly drawn from the world of international commercial law, and see themselves as agents of the ‘depoliticization’ of international economic relations. By contrast, those who invoke the language of international human rights in these disputes seek to ‘repoliticize’ economic globalization, anchoring it to the fundamental moral and political commitments upon which international human rights law is arguably grounded. But Hirsh rightly points out that the sociological differences are unstable and things can change.
Source Publication
Multi-Sourced Equivalent Norms in International Law
Source Editors/Authors
Tomer Broude, Yuval Shany
Publication Date
2011
Recommended Citation
Howse, Robert L., "Multi-Sourced Equivalent Norms: Concluding Thoughts" (2011). Faculty Chapters. 856.
https://gretchen.law.nyu.edu/fac-chapt/856
