Designing Bespoke Transitional Justice

The field of transitional justice is in need of a unified theory that addresses flaws in contemporary approaches to accountability for mass violence. My most recent article, Designing Bespoke Transitional Justice: A Pluralist Process Approach (published in the Michigan Journal of International Law) presents a novel theory of effective transitional justice processes as those that successfully reconstruct social norms concerning mass violence.
Because norm generation is an inherently communal and contingent social process, transitional justice ought to be primarily locally-controlled and always precisely tailored to particular events and societies. In a word, it must be bespoke. This approach seeks to replace a universalist vision of transitional justice -- imposition of a uniform set of substantive values -- with a pluralist approach to transitional justice -- reconciliation of competing value frames through an inclusive process. This theory should be used to inform the design of effective transitional justice mechanisms ex ante, rather than to assess the impact of extant institutions ex post.
The current reliance on international criminal law as the favored normative framework for transitional justice results in several theoretical and structural problems (detailed further in the paper). Drawing on several academic disciplines, the article suggests that, in order to successfully reconstruct social norms, the local population must perceive transitional justice mechanisms as legitimate and the values they propound as worthy of internalization. Transitional justice mechanisms carefully tailored to the society they serve will be perceived as significantly more legitimate than institutions drawn from a "universal" mold.
The article provides the first comprehensive attempt to catalogue the perceptions and attitudes of local populations toward contemporary transitional justice mechanisms. Empirical surveys and cultural studies demonstrate legitimacy gaps that have largely been caused by failures of international criminal courts to incorporate local perspectives and preferences. Other mechanisms have been more successful in garnering legitimacy, but these locally grounded accountability efforts have limitations of their own. The central lesson from these case studies is that the existing catalogue of transitional justice institutions should be viewed as a spectrum rather than a hierarchy of options.
The article then offers concrete suggestions for crafting effective transitional justice mechanisms. It presents design principles that aim to buttress the legitimacy of the source, procedure, and substance of these institutions, as well as evidence-based and locally grounded mechanisms to implement these principles.
The article concludes by situating its proposals in current international law and dispute resolution literature. Global legal pluralism scholarship assumes that competing visions of substantive justice will exist within the society afflicted by mass violence and aims to incorporate, or at least respond to, a variety of perspectives. Dispute resolution literature advocates for a flexible, inclusive process of dispute resolution design rather than a rigid adversarial legalist approach. Drawing from both of these literatures, an inclusive and carefully structured design process achieved through prescriptive empiricism offers tantalizing potential to create more effective mechanisms of transitional justice.

Where and when transnational law develops

(Part 3 of a 3-part series of guest posts by Mireille Delmas-Marty)

Having traced the development in France and the United States of transnational law processes such as cross-referencing, harmonization, and hybridisation, we now examine the questions of where and when transnational law develops.

Location of transnational Law
In the United States, much of the development of transnational law seems to be found at the national level, given the significance of the roles played recently by the Supreme Court regarding cross-referencing and, to a lesser extent, harmonisation.
In France, the national level also remains important. But the international regional level also is very much in play. National judges are becoming international judges, in the sense that they may, and must, exclude national law when it is contrary to European law. European statutes and case law increasingly are incorporated into domestic law. Just as Americans say,

"International law is part of our law,"

recalling the statement in Paquete Habana (1900), we in France say,

"European law is part of our law."

The global level, finally, is the right answer in some areas. This may be seen in, for example:
► Criminal law, in which international conventions have initiated global movements toward change. There may be no European prosecutor -- an innovation that I advocated in my work on Europe’s Corpus Juris project -- but there is already a global prosecutor, in office at the International Criminal Court.
► Environmental law, in which the 1997 adoption at the global level of the Kyoto Protocol, which set targets for regulating greenhouse gases has spurred legal reforms in France and other states and at the European regional level.

Timing of transnational law
The proliferation of international conventions designed to bring about change in the transnational legal world provokes scrutiny of the final question of when -- at what pace -- transnational law develops.
It seems unrealistic to demand implementation of international conventions at the same time in every place. It is thus not surprising to discover the emergence of legal practices allowing states to incorporate various norms of international law at their own pace. This multiple-speed mechanism of implementation -- which I have labeled "polychrony" in my book Ordering Pluralism (trans. Naomi Norberg 2009) -- may contribute to the ordering of legal pluralism. That is because it enables the integration process to continue without the slowest wagon dictating the speed of the convoy, as former German Chancellor Helmut Kohl once put it.
Examples of polychrony:
► At the European level, some states welcome passport-free circulation within the multinational borders of what’s known as the Schengen area, while other states lag behind, maintaining strict controls at their own national borders.
► At the global level, Article 3(1) of the 1992 U.N. Framework Convention on Climate Change articulates a principle of "common but differentiated responsibilities" that establishes different time tracks for reduction of greenhouse gases. The same method was suggested as a way for the World Trade Organisation to allow developing countries to make commitments according to their means and abilities, rather than to exclude them from multinational discussion for the reason that they cannot integrate at the most rapid speed.
In effect, embrace of polychrony transforms a strategy of accepting derogation from multistate legal norms into one of anticipating conformity to those norms. Risks remain, however: integration by the mechanisms of transnational law may result in the disintegration of national and international laws.

Conclusion
Scrutiny of legal pluralism in the transnational legal world reveals not a well established global legal order, but rather interactions between national and international systems that play out in apparently contradictory, nonlinear, disorderly movements. It is a world in which new processes, extremely complex, continue to evolve. Legal systems seem to change form almost as soon as they take shape, long before we have had the time to determine their outlines.
This contemporary reality departs from the hierarchical pyramid-of-law metaphor advanced decades ago by the jurist Hans Kelsen. I suggest that we replace the image of the static pyramid for that of dynamic clouds. The cloud metaphor aptly represents the continuity of formation and deformation ongoing in Europe. It applies too at the global level, where individual experience and interests represent fragments of an ever-changing sky.
Let us dream of the day when a common core of values might in a single breath order our marvelous clouds without forcing them to stay in a single space.

(Part 1 of this 3-part guest post, which introduced comparison of the French and U.S. approaches to the transnational legal world, is here; Part 2, on how transnational law develops, is here.)

How transnational law develops

(Part 2 of a 3-part guest post by Mireille Delmas-Marty)

Having introduced a comparison of French and U.S. approaches to legal pluralism in a transnational legal world develops, we now consider answers to our threshold question: How does the transnational legal world develop?
Transnational law develops through:
► cross-referencing,
► efforts to harmonize, and
► creation of hybrid rules of substance and procedure.
In both the European and the U.S. legal systems, the last method is rarely used. It is true that some hybrid rules have been created. An example is the hybridisation of the accusatorial and inquisitorial criminal procedure rules that occurred first in the ad hoc tribunals and later at the International Criminal Court. But these rules – which increase judicial powers in the preliminary phase, transmit dossiers to the trial judge, and accord more prominent roles to victims – do not directly affect national legal orders.
In the United States, much has been debated about the 1st option, called cross-referencing or, sometimes, consultation; that is, the citation by U.S. judges of decisions handed down by judges of foreign constitutional and international courts. Most salient are 2 U.S. Supreme Court judgments, Lawrence v. Texas (2003) and Roper v. Simmons (2005). The latter issued during a Term when the Court considered or referred to foreign law in at least 6 cases, according to Justice Stephen G. Breyer (above). In his foreword to my book Ordering Pluralism (trans. Naomi Norberg 2009), Breyer wrote that "six out of a total docket of 79 indicates the increasingly routine nature" of this method in American cases.
In France, meanwhile, the main concern is the middle option, harmonisation. Jurists focus on the changes that European efforts to harmonise different national systems imposes on criminal, contract, and other sectors of French law.
Harmonisation is a very complex process, entailing both more and less integration than either of the other 2 options:

Harmonisation and cross-referencing
Compared with cross-referencing, harmonisation requires more integration. Cross-referencing assumes the priority of domestic law; in contrast, harmonisation involves a hierarchy in which an abundance of international law is binding on the national legislative authority. That international law derives, moreover, from both poles of the bipolar European legal system discussed in my last post:
► Respecting the European Union pole, France’s Conseil d’État (right) observed in 2000 that since the 1960s the Community had produced more than 68,000 acts supposed to be integrated to French law.
► Respecting the Council of Europe pole, the indirect effects of decisions by the European Court of Human Rights (below left) against France must be noted. In 1990 that Court condemned France twice -- in Huvig and Kruslin, which challenged wiretapping without any legal basis -- and France adopted a new law within a year. In Medvedyev (2008), a Court panel ruled that in France the prosecutor is not independent enough to satisfy the due process principle enshrined in Article 5 of the Convention on Human Rights and Fundamental Freedoms. Should the Court’s Grand Chamber confirm this finding of violation, the French government likely will have to delay and revise a pending plan to transfer more power from the investigating judge to the prosecutor, about which I wrote an op-ed last summer. (Prior IntLawGrrls post)

Harmonisation and hybridisation
Compared with the 3d option of hybridisation, however, harmonisation involves less integration This is because each member state enjoys a margin of appreciation that precludes application of strictly identical rules throughout Europe. As articulated in Handyside v. United Kingdom (1976) and later judgments, the margin-of-appreciation concept operates to limit the jurisdiction of the European Court of Human Rights, particularly in areas in which differences among members states are so strong and so deeply linked to national cultures that it seems impossible for international judges to impose the same rule on every state. Examples include areas such as abortion, euthanasia, and privacy. The national margin of appreciation excludes binary reasoning: it imposes not an obligation of strict conformity, which bars all variation, but rather an obligation of compatibility, which permits some differences in application of European legal norms.
In short, the margin of appreciation involves gradation-based reasoning -- fuzzy logic, as I have called it -- and accepts incomplete integration.
Not all differences are accepted, however. The concept preserves some gradation of integration, for it assumes limits which must not be exceeded. Examples:
► Abortion may be subject to limitations by the state that are strict, as in Ireland or Poland, or not so strict, as in Germany. But, as the Court established in Tysiac v. Poland (2007), the domestic law must effectively implement the Europe-wide right to abortion.
► Wiretapping may be controlled very differently in each European national system -- by administrative authority, for instance, or by a judge or a parliamentary commission. The Court has not relinquished its right to review such mechanisms, but has limited review to those deemed incompatible with Europe-wide norms.
This graduated approach has some resonance among U.S. jurists. Justice Breyer proposed in Heller (2008), which entailed "review of gun control regulation," U.S. courts ought to embrace an "interest balancing inquiry." Breyer considered deference to legislative appreciation to be "particularly appropriate" given that the decision was made "by a local legislature, with particular knowledge of local problems and insight into appropriate local solutions." The consequence is that different localities may seek to solve similar problems in different ways. Breyer’s dissenting opinion in Heller:

The Framers recognized that the most effective democracy occurs at local levels of government, where people with firsthand knowledge of local problems have more ready access to public officials responsible for dealing with them.

(internal quotation marks omitted) This statement is not so different from those in which the European human rights court has considered that national courts are better situated than European judges to determine the proper scope of restrictions based on public order.

(Still to come in this 3-part guest post: Part 3, on where and when transnational law develops; here. Part 1, which introduced comparison of French and U.S. approaches, is here.)

Coping with legal pluralism: French & American approaches to the transnational legal world

(Part 1 of a 3-part guest post by Mireille Delmas-Marty)

From the viewpoint of tradition in France, or any continental European state, the term "legal pluralism" seems to be a kind of monster -- a chimera, if you will. That is because the 2 words that make up the term usually carry opposite meanings:
► "Pluralism" implies differences, dispersion, and free movement, interaction and evolution; in contrast,
► "Legal" leads us to think in terms of a unified, hierarchical, static structure.
But the world is not static, and so we must take up the challenge of overcoming this contradiction. We must change our minds just as our legal history changed. It changed at the end of World War II, when a European legal order emerged, and then again since the end of Cold War, when the so-called globalisation of law accelerated. Changes occurred in, to name a few areas:
► Human rights law with the adoption of the Universal Declaration of Human Rights and subsequent instruments;
► Trade law with the establishment of the World Trade Organisation;
► Environmental law with the 1997 Kyoto Protocol and perhaps the Copenhagen process; and
► Criminal law with the International Criminal Court.
The emergence of the European legal conception has deep influence, one that perhaps makes it easier for the French to accept and join this transnational legal world.
On initial comparison, similarities between the legal system of Europe and the federal system of the United States jump to the fore. The distribution of powers between European member states and the community is as sensitive as in any federal system. Power is transferred to the community whenever member states in Europe are unable to comply with community objectives. That practice -- an implementation of the principle of subsidiarity -- is paired with that of proportionality. This latter norm is stated in Article 5 of the Lisbon Treaty as follows:

"[T]he content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties."

The effect of proportionality on European integration is like that of a dimmer switch on a lamp: integration is increased when member states do not attain European Union objectives, and decreased when they do.
Despite those similarities, the differences between the European and the U.S. systems are critical.
They differ, for example, in history.
For centuries, Europe was constructed as separate states, independent in politics, language, and legal system, while America was founded as a federal republic with a national as well as state governments.
The 2 systems differ as well in contemporary practice.
Although we tend to think of the United States as more unified, in some areas this is not the case. With respect to the death penalty, for example, unification appears more complete in Europe, pluralism more present in the United States. But in most areas, it’s the other way around: pluralism appears much more complex in Europe, where the system is both bipolar and multipolar:
► Bipolarity is symbolised by the coexistence of 2 European supreme courts. For the Council of Europe, comprising 47 states including Russia and Turkey, there is the European Court of Human Rights in Strasbourg. For the subset of 27 states that make up the European Union, there is also the European Court of Justice in Luxembourg. By tradition the latter focuses on the market, the former on human rights.
► Multipolarity is preserved in each of these bipolar regimes, by different legal techniques. In the Strasbourg system there is, of course, the doctrine of margin of appreciation. In the Luxembourg system, member states may opt out of certain aspects of European legal integration. Thus the December 2009 entry into force of the Charter of Fundamental Rights of the European Union (prior IntLawGrrls post) may not apply in Britain, Poland, or the Czech Republic, each of which has obtained the ability to opt out of that instrument.
It may seem difficult to accept such a wide range of pluralism within a federal system.
That is why, in my opinion, the European legal order is situated halfway between reproducing a federal legal system and anticipating a global legal world. Such a global legal world should constitute neither the complete fusion nor the complete separation of diverse legal systems. It should, rather, constitute what I call "ordering pluralism." Thus the title of my new book: Ordering Pluralism (2009) (prior IntLawGrrls post).
I use "ordering," rather than "ordered," pluralism in order to stress the movement rather than the model, the process rather than the result.
From the vantage point of ordering pluralism, I would say that the questions asked in the French and American approaches to law are the same:
► How does transnational law develop? Is it a law among nations? A law beyond single nations?
► Where does transnational law develop? At which level? National? Regional? Global?
► When does transnational law develop?
At this point in time, the answers each approach gives are somewhat different. Yet one can expect that over time they may converge.

(Still to come in this 3-part guest post: Part 2, on how transnational law develops, and Part 3, on where and when it develops)

Customary Justice and Gender

I spent the afternoon at a conference on ‘Customary Justice and Legal Pluralism in War-Torn Societies’ that was co-sponsored by George Washington University, the U.S. Institute of Peace, and the World Bank. The conference is designed to focus on how customary justice systems are important components to rethinking what the Rule of Law means in post-conflict societies. The participants were drawn from the worlds of anthropology, international development, civil society in post-conflict countries – and a few lawyers.

I moderated a session on Northern Uganda. Although the session was not explicitly dedicated to gender, one of the dominant themes of the 4 presenters centered on women’s rights to land. Much of the litigation over land involves women, who are widows, internally displaced persons, or nonmarital women. We heard from the founder of LEMU, the Land and Equity Movement in Uganda, about how to protect women’s rights to land, given the existence of both customary law and “state” laws. The presenters emphasized the tensions between the different legal systems in Uganda, but noted that customary law was not necessarily hostile to women’s land ownership rights. Indeed, they recommended writing down customary law (to the fullest extent feasible) in order to help safeguard rights when there is litigation that must apply customary law.

Read On! Ordering Pluralism

(Read On! ... occasional posts on writing we're reading) Shameless self-promotion, I didn't realize it was already on the market, my most recent translation: Ordering Pluralism. A Conceptual Framework for Understanding the Transnational Legal World (2009) by Collège de France Professor Mireille Delmas-Marty (right) (prior IntLawGrrls posts).
Better than the jacket blurb you'll find by following the link is this excerpt from the preface by U.S. Supreme Court Justice Stephen G. Breyer:

This book ... helps us understand how law among nations and beyond single nations develops through cross-referencing, through efforts to harmonize, and through the creation of hybrid rules of substance and procedure. It helps us understand where this law develops, regionally or internationally. And it helps us understand the significance of the temporal leads and lags created as this law develops over time. In a word, the book helps us understand, talk about, and evaluate what is happening before our eyes.

Bonne lecture!

Exploring a law that's all about rural women

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

For the past several years, my scholarship has explored the legal relevance of rurality. One of my goals has been to expose rural difference — which is often also rural disadvantage — with respect to a range of domestic legal issues, e.g., abortion access, youth substance abuse, intimate partner violence, and availability of health and human services. My work reveals a pervasive presumption of the urban in culture, law and legal scholarship. Rural women have been the focus of a great deal of my writing, including an article that theorizes the intersection of gender with the rural-urban axis.
My most recent publication goes international with this “critical legal ruralist” (and feminist) project. Entitled Migration, Development and the Promise of CEDAW for Rural Women, it has just been published in Volume 30 of the Michigan Journal of International Law. To the best of my knowledge, this is the first publication to look in any systematic way at Article 14 of the Convention on the Elimination of All Forms of Discrimination Against Women. If you are a human rights scholar and the mention of Article 14 leaves you scratching your head, trying to recall the topic of that provision, your response may support my point about a pervasive presumption of the urban. You may have overlooked Article 14 because it is all about rural women.
For a self-proclaimed ruralist like me, Article 14 was a very exciting find. I am delighted that a recent symposium of the Michigan Journal of International Law, entitled “Territory without Boundaries”, provided a timely opportunity to write about it. While U.S. law largely ignores the rural-urban axis, here in an international human rights instrument is an express legal recognition of rural difference — accompanied by a call to action.
My new article looks at the travaux préparatoires to explore how this marginalized population got included in CEDAW and how drafters determined which particular concerns of rural women got addressed. Several developing nations first put rural women on the CEDAW agenda, and they were apparently motivated to do so because of women’s role in food production. What ultimately became Article 14 was sponsored by Egypt, India, Indonesia, Iran, Pakistan, Thailand, and — interestingly — the United States.
The fact that an international human rights instrument such as CEDAW expressly acknowledges rurality and rural difference should not be a great surprise to us. The United Nations attends to rural people and places in many contexts. Some examples are here, here, and (implicitly) here. This U.N. attention seems highly appropriate, given that about half of the world’s population is still rural. (Compare that to just under a fifth of the population of the United States, where rural interests get systematic government attention only within the U.S. Department of Agriculture). After all, “rural” is to some degree synonymous with undeveloped and primitive, just as “urban” connotes civilization and development. Plus, a great deal of the content of international human rights law arguably targets developing nations, compelling them to adopt the norms of the developed world. In the same way, CEDAW’s Article 14 seeks to secure for rural women the same rights urban women get, e.g., healthcare and education, while also recognizing rural-specific needs.
A very recent U.N. recognition of the significance of rural women came with the United Nations’ observance of the first International Day of Rural Women on October 15, 2008. According to the U.N. declaration, the day’s designation recognizes “the critical role and contribution of rural women, including indigenous women, in enhancing agricultural and rural development, improving food security and eradicating rural poverty.” (See this post on my Legal Ruralism Blog.) In the developing world, rural and agricultural are much more nearly synonymous than in the developed world. Indeed, the focus of my new publication is the Article 14 guarantees that are linked closely to women’s roles as the so-called architects of food security. These rights include land ownership, inclusion in development planning and implementation “at all levels,” and access to credit, marketing facilities and agricultural technology and extension services. To better understand the potential of CEDAW to enhance rural women’s livelihoods, I examine the most recent country reports of four member states: China, Ghana, India, and South Africa. All have significant rural and urban populations; in a sense, all are simultaneously developed and developing.
My discussion of CEDAW’s Article 14 is situated in the context of massive rural-to-urban migration worldwide. In fact, its publication comes just months after demographers report that, on a global scale, urban dwellers began to outnumber those living in rural areas. As globalization creates conditions that induce migration, causing the populations of cities to burgeon and their territories to sprawl, those same forces shape rural places, too. Although that which is rural is often thought of as quintessentially local, rural livelihoods around the world are buffeted by economic restructuring, migration, and climate change. I thus consider CEDAW in relation to migration’s consequences for the women who are left behind: enormous challenges, but also opportunities for empowerment.
Among other observations, I laud the priorities and framework of CEDAW’s Article 14 in terms of the ways in which they seek to foster women’s agency and material well-being. Many of the enumerated rights are of the socioeconomic variety rather than of the civil and political type. It is thus not surprising that Member States’ responses to Article 14 tend to be more often programmatic than in the nature of law reform.
I also discuss the potential for CEDAW’s Article 14 to accommodate legal pluralism, which can be particularly relevant in rural places, where custom and local sources of authority tend to be more entrenched and influential than in urban locales. I further suggest that the population churn associated with migration represents an opening for the renegotiation of gender roles and other cultural practices in rural places. I argue that migration enhances the prospect of raising the collective consciousness of rural communities regarding national and international legal norms, while also facilitating enforcement of rural women’s rights by fostering their access to formal legal actors and institutions at higher scales, usually in urban places. Finally, throughout the Article, I consider parallels between developing and developed nations with regard to rural-urban difference, population trends, the industrialization of agriculture, and the social and economic consequences of these phenomena.
Migration, Development and the Promise of CEDAW for Rural Women is hardly the last word on CEDAW’s Article 14. My analysis of the intersection of development, migration and human rights law for rural women raises many more questions than it answers:

► Among these questions is the impact of rural spatiality — including a relative absence of formal legal institutions and actors — on the ability of rural women to realize the promise of international instruments such as CEDAW and the domestic laws and programs that respond to its mandate.

► Another is the extent to which development efforts entail or encourage urbanization and how CEDAW’s vision for empowering rural women might influence the trajectory of development.

► A third is the wisdom of development strategies that fuel migration’s urban juggernaut by promoting the industrialization of agriculture. Such strategies — which I argue reflect an urban bias — seem wrong headed at a time when the developed world’s food production priorities are shifting to value and emphasize sustainable agriculture.

I hope other scholars who are interested in gender, how we feed ourselves and the planet, and maybe even rurality, will join me in exploring these and other issues related to Article 14 of CEDAW.

(Cross-posted at Legal Ruralism Blog.)