Filling In the Gaps: Extrasystemic Mechanisms for Addressing Imbalances Between the International Legal Operating System and the Normative System

Abstract

What happens when there is an imbalance between the and systems of international law? One obvious outcome is nothing; the imbalance remains, and the norms of the system are not given full effect. For example, human rights provisions abound, but they can be widely ignored in the absence of enforcement mechanisms. In this article, we identify several other possibilities. Our contention is that adaptations occur that compensate for, or at least mitigate, the effects of the operating-normative systems imbalance. Specifically, we explore four kinds of extrasystemic (at least from the perspective of the international legal system) adaptations: (1) actions by nongovernmental organizations and transnational networks, (2) internalization of international law, (3) domestic legal and political processes, and (4) mechanisms. Our contention is that the international legal system is partly kept functioning by these actors and mechanisms, even though they technically fall outside the framework of the international legal KEYWORDS: international law, NGOs, soft law, norms, compliance. ********** Debates over the legality and legitimacy of the use of force in Iraq in 2003 are but one of the more recent examples in which the norms of international law and the system charged with implementing those norms seemed irreconcilable. This, in fact, reveals a more general problem in international law in which norms and the capacity to implement those norms may not be consonant. Until the international system provides adequate capacity, states and other actors will seek ad hoc and sometimes extrasystemic means to accomplish their ends. By doing so, they may foster more enduring, systemwide change. Among the most visible changes in any legal system is the adoption of new rules or norms of behavior for its members. (1) In the international legal these norms are often specific to a particular problem area. For example, the Convention Against Torture reflected the international community's consensus on outlawing certain human rights violations. Similarly, the global trade agreement emerging from the Doha Round of negotiations may include provisions to limit the use of national agricultural subsidies. The Kyoto Protocol sets limits for the emission of greenhouse gases. Each of these is a component of what we have referred to elsewhere as the normative system, (2) or the part of the international legal system that is quasi-legislative in character by mandating particular values and directing specific changes in state and other actors' behaviors. In effect, the system prescribes, and more often proscribes, certain behaviors for the subjects of international law. The mere specification of behavioral norms does not guarantee that the system will function efficiently. It cannot ensure that those precepts will be observed even when the political will to do so exists. There must be the appropriate processes and structures in place to give effect to the norms. We refer to this as the operating system. As an international law functions as a constitution does in a domestic legal system by setting out the consensus of its constituent actors (states) on distribution of authority, responsibilities in governing, and the units that will carry out specific functions; conventionally, these are classified under sources, actors, jurisdiction, and institutions. We chose the word as one would in characterizing a computer's It is the basic platform upon which a system will operate. When the computer system (e.g., Microsoft Windows) functions to allow the use of specific word processing programs, spreadsheets, or communications software, there is little direct consideration given to that system by the user. Similarly, the system of international law provides the signals and commands that make multiple functions and modes possible, and often requires little conscious effort. …