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Introduction*

Over 1000 people from across the globe convene in Geneva, Switzerland, every summer to voice their concerns on indigenous rights. This pilgrimage to the week-long U.N. Working Group on Indigenous Populations has taken place every year since its inception in 1982, when only about thirty people attended. The increasingly global nature of political activism among indigenous peoples is evident in the growing number of participants at the Working Group, the United Nations’ recent creation of a Permanent Forum on Indigenous Issues to advise its Economic and Social Council, and the adoption of the U.N. Draft Declaration on the Rights of Indigenous Peoples by the Human Rights Council in 2006. The language of human rights has become a platform for organizing the international indigenous movement. Its rhetoric has enabled indigenous peoples to claim legitimacy for their campaigns for political, economic, and cultural autonomy. Political mobilization around rights claims has publicized the plight of indigenous peoples, from the Kayap´ o of Brazil to the Maori of New Zealand, and has given them a common voice with which to unite on a global level and lobby for domestic policy change.

Yet, what happens when these indigenous peoples return to their communities after having learned, employed, and even influenced international norms? Do they adapt local laws in relation to the international norms that they have internalized? For many decades, local communities like indigenous groups have been using the moral authority and persuasive power of international law as leverage against states. They have appropriated the global legal discourse of human rights as a tool for empowerment. But local groups do not just absorb international norms or redeploy them against states; they are also transformed by these norms in a variety of ways, particularly in their laws and governing institutions. The issue is: How are localities transformed by their contact with international norms? When an indigenous community is exposed to international human rights law (e.g., through a local nongovernmental organization (“NGO”) or their own participation in an international campaign), how does that affect its local customs and laws, including its negotiation with states? Ethnographic studies of local law-making within communities are needed to examine the microlevel mediation process among local, state, and international law.

Scholars have analyzed the diffusion of international norms across borders, but they tend to focus on states rather than localities. There is a gap in the legal scholarship on how norms are translated on the local level. International legal scholars have described the transnational legal process whereby transnational actors interact and cause international norms to become internalized into domestic structures. They have also analyzed how international law changes state behavior, through legal means like treaty ratification or social forces like acculturation. Political scientists have explained how transnational advocacy networks use international law to pressure states, and thus create a boomerang effect towards domestic policy change. They have also described how state governments become socialized to conform to international human rights norms. But what happens on the local level, when international norms become internalized in local legal systems? That is, how do communities give meaning to international norms in relation to state and local laws?

In an effort to address these inquiries, this Article examines the process of international norm diffusion on the ground—where international law is shaping how local actors construct their laws and legal institutions. Based on empirical evidence, I analyze how international norms can become embedded in an indigenous community and influence its law-making in a way that mediates between state and local laws. International norms can provide a mechanism not just for domestic reform, but also for local reform. Local actors may design innovative governing structures that borrow from state and international law while also adapting cultural norms.

I elaborate on this process of legal mediation by presenting a case study of the Pimicikamak Cree Nation (pronounced “Pi-mi-chi-ca-mak”), an indigenous people living in Cross Lake, a small town in Manitoba, Canada. This study is based on my ethnographic field research at the Cree reservation in 1999 and 2000, as well as follow-up research in the years since that time. Having suffered from the destructive effects of a hydroelectric dam constructed in the 1970s, the Cree have actively lobbied the Canadian government for the compensation promised to them over twenty-five years ago. Since 1998, they have appealed to the United Nations to pressure Canada and have invoked international law to assert their right to self-determination. As part of this process, the Cree have developed a unique government as a basis for their new relationship with Canada—one that demands respect for their fundamental human rights, while also incorporating aspects of Canadian law and adapting customary Cree law.

By designing a government that integrates Canadian and international law into their own legal institutions while also adapting Cree cultural norms, the Cree are engaging in legal mediation. This process describes a web of overlapping identifications with the local, state, and international legal spheres. Yet legal mediation refers to more than just an interaction between multiple legal orders in the same social field, referred to by some scholars as “legal pluralism.” It describes a process of negotiation among multiple normative commitments and legal entities. Under legal mediation, local actors play an important role in shaping how international norms become internalized within their communities. They influence how international human rights norms are received and incorporated in local institutions, and how they interact with state and non-state norms (e.g., religious norms or cultural practices).

The case of the Cree thus demonstrates how the global discourse of human rights is becoming incorporated into local communities as indigenous peoples are “redefining their projects in the global space of . . . human rights.” Their strategic use of human rights discourse is indicative of the growing role played by international law in their societies. International human rights law gives them political leverage when negotiating with the states in which they reside. It has also led groups like the Cree to adapt their customary law to accommodate their relationship to other legal institutions. The dialectical process of legal mediation, whereby indigenous groups shift between different normative communities, represents their multi-layered identifications within the local, state, and international spheres.

The remainder of the Article proceeds as follows. Part I reviews existing literature from international law and international relations on norm diffusion and internalization. I identify the gaps in the literature, including how norm internalization occurs in local settings. I then argue that ethnographic studies can shed light on these local processes, particularly how international human rights norms can shape law-making in local communities. When analyzing these processes, theories of legal pluralism provide useful insights. I review scholarship on legal pluralism and then build on these theories to discuss the model of “legal mediation.” Under this model, local actors are able to mediate between local law and state law by borrowing from international law. As I describe in Part I.B, communities, particularly indigenous groups, are also lobbying state and international institutions to recognize local norms and customary practices. Thus, not only are multiple types of legal norms interacting within local settings, but they are also shaping and being shaped by one another. Finally, I analyze how indigenous peoples are adapting their local laws as they internalize international norms. Part II offers ethnographic evidence of the diffusion of international norms in a local community. I first set out a brief narrative of the Pimicikamak Cree Nation, including the historical events that spurred its appeals to the United Nations. This case study exemplifies an indigenous people that is appealing to international law to win compensation from a state and to assert its right to self-government. As they speak the language of international human rights law, the Cree are promoting their use of customary law as a legitimate basis for their political autonomy. I then describe how the Cree are participating in transnational advocacy networks for indigenous rights and the environment. Lastly, I discuss how they are asserting their right as a people to self-determination, which they interpret as an on-going negotiation between multiple normative communities. In Part III, I analyze the Pimicikamak Cree Nation’s recently adapted local government as an example of legal mediation. I first describe how the Cree and other local communities are preserving cultural norms as they assert their right to self-government. I then analyze how they have adapted these norms to accommodate state laws, and have incorporated international norms into their official communications and local political discourse. Finally, I identify possible external and internal obstacles to legal mediation as I consider the ways in which this model could be most effectively utilized by local communities. . . .

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Introduction*

Developing countries account for seventy-five percent of the membership of the World Trade Organization (“WTO”) and are increasingly able to use their power to influence negotiations traditionally dominated by developed countries. Although the organization operates on a one-country-one-vote basis and on a consensus mechanism (which formally also considers members on an equal basis), the reality of negotiations and of the decision-making process is much more complex and susceptible to the arbitrage of economic power. As a result, in most instances, developing countries have to act in coalitions in order to gain sufficient leverage and some developing country members have little—if any—voice if they do not ally with others. Despite their increased number and activity in the WTO, developing countries still find themselves in a relatively marginalized position and experience difficulties in linking their development agenda to multilateral trade negotiations.

The recent emergence of a multitude of developing country coalitions reflects fundamental changes in the landscape of developing country positions in the General Agreement on Tariffs and Trade (“GATT”) and the WTO and shows that such coalitions are beginning to change the organization’s dynamics. For instance, the Hong Kong Ministerial meeting signaled some progress on issues of interest to developing countries largely as a result of a coordinated approach by developing countries under the aegis of larger developing states such as India, Brazil, and Egypt. The increasing heterogeneity of developing countries and their diverging interests also is reflected in the plethora of coalitions. Coalition strategies therefore appear promising for developing countries but they face serious hurdles.

Developing country coalitions have received some attention in the field of political science and international relations (see, in particular, Amrita Narlikar’s empirical and theoretical analysis of developing country coalitions in the GATT and WTO), but recent studies on this subject are relatively scarce. More empirical research currently is being undertaken, but the results are not yet available. This Article relies on the existing literature, as well as interviews conducted by the author with WTO negotiators and Secretariat members. The suggestions for reform that it makes hopefully will in turn generate more theoretical and empirical analysis as additional data becomes available both in the legal and international relations fields. This Article argues that developing country coalitions in the WTO are relevant not only from an international relations and political perspective, but also from a legal perspective. Indeed, coalitions both affect and are the product of the organization’s legal and institutional framework. Because it is crucial for developing countries to be able to act through coalitions, it is important to ensure that they have the legal instruments to do so. Yet in many areas, WTO law is not conducive to coalitions, particularly the types of coalitions that developing countries are likely to create. Moreover, the WTO and its members may in fact benefit from being more supportive — as a legal and institutional system — of developing country coalitions, inasmuch as the latter improve the qualitative and quantitative participation of members with limited resources, thereby potentially enhancing the organization’s legitimacy.

Narlikar establishes a typology of developing country coalitions in the WTO and its predecessor, the GATT, with the objective of determining the characteristics of successful coalitions and the impediments to forming and sustaining these coalitions. She takes an essentially endogenous perspective, examining coalitions for their intrinsic features. International relations analysis on coalitions generally focuses on characteristics of coalition members, and some theories have expanded to the interplay between domestic and international politics on the model of Putnam’s two-level game theory. In contrast, this Article seeks to assess coalition strategies in the regulatory context of trade negotiations and in the institutional framework of the WTO. Whereas Narlikar’s work is grounded in an international relations perspective, this Article examines the interaction between coalitions and the legal and regulatory environment in which they operate. Although the much-heralded shift from a power-dominated system to a law-based system with the advent of the WTO in 1995 has not put an end to politics, it has affected the dynamics of the multilateral trading system by imposing a more pervasive legal framework. Some international relations scholars also have noted the ability of international organizations to “transform potential or tacit coalitions into explicit ones.” Indeed, coalitions find themselves at the intersection between political bargaining and the legal and institutional architecture for such bargaining.

The thesis proposed here is two-fold. First, this Article suggests that the ability to sustain developing country coalitions depends in part on the WTO’s legal structure. In some cases, the legal framework supports developing country coalitions, while in other instances, it hinders developing countries’ abilities to sustain coalitions. Second, and correlatively, members whose interests might be more effectively served if they are promoted by a group strategy could benefit from a legal framework that better supports developing country coalitions or groupings.

This Article assesses the impact of the WTO’s legal structure on coalition building and offers some suggestions for evolution. If smaller or poorer developing countries are to participate more fully in multilateral trade negotiations and if this can better be done through alliances, it may well be that the organization will have to adapt its law and practice to become more coalition-friendly or risk further marginalizing a large part of its membership and stalling negotiations for all members. The first part presents an empirical analysis of developing country coalitions in the GATT and the WTO. It elaborates a typology of developing country coalitions. The second part assesses the WTO institutional structure for a coalition objective, analyzing the organization’s impact on each type of coalition identified in the first part. The second part also suggests possible structural adjustments to improve developing countries’ participation through coalitions. The third part looks beyond the organization’s institutional arrangements at how some trade instruments (preferences and bilateral or regional trade agreements) are used within the WTO context to counter coalition strategies. . . .

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Introduction*

Over the past sixty years, there has been an exponential growth in the number, scope, and influence of international organizations. This growth has greatly expanded the capacity of international organizations to commit acts that detrimentally affect the interests of States or individuals. As a result, it has become necessary to decide who is responsible, and liable to provide compensation, when an organization breaches international law. Reflecting this concern, the International Law Commission (“ILC”), in response to a request by the United Nations General Assembly, has begun drafting articles to codify the rules on the responsibility of international organizations. One of the most difficult issues under consideration by the ILC in this context is whether Member States bear secondary or concurrent liability to third parties for the acts of an international organization. The terms secondary liability and concurrent liability are used throughout this Note to refer to the attribution of responsibility to a State merely by virtue of its member-ship in an international organization. These forms of liability stand in contrast to the liability a State may incur for its own acts that breach international law.

In July 2006, the Drafting Committee of the ILC Working Group on Responsibility of International Organizations adopted draft articles dealing with the liability of Member States. These draft articles outline various situations in which the conduct of a Member State can cause it to become liable for the act of an international organization. However, the draft articles do not support the imposition of liability on Member States by virtue of membership alone. While the Working Group considered a wide range of matters in reaching this conclusion, some emphasis was placed on the policy consideration that secondary or concurrent liability would interfere with the autonomy of international organizations by encouraging interference from the Member States.

This policy consideration has been referred to so frequently in the literature on secondary and concurrent liability that it has obtained almost axiomatic status. It is often placed alongside a related concern that secondary or concurrent liability would undermine the separate personality of international organizations. The purpose of this Note is to examine whether these policy considerations provide a sound basis for denying secondary or concurrent liability. Part I of this Note clarifies the meaning of secondary and concurrent liability and distinguishes those concepts from other forms of liability a State may incur for the acts of an international organization. Part II outlines the views of the commentators who have contended that secondary or concurrent liability would be detrimental to the separate personality and independence of international organizations. Part III demonstrates that the effect of secondary or concurrent liability of Member States on the personality or independence of international organizations has been exaggerated. It does not follow from this conclusion that a general principle of Member State liability must be recognized under international law. However, unsubstantiated claims about a detrimental impact on the personality or independence of international organizations should not be permitted to influence the ILC deliberations on the legal question of secondary or concurrent liability. . . .

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Introduction*

With over one hundred international adjudicating bodies currently in existence, international courts have been created across the globe to prosecute the perpetrators of both international and national conflicts. The Nuremburg and Tokyo tribunals, created by the Allies after World War II, comprised the first “generation” of international courts. Forty years later, a second generation emerged with such institutions as the International Criminal Tribunal for Yugoslavia (“ICTY”), the International Criminal Tribunal for Rwanda (“ICTR”), and the International Criminal Court (“ICC”). The Extraordinary Chambers in the Courts of Cambodia (“ECCC”), established to prosecute the leaders of the brutal Khmer Rouge regime, is seen as part of a new, third generation of courts with significantly different infrastructure and sources of funding. As one of only four of its kind, the ECCC is referred to as a “hybrid” court and represents a new approach to international justice. Although there is no single model, hybrid courts generally combine the international, ad hoc nature of other tribunals—such as the ICTY and the ICTR—with domestic law and personnel. The ECCC, for example, incorporates aspects of Cambodian law into its proceedings and employs nationally appointed judges and prosecutors at the tribunal.

Blending aspects of international and national courts, hybrid tribunals also create a joint responsibility for funding. By dividing the financial obligations between a national government and an international organization like the United Nations, hybrid courts rely on the fundraising of two fundamentally different institutions, each of which has its own priorities and concerns. The Cambodian Royal Government announced last year that it could only contribute a fraction of its share. Reaction to this declaration—which came two years after the government assumed joint financial responsibility for the court and after the international community had already raised its share of the funding—revealed the frustration and miscommunication that can develop within a dual system. As hybrid courts represent the future of international adjudication, it is extremely important that they develop effective and sustainable funding mechanisms. This Note explores the possibilities of private funding for international hybrid courts in the context of Microsoft’s recent donation to the ECCC.

On January 10, 2007, the ECCC received its first private donation—$100,000 from Microsoft Singapore. Such a donation, coupled with ongoing negotiations between the ECCC and the Bill and Melinda Gates Foundation about providing additional funding, raises the possibility that the ECCC could turn to private donors to supplement a budget left partially unfunded by the Cambodian government.

In an era of increasing globalization and the expanding reach of multinational corporations, it is not surprising that the private sector plays an ever-growing role in global politics. Such a role must be under constant scrutiny by the tribunals themselves, however, to ensure that international bodies and tribunals not only remain responsible to their member states rather than to private parties but also render fair and impartial decisions. With no specific guidelines in the ECCC Law regulating gifts, the tribunal must be cautious in accepting private donations in order to avoid conflicts of interest and consequent real or perceived corruption.

This Note proposes that if the ECCC wishes to solicit private donations, it should establish an internal foundation to monitor how the funds are used. Such a foundation could process all private donations, thereby ensuring that corporate interests do not gain excessive influence over internal tribunal policy, member states remain accountable for the court, individual donations do not become personal bribes, and the reputation of the ECCC is not compromised. A foundation could also track how the funds are used, providing greater overall transparency for the activities of the ECCC. This Note will first present the financial structure of the ECCC, explaining the unique hybrid nature of the court and how private donations would fit within this structure. Next, it will examine the legal provisions of the ECCC Law regarding donations and analyze possible legal bars and other potential conflicts of interest. Finally, the Note will conclude with a concrete proposal for a foundation to accept private donations. . . .

* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.