International law interrupted - a case of selective adaptation.

• Author: Biukovic, Ljiljana

INTRODUCTION

There has been considerable debate within the international community on the proliferation of international treaty laws. (1) The Treaty Section of the Office of Legal Affairs of the United Nations registers approximately four thousand treaties and treaty-related actions annually. (2) As societies advance technologically and become more closely connected, international law is developing by creating new specialized rules and areas of legal practice which would facilitate such specialization, diversification and interconnectedness of economies, and social actions by creating adequate regulatory regimes. The field of international law has thus broadened significantly, embracing new fields of activities and establishing linkages to other disciplines and specialized areas of law. For example, international trade law is now related to environmental law, labour law and human rights law, to name but a few connections. (3) Consequently, in response to the needs created by globalization, international law is expanding, on the one hand, by unifying or harmonizing the rules that govern a wide range of social and economic activities around the world and, on the other hand, by fragmenting the international community by creating separate institutions with highly specialized and often complex rules and practices. (4)

The diversification and fragmentation of international institutions, norms, rules and practices, and the development of linkages and overlap between different legal specialties, have become phenomena that challenge the effectiveness and efficiency of international law. How can states manage to comply with the ever-increasing number of international laws and practices and the overlapping jurisdictions of tribunals in an environment that lacks a hierarchy of normative order and a general legislative body? (5) How can states preserve their domestic regulatory sovereignty, autonomy and diversity while complying with their international obligations they chose to undertake in signing on and ratifying international treaties? (6) How can they ensure the efficient internalization of international norms and standards and maintain compliance with international rules that have underpinning norms which are significantly different from the states' own domestic norms and practices?

This article outlines one possible discourse on the process of internalization of international law, "a coping strategy" (7) particularly utilized by developing states and societies to balance local needs against the requirement for compliance with external or non-local rules. It grew out of a series of examinations by a group of scholars from Australia, Canada, China, and Japan involved in the Cross-Cultural Dispute Resolution project on the selective adaptation discourse that provides an alternative perspective on how the rules of international law are locally contextualized. The article first explains the conceptual framework of selective adaptation and then proceeds to summarize the general hypotheses of the discourse. Next, it illustrates how selective adaptation is applied in international trade law and international human rights law and it concludes by indicating the manner and circumstances under which selective adaptation affects the dynamics of the application and enforcement of international law.

1. International Law Compliance and Related Legal Scholarship

   As indicated earlier, the current debate over the efficiency of international law is framed by our understanding of the influence that globalization is having on the development of the international community and its social and economic actions. Globalization is often defined in broad terms as a closer integration, interaction and interdependence of countries, economies and peoples of the world. This interaction is brought about by the unprecedented development of science and technology and facilitated by the reduction in the costs of communication and transportation and by the removal of barriers to the movement of people, goods, services, capital and information across state borders) Law, which always follows society and the economy, has also globalized and moved across borders, accompanied by the necessary institutional framework. (9) Law is no longer a product of the domestic regulatory regimes of individual states, nor is its enforcement solely within the power of individual states. Numerous international institutions and regulatory agencies have emerged, joining the existing state institutions and agencies in ensuring international cooperation and compliance with the principles of non-local laws.

   This increase in the number of regulatory regimes has had some unifying aspects but has also led to the fragmentation of international law and an increased interest in the understanding of the legal, political, social and institutional context within which international law is created and operates. (10) Studies now focus not only on global governance but also on local assimilation of global international rules. We now also concentrate on the analysis of local practices rather than on international rules and standards.

   Ultimately, concerns over non-compliance with international laws and standards lead to an examination of the dynamic process of the reception of non-local rules (i.e. international and/or foreign rules) by assimilating their underlying norms into the local legal and political culture and the corresponding local institutional structure. As a result, numerous discourses explaining how international laws change their meaning in the context of different cultures and local practices have emerged. Two such discourses seem to be of particular importance for framing the paradigm of selective adaptation. The first is the theory of legal transplantation which is rooted in the sociology of legal adaptation. The second discourse is embedded in the normbased compliance theories of international law. Both use culture as a metaphor for locality, and locality as a further metaphor for change. (11)

   Briefly, theories of legal transplantation analyze legal change or reform in states' domestic legal systems as a dynamic process of borrowing or transplanting laws, principles, rules and institutions from other legal systems rather than one of creating them in the specific local context. (12) The phenomenon of legal transplantation has occurred consistently throughout history as a form of interaction of legal systems and traditions: from the reception of Roman law in medieval Europe, through the expansion of Western European law (common and civil) across other continents during the colonial era, right up to the recent reception of Western legal models in developing countries with transition economies. (13) In this sense, according to some theories, the post-colonial process of transplantation was controlled by the elites in the borrowing countries that chose to speed up their domestic economic and social development and political change by borrowing laws and institutions from countries that had already achieved the desired level of development. (14)

   There are two main points to the theories of legal transplantation. The first is that the process of legal transplantation is not simply the mechanical transplantation of laws and institutions from one legal system into another but that it is influenced by local conditions and the mediating actions of individuals involved in the process of transplantation. (15) The receiving state and society is neither homogenous nor a passive recipient; it consists of competing agents of transplantation (practicing lawyers, legislators and legal academics, or "formants") (16) who are interacting with each other and contextualizing the received laws differently because each have a different understanding of the received rules and different incentives to comply with them. When laws travel from one system to another they are not simply transplanted, but rather transformed and contextualized in accordance with local conditions, including culture, language, the political matrix and the level of economic development. (17) Consequently, the original context of transplanted law changes due to local cultural adaptation, even in cases where the laws are transplanted verbatim. (18)

   The second point made by some theories of legal transplantation is that some legal concepts can be more easily transplanted without modification than others because, as Twining says, some legal concepts have a transnational or cross-cultural content that make them readily more transferable from the original context or normative system to others. (19) Twining mediates cultural relativism by indicating that concepts based on empirically standardized categories travel better than those based on complex normative categories that are dependent on cultural, social and economic context. (20) Indeed, numerous instruments of international trade law that standardize cross-border transactions are the result of the transplantation and convergence of related, specialized national laws (for example, the rules on promissory notes and letters of credit). This observation is important because it suggests that even though globalization is driven first and foremost by commercial rationale and international trade, which has already been operating on the basis of widespread common standards, some consideration should be given to the local conditions that determine the level of adoption of and compliance with international trade laws and their underlying norms.

   The norm-based theories on compliance with international law are the second discourse that shares premises on the reality of domestic interpretation and application of non-local rule regimes with the selective adaptation paradigm. (21) In sum, norm-based theories argue that the level of commitment to international laws and rules depends on: perceptions about the legitimacy of the outside initiatives and, in particular, on the...