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ENTANGLED LEGALITIES BEYOND
THE STATE

Law is usually understood as an orderly, coherent system, but this volume

shows that it is often better understood as an entangled web. Bringing
together eminent contributors from law, political science, sociology,
anthropology, history and political theory, it also suggests that entangle-
ment has been characteristic of law for much of its history. The book
shifts the focus to the ways in which actors create connections and
distance between different legalities in domestic, transnational and inter-
national law. It examines a wide range of issue areas, from the relationship
of state and indigenous orders to the regulation of global ﬁnancial
markets, from corporate social responsibility to struggles over human
rights. The book uses these empirical insights to inform new theoretical
approaches to law, and by placing the entanglements between norms from
different origins at the centre of the study of law, it opens up new avenues
for future legal research. This title is also available as Open Access.

  is a professor of international law at the Graduate Institute

for International and Development Studies in Geneva.

The series provides unique perspectives on the way globalization is radically

altering the study, discipline, and practice of law. Featuring innovative books
in this growing ﬁeld, the series explores those bodies of law which are
becoming global in their application, and the newly emerging interdepend-
ency and interaction of different legal systems. It covers all major branches of
the law and includes work on legal theory, history, and the methodology of
legal practice and jurisprudence under conditions of globalization. Offering a
major platform on global law, these books provide essential reading for
students and scholars of comparative, international, and transnational law.
Series Editors
M. E. A. Goodwin
Tilburg University
Randall Lesaffer
Tilburg University
David Nelken
King’s College London
Han Somsen
Tilburg University

Books in the Series

Intimations of Global Law
Neil Walker
Legalized Families in the Era of Bordered Globalization
Daphna Hacker
Transnational Sustainability Laws
Phillip Paiement
The Sociology of Law and the Global Transformation of Democracy
Chris Thornhill
Authority and the Globalisation of Inclusion and Exclusion
Hans Lindahl
Property Law in a Globalizing World
Amnon Lehavi
The Law of the List: UN Counterterrorism Sanctions and the Politics of
Global Security Law
Gavin Sullivan
Democratic Crisis and Global Constitutional Law
Christopher Thornhill
The Redress of Law: Globalisation, Constitutionalism and Market Capture
Emilios Christodoulidis
9/11 and the Rise of Global Anti-Terrorism Law
Arianna Vedaschi and Kim L. Scheppele
On Tyranny and the Global Legal Order
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ENTANGLED LEGALITIES
BEYOND THE S TATE

Edited by
NICO KRISCH
Graduate Institute of International and Development Studies, Geneva

477 Williamstown Road, Port Melbourne, VIC 3207, Australia

314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India
103 Penang Road, #05–06/07, Visioncrest Commercial, Singapore 238467

Cambridge University Press is part of the University of Cambridge.

It furthers the University’s mission by disseminating knowledge in the pursuit of
education, learning, and research at the highest international levels of excellence.

www.cambridge.org
Information on this title: www.cambridge.org/9781108843065
DOI: 10.1017/9781108914642
© Cambridge University Press 2022
This work is in copyright. It is subject to statutory exceptions
and to the provisions of relevant licensing agreements;
with the exception of the Creative Commons version the link for which is provided below,
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An online version of this work is published at doi.org/10.1017/9781108914642 under a Creative Commons
Open Access license CC-BY-NC-ND 4.0 which permits re-use, distribution and reproduction in any medium
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When citing this work, please include a reference to the DOI 10.1017/9781108914642.
First published 2022
A catalogue record for this publication is available from the British Library.
Library of Congress Cataloging-in-Publication Data
Names: Krisch, Nico, editor.
Title: Entangled legalities beyond the state / edited by Nico Krisch, Graduate Institute of International and
Development Studies, Geneva.
Description: Cambridge, United Kingdom ; New York, NY : Cambridge University Press, 2022. |
Series: Global law series | Includes papers “presented . . . the Hong Kong annual conference
of the International Society of Public Law, and also at a conference on ‘Multiple Legalities:
Conflict and Entanglement in the Global Legal Order’ which I convened with
Hannah Birkenkӧtter from Humboldt University as part of the OSAIC group”–ECIP preface. |
Includes bibliographical references and index.
Identifiers: LCCN 2021019498 (print) | LCCN 2021019499 (ebook) |
ISBN 9781108843065 (hardback) | ISBN 9781108823791 (paperback) |
ISBN 9781108914642 (epub)
Subjects: LCSH: Legal polycentricity–Congresses. | Law and globalization–Congresses. |
International and municipal law–Congresses. | Conflict of laws–Congresses.
Classification: LCC K236 .E58 2022 (print) | LCC K236 (ebook) | DDC 340.9–dc23
LC record available at https://lccn.loc.gov/2021019498
LC ebook record available at https://lccn.loc.gov/2021019499

ISBN 978-1-108-84306-5 Hardback

ISBN 978-1-108-82379-1 Paperback
Cambridge University Press has no responsibility for the persistence or accuracy
of URLs for external or third-party internet websites referred to in this publication
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CONTENTS

List of Contributors viii

Preface xi
List of Abbreviations xiv
1 Framing Entangled Legalities beyond the State 1
 
  Entangling State Law 33
2 Denial, Deferral and Translation: Dynamics of Entangling
and Disentangling State and Non-state Law in
Postcolonial Spaces 35
 
3 To Be Is to Be Entangled: Indigenous Treaty-Making,
Relational Legalities and the Ecological Grounds of Law 59
 
4 And an Algorithm to Entangle Them All? Social Credit,
Data-Driven Governance and Legal Entanglement in
Post-law Legal Orders 79
 ˊ 
5 Belt, Road and (Legal) Suspenders: Entangled Legalities on the
‘New Silk Road’ 107
 
  International Law and Its Interfaces 131
6 Giving Due Consideration: A Normative Pathway between UN
Human Rights Treaty-Monitoring Bodies and
Domestic Courts 133
 

7 The Social Life of Entanglements: International

Investment and Human Rights Norms in and
beyond ISDS 162
 
8 International Trade Law: Legal Entanglement on the WTO’s
Own Terms 193
  
  Weaving Transnational Legalities 227
9 Targeting Bad Apples or the Whole Barrel? The Legal
Entanglements between Targeted and Comprehensive Logics
in Counter-Proliferation Sanctions 229
    
10 Seamstress of Transnational Law: How the Court of
Arbitration for Sport Weaves the Lex Sportiva 260
 
11 The Struggle for International Financial Standards: An
Historical Analysis of Entangling Legalities in Finance 289
 
12 Hidden in the Shades: Patterns of Entanglement within the
Web of Corporate Social Responsibility Law 318
ˊ š č    
  Situating Entanglements 351
13 Entangled Legalities beyond the (Byzantine) State: Towards a
User Theory of Jurisdiction 353
 
14 Entanglement of State and Indigenous Legal Orders
in Canada 376
    
15 Entangled Hopes: Towards Relational Coherence 399
 
16 Tertiary Rules 424
 

17 A Reconstruction of Transnational Legal Pluralism and

Law’s Foundations 449
 . 

Index 478

 , Associate Professor at Faculty of Law, McGill

University. PhD (University of Sydney), LLB (University of Sydney),
BSc (physics, University of Sydney).

 ˊ , Professor of Law and International Affairs,

Pennsylvania State University. BA (Brandeis University), MPP
(Harvard University Kennedy School of Government), JD (Columbia
University).

 , Assistant Professor in Politics and International

Relations, Free University of Berlin. PhD (Free University of Berlin),
MPhil (political theory, University of Oxford), BA (politics and develop-
ment studies, SOAS, University of London).

 , Professor, Bessie and Michael Greenblatt QC Chair in

Public and International Law at the Hebrew University of Jerusalem
Faculty of Law and Department of International Relations; Academic
Director of the Minerva Center for Human Rights, Hebrew University of
Jerusalem. SJD (University of Toronto), LLB (Hebrew University of
Jerusalem), BA (Department of International Relations, Hebrew
University of Jerusalem).

 , PhD candidate in international law at the

Graduate Institute of International and Development Studies (IHEID).
MA (international law, IHEID), BA (political science and international
relations, University of Padua).

 , Professor of Management and Associate Dean for

Regional Innovation Practice, University of British Columbia.

viii

 , Senior Researcher at the T.M.C. Asser Instituut. PhD

(European University Institute), MA (law and political science, Paris 1
Panthéon-Sorbonne), MA (law, University of Cologne), MA (law,
European University Institute).

 , Professor, Chair for Political Anthropology at the

Institute of Social Anthropology at the University of Bern. PhD (soci-
ology, Free University of Berlin).

 , Associate Professor in the Department of

Philosophy at York University, Toronto. PhD (philosophy, McMaster
University), MA (philosophy, McMaster University), BA (philosophy
and law in society, University of New Brunswick).

 , Professor in Medieval History, University of St

Andrews, Director of the University of St Andrews’ Institute of Legal and
Constitutional Research and Postgraduate Convenor of the MLitt in
Legal and Constitutional Studies. PhD (University of Cambridge), MA
(University of Cambridge), BA (University of Cambridge).

 , Assistant Professor of Public International Law

and coordinator of the Master’s Program in Public International Law,
Utrecht University. PhD (Kyoto University), LLM (London School of
Economics), MA (law, University of Shefﬁeld).

 , Professor of International Law at the Graduate Institute

of International and Development Studies (IHEID). PhD (law, University
of Heidelberg).

 , Professor in the Department of Anthropology

and Sociology and Director of Research at the Graduate Institute of
International and Development Studies (IHEID). PhD (Princeton
University).

 , Director at the Max Planck Institute for Comparative

and International Private Law in Hamburg, Global Law Professor at
Queen Mary University of London and Professor of Law at Hamburg
University. LLM (University of Cambridge).

ˊ š č, PhD candidate in international law at the

Graduate Institute of International and Development Studies (IHEID).
LLM (University of Exeter), LLB (King’s College London).

 , postdoctoral researcher at the Global

Governance Center, Graduate Institute of International and
Development Studies (IHEID). PhD (IHEID).

  , PhD candidate in international law at the Graduate

Institute of International and Development Studies (IHEID). MA (inter-
national law, IHEID), BA (political science and law, Ludwig Maximilian
University of Munich).

 . , John S. Lehmann University Professor at

Washington University School of Law. BSc (University of Oregon), JD
(Boston University School of Law), SJD (Harvard Law School).

Entanglement may appear a strange term for an inquiry in law. Many will
think it does not have anything to do with law at all, but rather with
threads, nets or wire. Some may think it has to do with relationships –
especially complicated ones – but not the kinds of relationships that help
us to make sense of legal structures. Both views have a point, and
paradoxically pursuing legal entanglements is attractive in part because
they have a point. What we try to do with this volume is to take us away
from the familiar, to break with some traditional frames, and thus to pave
the way for thinking afresh about law, especially law beyond the conﬁnes
of the state.
In this endeavour, ‘entanglement’ helps not only to unsettle but also to
reconstruct. By pointing us towards relationships, it helps to shift our
gaze to the ways in which legal norms and legal systems are not self-
standing entities but are instead tied up in relationships with others
(other norms and legal systems) that often are crucial to understanding
the identity of each part as well as the character of the whole. In many
contexts of legal practice, litigants draw on norms from a wide variety of
origins – domestic and international, sub-state and transnational, public
and private – to persuade courts of their cases. Law, whether in ﬁnance,
environment, human rights, trade, sports or corporate accountability, is
not one law but is pieced together out of a great many layers by skilled
attorneys, civil society actors, business representatives and government
lawyers. In the end, law is the product of the ways in which the relation-
ships of its different parts are construed.
Using the notion of entanglement is a way of highlighting the inter-
woven character of much of law, and it urges us to understand better on
which terms such an entanglement takes place. This is what the present
volume hopes to achieve. Bringing together a stellar group of scholars –
from law, political science, sociology, anthropology and history – it
shows us how actors entangle and disentangle law in a variety of con-
texts, and how this forces us to change the way we should think about law
xi

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xii 
and legal order more broadly. It takes into view a highly diverse set of
issues – ranging from family law disputes in Bangladesh to the Chinese
Belt and Road Initiative and the making of global standards by the
Financial Stability Board – and it uses insights about legal practices in
these contexts to advance our theorization of law. In all of this, law
appears neither as one nor as many, but as somewhere in-between.
Entanglement points to this in-between character and highlights the
challenge we face when trying to square such practices into the frame
of unitary, well-ordered legal systems we are accustomed to as a result of
the legal theories of the twentieth century.
The volume has been a long time in the making. The idea of entangle-
ments was born in the discussions Francesco Corradini, Lucy Lu Reimers
and I had on our ‘Interface Law’ project – a project that was itself part of
a broader, interdisciplinary research group in which we were trying to
understand ‘Overlapping Spheres of Authority and Interface Conflicts in
the Global Order’ (OSAIC, because everything these days needs an
acronym). In our project, we were trying to reconstruct the norms actors
use to structure the relations between different legal orders, but we soon
realized that we could not capture much of what we were seeing with the
typical vocabulary of conflict and reception norms. We thus needed to
look elsewhere and began to draw more widely from legal anthropology
and sociology, from historical studies and from legal theories long out-
side the mainstream. Students of legal pluralism, of postmodern inter-
legalities or of historical legal entanglements had begun to describe
aspects of the phenomenon we were interested in, and we built on their
findings in order to generate a broader account of how law was shaped by
interactions between norms from different contexts beyond the typical
frame of legal systems.
In the spring of 2018, we gathered a group of colleagues in Geneva for
a workshop exploring further the entanglements we began to see. Many
of these colleagues, and a few new members of the group, have taken our
discussions further and contributed to this volume. We presented some
of our work collectively at the Hong Kong annual conference of the
International Society of Public Law, and also at a conference on ‘Multiple
Legalities: Conflict and Entanglement in the Global Legal Order’, which
I convened with Hannah Birkenkötter from Humboldt University of
Berlin as part of the OSAIC group. I am grateful to the participants in
these different events for their intense engagement with our ideas
and papers.

ACHPR African Charter on Human and People’s Rights

AI artificial intelligence
AIDCP Agreement on the International Dolphin Conservation Program
AML anti-money laundering
AML/CFT anti-money laundering and countering the financing of terrorism
ANSI American National Standards Institute
BCBS Basel Committee on Banking Supervision
BIS Bank for International Settlements
BITs bilateral investment treaties
BLA Baloch Liberation Army
BRI Belt and Road Initiative
CAC Codex Alimentarius Commission
CAS Court of Arbitration for Sport
CAT Committee against Torture
CBD Convention on Biodiversity
CCSI Columbia Center on Sustainable Investment
CED Committee on Enforced Disappearances
CEDAW Convention on the Elimination of All Forms of Discrimination
against Women
CERD Committee on the Elimination of Racial Discrimination
CESCR Committee on Economic, Social and Cultural Rights
CETA Comprehensive Economic and Trade Agreement
CFT countering the financing of terrorism
CIEL The Centre for International Environmental Law
CITES Convention on International Trade in Endangered Species
CJEU Court of Justice of the European Union
CMW Committee on Migrant Workers
CPC Communist Party of China
CPF counter-proliferation finance
CPSS Committee on Payment and Settlements Systems
CRC Committee on the Rights of the Child
CRPD Committee on the Rights of Persons with Disabilities

xiv

Framing Entangled Legalities beyond the State

 

1.1 Introduction
Law tends to make its appearance in the singular. We think of a legal
order as a relatively integrated whole, as a system in which the different
parts play a defined role and display a certain amount of coherence, if
only because there are rules that regulate what happens when different
norms conflict and because there are judges to decide unclear cases. We
also expect law to be coherent and orderly as a matter of normative
judgement – under the rule of law, we need to be able to know what the
law requires from us. The unitary legal system then appears as both an
analytical frame and an evolutionary achievement.
Yet in many contexts, law does not actually appear in the singular but
in the plural. Norms from different origins become relevant in the same
situation, and they often come with divergent prescriptions or at least
orientations. Their relations are not predefined but remain to be deter-
mined through the social interplay of actors. State law interacts with
local, Indigenous and religious law; norms from international and trans-
national law are used alongside domestic law and national regulation.
These norms are not limited to neatly separated spheres but instead often
address, directly or indirectly, the same set of actors and the same kind of
behaviour. Yet they do not form part of a common legal order – they are
entangled rather than integrated.
Such entanglement is the focus of the present volume. We regard
entanglement as a common state of affairs in law – and likely a more
common one than legal ‘systems’ with aspirations of hierarchy, order and
coherence, as depicted in the standard image of law in the context of the
modern, Western nation state. Legal entanglement was typical before the
modern state arose, has been present within many states throughout, and

1.2 Legal Entanglement

The notion of entanglement is not typically used in the legal context. It is
common in quantum physics where it denotes a phenomenon in which
different particles relate to one another in such a way that the ‘state of
each of them cannot be described independently of the state of the
other(s)’.1 In a related vein, in the study of history the notion of ‘entan-
gled histories’ has come to emphasize the importance of relations
between interconnected societies. This approach was originally driven

1
See Wikipedia entry on ‘quantum entanglement’, https://en.wikipedia.org/wiki/Quantum_
entanglement.

2
S. Randeria, ‘Geteilte Geschichte und verwobene Moderne’, in N. Jegelka, H. Leitgeb, and
J. Rüsen (eds), Zukunftsentwürfe: Ideen für eine Kultur der Veränderung (Campus Verlag,
1999), pp. 87–96.
3
J. Kocka, ‘Comparison and Beyond’ (2003) 42 History and Theory 39–44, at 42.
4
S. Conrad and S. Randeria, ‘Einleitung: Geteilte Geschichten - Europa in einer postkolo-
nialen Welt’, in S. Conrad, S. Randeria and R. Roemhild (eds), Jenseits des Eurozentrismus
(Campus Verlag, 2013), pp. 32–70, at p. 40.
5
M. Werner and B. Zimmermann, ‘Beyond Comparison: Histoire Croisée and the Challenge
of Reﬂexivity’ (2006) 45 History and Theory 30–50, at 38.
6
P. W. Stockhammer, ‘Conceptualizing Cultural Hybridization in Archaeology’, in P. W.
Stockhammer (ed.), Conceptualizing Cultural Hybridization: A Transdisciplinary
Approach (Springer, 2011), pp. 43–58, at pp. 47–8.
7
K. Günther and S. Randeria, Recht, Kultur und Gesellschaft im Prozess der Globalisierung
(Programmbeirat der Werner Reimers Konferenzen, 2001), p. 85.

8
S. E. Merry, ‘Legal Pluralism’ (1988) 22 Law & Society Review 869–96, at 873; J. Grifﬁths,
‘What Is Legal Pluralism?’ (1986) 18 The Journal of Legal Pluralism and Unofﬁcial Law
1–55, at 17–18.
9
B. de Sousa Santos, ‘Law: A Map of Misreading – Toward a Postmodern Conception of
Law’ (1987) 14 Journal of Law and Society 1279–302; B. de Sousa Santos, Toward a New
Legal Common Sense: Law, Globalization, and Emancipation (Cambridge University
Press, 2002).
10
Günther and Randeria, Recht, Kultur und Gesellschaft im Prozess der Globalisierung; R.
Michaels, ‘Global Legal Pluralism’ (2009) 5 Annual Review of Law & Social Science 1–35;
P. Zumbansen, ‘Transnational Legal Pluralism’ (2010) 1 Transnational Legal Theory
141–89; P. S. Berman, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders
(Cambridge University Press, 2012).
11
T. Duve, ‘Entanglements in Legal History: Introductory Remarks’, in T. Duve (ed.),
Entanglements in Legal History: Conceptual Approaches (Max Planck Institute for
European Legal History, 2014), pp. 3–25, at p. 8.
12
Duve (ed.), Entanglements in Legal History.
13
Stockhammer, ‘Conceptualizing Cultural Hybridization in Archaeology’, p. 50.

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discourses intersecting here) continue to emphasize traditional frames.14
Many pluralists have long lamented the fact that legal discourse ignored
such growing mutual influences and remained wedded to ideas of closed,
unitary legal orders.15
Yet also from the perspective of the actors involved in them, legal
orders have always had aspects defining their relations with other bodies
of norms. Conflict-of-law norms for foreign law and norms about the
reception of international law in domestic legal orders are the most
prominent examples.16 If anything, globalization has enhanced the pres-
sure on defining and developing these interface norms further – the
global universe of norms is ever more populated, with overlapping norms
and authority spheres in many, if not most, issue areas. Participants in
legal discourses can choose to ignore this multiplicity and merely focus
on their own legal order, but when other norms have strong social
backing ignoring them can be costly in terms of legitimacy and often
also compliance. In a context of multiplicity, defining relations becomes
central for actors to stake out their positions.17
As a result, bodies of norms become ‘entangled’ not only as a matter of
fact, but also in discursive construction. It is such connections which we,
unlike much of the classical pluralist literature, take into focus in this
volume. Actors – litigants, judges, dispute settlers, observers, addressees –
make claims about the relation of norms from different backgrounds,
and they thus define and redefine the relative weights and interconnec-
tion between the norms at play. They also define the extent to which
norms are perceived to form part of broader assemblages – in the
relatively stable and firm mode of modern state legal orders, or in
more porous ways, with a more open interplay of norms and character-
ized more through their linkages across boundaries than any strong
form of belonging to an order as such.18 The production of tertiary

14
Günther and Randeria, Recht, Kultur und Gesellschaft im Prozess der Globalisierung.
15
See, e.g., G. Teubner, ‘The King’s Many Bodies: The Self-Deconstruction of Law’s
Hierarchy’ (1997) 31 Law & Society Review 763–88.
16
See Chapter 16 by Michaels.
17
See also M. Delmas-Marty, Ordering Pluralism: A Conceptual Framework for
Understanding the Transnational Legal World (Bloomsbury, 2009); N. Krisch, Beyond
Constitutionalism: The Pluralist Structure of Postnational Law (Oxford University Press,
2010), chapter 8.
18
The notion of ‘bodies of norms’ is meant to capture this possibility of looser assemblages,
the boundaries and strength of which are themselves produced through discourses in and
around law. It is also meant to capture that norms tend to come in clusters or patterns,
especially when they are institutionally produced.

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  
norms – norms about the recognition of one legal order by another, as in
Ralf Michaels’ chapter – is one example here. The different contributions
to the volume trace the ways in which relations between norms from
different origins are construed in social practice – thus taking a primarily
external perspective, though interested in the forms participants in legal
discourses have at their disposal.
When we focus on legal entanglement here, we mean such discursive
entanglement: the universe of statements that link different bodies of
norms with one another. This is similar to the ‘relational’ (as opposed to
‘material’) entanglement in cultural studies: an entanglement in which
the difference in origin remains visible even if the object is embedded in a
different practice.19 In a context of growing multiplicity, this entangle-
ment becomes stronger – where various norms are seen to apply to the
same situation, actors will often be forced to clarify the relation they see
between them, and we move towards a greater ‘centrality of the
margins’.20 As actors engage in this practice, they also redeﬁne the overall
order as such: they construe the weight of different norms in that order,
the relative strength of their claims over behaviour or institutions. And
through this, they remake the law. If we understand law as ultimately
socially constructed,21 a shift in the ways in which actors relate different
parts of the legal order to one another reshapes the law itself.
Where entanglement is particularly pronounced, we might even end
up in a situation in which – just as in quantum physics – ‘the state of each
[body of norms] cannot be described independently of the state of the
other(s)’;22 a situation of enmeshment, or even the creation of a new,
hybrid form. But entanglement, in the way we use it here, remains
distinct from full integration into a new form. Where norms are widely
accepted as part of a common legal order, they are integrated rather than
entangled. Likewise, when one body of norms is not linked with another
by relevant actors, they remain separate. Entanglement comes in different
degrees, but it sits between, and is distinct from, both separation and
integration.

19
Stockhammer, ‘Conceptualizing Cultural Hybridization in Archaeology’, p. 50.
20
N. Walker, ‘Beyond Boundary Disputes and Basic Grids: Mapping the Global Disorder of
Normative Orders’ (2008) 6 International Journal of Constitutional Law 373–96.
21
See, e.g., B. Z. Tamanaha, A General Jurisprudence of Law and Society (Oxford University
Press, 2001).
22
See Wikipedia entry on ‘quantum entanglement’, https://en.wikipedia.org/wiki/
Quantum_entanglement.

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     
1.3 Entanglement before and around the State
Entanglement was, by all accounts, a defining feature of many legal
orders before the emergence and consolidation of the modern state.
Even Roman law, often associated with system and coherence, is an
impressive example of multiple fora, rules and practices, between which
litigants and dispute settlers navigated their way. In Chapter 13, Caroline
Humfress gives a vivid account of this complex interplay, tracing how
actors reasoned out the application of different norms and, especially at
the margins of the late Roman Empire, generated connected, but not
integrated, legal orderings of their own.
Yet perhaps the most prominent expression of entangled legalities is to
be found in medieval Europe. From the eleventh century onwards, law
became increasingly systematized through legislation and codification,
but the corpus iuris of much secular law was still made up of rules drawn
(‘received’) from a wide variety of sources, including Roman law and
customary usages. These rules retained their character as Roman law, ius
commune, etc., but they were transformed through the reception process
in a way that made them more compatible than they might have other-
wise been.23 Codifications, reflections of the law applied on the ground,
consequently contained elements from many different bodies of norms.
The eleventh-century Usatges de Barcelona used rules of Visigoth and
Roman origin just as well as secular and ecclesiastical ones; the German
Sachsenspiegel of the early thirteenth century meshed an account of local
custom with rules from imperial legislation and some from canon law. In
the French law of the period, multiple local customs stood alongside
royal law, with royal courts applying only those customs they deemed
‘reasonable’, often taking as guidance canon law or the learned Roman
law taught at universities.24
Scholars have described the resulting structure as a ‘patchwork of
accommodations’, in stark contrast with the idea of an integrated order
or system.25 Judges in this structure could not merely rely on one set of
rules but had to navigate between norms from a wide variety of contexts,

23
H. J. Berman, Law and Revolution: The Formation of the Western Legal Tradition
(Harvard University Press, 1983), p. 2.
24
Ibid., pp. 470–1, 504, 511.
25
S. P. Donlan and D. Heirbaut, ‘“A Patchwork of Accommodations”: Reﬂections on
European Legal Hybridity and Jurisdictional Complexity’, in S. P. Donlan and
D. Heirbaut (eds), The Laws’ Many Bodies: Studies in Legal Hybridity and Jurisdictional
Complexity, c1600–1900 (Duncker & Humblot, 2015), p. 9.

26
Donlan and Heirbaut, ‘“A Patchwork of Accommodations”’, p. 21.
27
See the contributions in Donlan and Heirbaut (eds), The Laws’ Many Bodies.
28
See N. Jansen, ‘Law and Political Domination: Historical Observations, Conceptual
Reﬂections, and Some Questions for Discussion’ (2018) 16 International Journal of
Constitutional Law 1176–85; M. Löhnig, ‘Killing Legal Complexity: The Jurisprudence
of the German Reichsgericht in the First Years of its Existence’, in S. P. Donlan and
D. Heirbaut (eds), The Laws’ Many Bodies: Studies in Legal Hybridity and Jurisdictional
Complexity, c1600–1900 (Duncker & Humblot, 2015), pp. 249–70.
29
A. Wijffels, ‘Ancien Régime France: Legal Particularism under the Absolute Monarchy’,
in S. P. Donlan and D. Heirbaut (eds), The Laws’ Many Bodies: Studies in Legal Hybridity
and Jurisdictional Complexity, c1600–1900 (Duncker & Humblot, 2015), pp. 81–108; B.
Durand, ‘Pluralism in France in the Modern Era – Between the “Quest for Justice” and
“Uniformity Through the Law”: The Case of Roussillon’, in S. P. Donlan and D. Heirbaut
(eds), The Laws’ Many Bodies: Studies in Legal Hybridity and Jurisdictional Complexity,
c1600–1900 (Duncker & Humblot, 2015), pp. 169–92.
30
See L. Benton and R. J. Ross (eds), Legal Pluralism and Empires, 1500–1850 (New York
University Press, 2013); J. Duindam, J. D. Harries, C. Humfress and H. Nimrod (eds),
Law and Empire: Ideas, Practices, Actors (Brill, 2013).

31
P. Oestmann, ‘The Law of the Holy Roman Empire of the German Nation’, in
H. Pihlajamäki, M.D. Dubber, and M. Godfrey (eds), The Oxford Handbook of
European Legal History (2018), pp. 731–59.
32
R. J. Ross and P. J. Stern, ‘Reconstructing Early Modern Notions of Legal Pluralism’, in
L. Benton and R. J. Ross (eds), Legal Pluralism and Empires, 1500–1850 (New York
University Press, 2013), pp. 109–42, at p. 130.
33
K. Barkey, ‘Aspects of Legal Pluralism in the Ottoman Empire’, in L. Benton and R. J.
Ross (eds), Legal Pluralism and Empires, 1500–1850 (New York University Press, 2013),
pp. 83–107, at pp. 94–103. See also S. E. Merry, ‘Colonial Law and Its Uncertainties
Forum: Maneuvering the Personal Law System in Colonial India: Comment’ (2010) 28
Law and History Review 1067–72, at 1068.
34
Merry, ‘Legal Pluralism’; M. A. Helfand (ed.), Negotiating State and Non-state Law: The
Challenge of Global and Local Legal Pluralism (Cambridge University Press, 2015).
35
See, e.g., M. A. Helfand, ‘Religious Arbitration and the New Multiculturalism:
Negotiating Conﬂicting Legal Orders’ (2011) 86 NYU Law Review 1231; M. Maclean
and J. Eekelaar (eds), Managing Family Justice in Diverse Societies (Bloomsbury, 2013).
36
See, e.g., J. Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity
(Cambridge University Press, 1995); K. Gover, Tribal Constitutionalism: States, Tribes,
and the Governance of Membership (Oxford University Press, 2010).

37
See, e.g., Berman, Global Legal Pluralism.
38
N. MacCormick, Questioning Sovereignty: Law, State, and Nation in the European
Commonwealth (Oxford University Press, 1999); N. Krisch, ‘Europe’s Constitutional
Monstrosity’ (2005) 25 Oxford Journal of Legal Studies 321–34; G. De Búrca and J. H.
Weiler (eds), The Worlds of European Constitutionalism (Cambridge University Press,
2011).
39
M. Koskenniemi, ‘The Fate of Public International Law: Between Technique and Politics’
(2007) 70 The Modern Law Review 1–30; J. E. Nijman and A. Nollkaemper (eds), New
Perspectives on the Divide between National and International Law (Oxford University
Press, 2007); Krisch, Beyond Constitutionalism.
40
See, e.g., Berman, Global Legal Pluralism; N. Krisch, ‘Pluralism in International Law and
Beyond’, in J. d’Aspremont and S. Singh (eds), Concepts for International Law:
Contributions to Disciplinary Thought (Edward Elgar, 2019), pp. 691–707.
41
See B. Z. Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to Global’
(2008) 30 Sydney Law Review 375–411.

1.4 Dynamics of Entanglement

Entanglement is not the same everywhere. Some cultures have been
shaped more, some less, by interactions with others, and so it is in law.
Not all law is equally entangled – some legal relations are characterized
by a high degree of interaction between different bodies of norms, others
not. And while such interaction depends on legal multiplicity, on over-
lapping claims associated with norms from different origins, multiplicity
is not sufﬁcient to bring it about. Even where different, potentially
competing norms are present, we may ﬁnd them to be not entangled
but integrated into a common whole, as in many federal states in which
there is one legal order and federal law is recognized to trump legislation
at the state level.
When we look beyond the state, it is not immediately clear why, in
contexts of intense multiplicity, degrees of entanglement vary as much as
they do. Contrast the European Union, where national and EU law have

42
See K. Culver and M. Giudice, Legality’s Borders: An Essay in General Jurisprudence
(Oxford University Press, 2010); M. Del Mar, ‘Legality as Relative Institutionalisation:
MacCormick’s Diffusionism and Transnational Legal Theory’ (2014) 5 Transnational
Legal Theory 177–217.
43
N. Krisch, ‘The Decay of Consent: International Law in an Age of Global Public Goods’
(2014) 108 American Journal of International Law 1–40; J. Pauwelyn, R. Wessel and J.
Wouters (eds), Informal International Lawmaking (Oxford University Press, 2012).
44
Contrast, for example, Chapters 4 and 6 by Backer and Kanetake.

1.4.1 Actors
On which path entanglement comes about (and whether it does) will
always depend on the actors present and relevant in a given context – it
is through them that entanglement is ‘brought to life’.47 Relations
between bodies of norms are often construed by judges and other
dispute settlers, but not only or perhaps not even primarily. They are
also built by lawmakers, such as governments formulating legislation
and treaties deﬁning the relation with other rules; by regulators devising
common norms and drawing on them in their regulatory practice; by
international organizations producing statements about the weight of
one body of norms vis-à-vis another. This volume contains many

45
See, e.g., K. J. Alter and L. R. Helfer, ‘Nature or Nurture? Judicial Lawmaking in the
European Court of Justice and the Andean Tribunal of Justice’ (2010) 64 International
Organization 563–92.
46
P. Levitt and S. E. Merry, ‘Vernacularization on the Ground: Local Uses of Global
Women’s Rights in Peru, China, India and the United States’ (2009) 9 Global Networks
441–61.
47
See especially Chapters 2 and 13 by Berger and Humfress.

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examples of this type, such as attempts by the Chinese government to
entangle different legalities, transnationally through the Belt and Road
Initiative and domestically through the social credit system, explored in
Chapters 4 and 5 by Larry Catá Backer and Tomer Broude. International
bodies are the focus of other contributions, as in Machiko Kanetake’s
account of the UN Human Rights Committee’s efforts to create linkages
with domestic courts in Chapter 6, or Grégoire Mallard and Aurel
Niederberger’s inquiry in Chapter 9 into the way in which norms on
counter-proliferation finance are circulating between regulators and
institutions such as the UN Security Council or the Financial Action
Task Force.
Yet the scope of relevant actors goes well beyond the governmental
sphere. As already noted in the imperial context, individual litigants often
play key roles in determining by whom legal claims are decided, and they
present arguments about which norms ought to apply and how.48
Lawyers advising clients generate understandings of how different laws
relate; international law firms, in particular, are important producers of
legal knowledge in this respect.49 Civil society groups, business associ-
ations and private norm addressees are often active in fostering views on
how one body of norms interacts with another – they need to navigate a
pluralist order, and their statements will have a particular weight in areas
where more authoritative actors are absent. For example, as emerges
from Eckert’s chapter on struggles over rights violations in the context
of global value chains, entanglement will often be driven by a ‘mobilisa-
tion of law from below’. More generally, if we think of law as a social
practice, it is a broad range of societal and official actors whose practices
constitute legal orders and the relations of norms among them.50 Actors
are situated, and this situation shapes their way of regarding the multiple
norms at play. Where actors – for example dispute settlers – are closely
tied to one body of norms, we can expect them to be more reticent
bridge-builders than actors with a self-understanding that is less clearly
defined. This is most obvious in the context of national courts. Where
judges understand themselves as part of a state’s authority structure,
tasked first and foremost with applying that state’s law, they are unlikely

48
See Chapter 13 by Humfress.
49
See also Günther and Randeria, Recht, Kultur und Gesellschaft im Prozess der
Globalisierung, pp. 52–9.
50
See generally Chapter 17 by Tamanaha; and the emphasis on a ‘user theory of jurisdic-
tion’ in Chapter 13 by Humfress.

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  
to draw openly on norms from other origins.51 However, not all national
judges are alike. Common law judges, for example, might be more open
than their civil law colleagues to creating linkages with norms from
various sources out of an understanding of law that is encompassing
rather than tied to a particular political authority.52 Which actors are
tasked with resolving a particular conflict – and what background they
have – will then often have strong repercussions for the kind and
strength of resulting connections. Humfress’ chapter, with its focus on
the different engagements with Roman law by military officials, clerics
and tribal leaders in the resolution of an individual dispute, brings this
point out nicely.
Variations in situatedness might also help to explain, for example, the
relative unwillingness of courts tasked with the interpretation of a par-
ticular instrument to consider norms from other origins, compared with
the attempts of, say, the International Court of Justice to provide a
(somewhat) more ecumenical reading of international law.53 A body
tasked with the interpretation of less well-defined areas of law, such as
the Court of Arbitration for Sport, is likely to sense greater freedom in
creating linkages with norms from different origins.54 And dispute set-
tlers who, like arbitrators appointed ad hoc, are not beholden to a
particular political or legal order, can be expected to draw on a broader
range of norms than their more directly committed counterparts.
Non-governmental actors – and especially those that are not tasked
with enforcing a particular legal order – are more generally less commit-
ted in principle, and they are likely to be more flexible in using and
drawing upon different legalities: they may perhaps be seen to inhabit the
‘liminal spaces’ in which entanglements tend to flourish.55 This is prob-
ably also true for actors who, like regulators, understand themselves as
lawmakers rather than law-appliers and therefore may feel less

51
See J. Resnik, ‘Law as Afﬁliation: “Foreign” Law, Democratic Federalism, and the
Sovereigntism of the Nation-State’ (2008) 6 International Journal of Constitutional Law
33–66.
52
See Chapter 6 by Kanetake; also H. P. Glenn, ‘Transnational Common Laws’ (2005) 29
Fordham International Law Journal 457–71.
53
Y. Shany, ‘International Courts as Inter-Legality Hubs’, in J. Klabbers and G. Palombella
(eds), The Challenge of Inter-Legality (Cambridge University Press, 2019), pp. 319–38. See
also Corradini, Chapter 7, on investment tribunals.
54
See Chapter 10 by Duval.
55
On those liminal spaces, see Stockhammer, ‘Conceptualizing Cultural Hybridization in
Archaeology’, pp. 45–51.

1.4.2 Pathways
There are many paths to entanglement, and the discussion so far has
already suggested some important ones. The ideational context of actors –
most clearly in the case of judges – is bound to condition whether they
construe legal orders as one or as separate, and whether they see them as
open or closed. The space for and possibilities of entanglement are likely
to vary historically and geographically as a result. For a judge in
seventeenth-century Germany, entangling may have been the norm,
whereas his late twentieth-century counterpart will have approached
the plurality of norms through a prism of clearly separated (and intern-
ally integrated) legal spheres. Likewise, actors in many developing coun-
tries may be more used to navigating different normative orders than
their colleagues in the Global North, even if there remains important
variation. On the other hand, actors with a firm international law back-
ground applying formal international legal rules may be less open to
applying norms from other sources than those engaged in the application
of informal or transnational norms. The intense practice of linking
norms from different origins by bodies such as the National Contact
Points under the Organisation for Economic Co-operation and
Development (OECD) Guidelines for Multinational Enterprises, traced
by Tomáš Morochovič and Lucy Lu Reimers in Chapter 12, reflects a very
open imagination of the law to be applied. At the same time, inter-
national lawyers will tend to regard different issue-specific regimes as
part of one international legal order and seek to construe harmonious
relations between them.56 That said, the communities of practice actors
form part of will often shape the way they construe linkages; this comes
out particularly clearly in Chapter 11 in Francesco Corradini’s portrayal

56
H. Birkenkötter, ‘International Law as a Common Language across Spheres of Authority?’
(2020) 9 Global Constitutionalism 318–42.

57
See also S. Taekema, ‘Between or beyond Legal Orders: Questioning the Concept of Legal
Order in Light of Interlegality’, in J. Klabbers and G. Palombella (eds), The Challenge of
Inter-Legality (Cambridge University Press, 2019), pp. 69–88, at pp. 78, 84.
58
See Chapter 15 by Eckert.
59
Levitt and Merry, ‘Vernacularization on the Ground’; T. Berger, Global Norms and Local
Courts: Translating the Rule of Law in Bangladesh (Oxford University Press, 2017).
60
L. Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900
(Cambridge University Press, 2002) p. 137; Barkey, ‘Aspects of Legal Pluralism in the
Ottoman Empire’, p. 100.
61
See J. Eckert, ‘What Is the Context in “Law in Context”?’, in S. P. Donlan and
L. Heckendorn Urscheler (eds), Concepts of Law: Comparative, Jurisprudential, and
Social Science Perspectives (Routledge, 2016), pp. 225–36.

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Linkages with different bodies of norms can create space, but they
can also serve to strengthen authority. For example, transnational regu-
lators may enhance their own position by linking up with bodies of
norms produced by other, reputed institutions, as detailed in
Corradini’s chapter on global ﬁnancial regulation, and in particular the
efforts of the Financial Stability Board, to weave a common set of norms.
Another prominent example are national courts who, by linking their
domestic legal order to European Community law, created space for
themselves vis-à-vis political branches and hierarchically superior
courts.62 In Antoine Duval’s chapter on the making of a transnational
lex sportiva, it is the Court of Arbitration for Sport that bolsters its
authority – and wards off potential challenges by other courts – by
drawing together rules and laws of very different pedigree.
In this picture, stronger, more autonomous actors would likely be
more resistant to closer entanglement, while weaker, more vulnerable
ones would seek it to bolster their own position and authority.63
Corradini’s chapter on investment and human rights law suggests that
increasing legitimacy challenges for investment law might push actors,
including arbitrators, to seek stronger entanglements, at least rhetorically.
In contrast, Lucy Lu Reimers’ chapter on international trade law shows
how a relatively strong institution – the World Trade Organization
(WTO) – has been able to use linkages strategically and selectively, while
avoiding unfavourable entanglements. In Backer’s chapter, algorithmic
techniques of governance can subsume other legalities, but typically on
their own terms and potentially dominating them as a consequence of
technological change. Taking the different, competing norms into
account may appear as the path of least resistance, but it may also help
to create space to come to a preferred conclusion.
A further major pathway, too often neglected, is coercion, broadly
conceived. Metropolitan law in imperial settings may have at times held
some appeal or beneﬁts, but in many cases local actors have woven it into
their legal arguments because of a relation of domination – expressed, for
example, through imperial judges who needed to relate ‘their’ law to the
norms operative on the ground, or through local judges who thereby

62
K. J. Alter, Establishing the Supremacy of European Law: The Making of an International
Rule of Law in Europe (Oxford University Press, 2001).
63
This may help to explain patterns in judicial borrowing by international courts; see E.
Voeten, ‘Borrowing and Nonborrowing among International Courts’ (2010) 39 The
Journal of Legal Studies 547–76.

1.4.3 Dynamics
Entanglements may be gradual and smooth, but often they are charac-
terized by a dialectical dynamic – one in which actors favour proximity
between different bodies of norms but they also seek a certain distance,
and they thus construe the relation as neither strict separation nor full
integration into one order. Just as processes of globalization are charac-
terized by the dual tendencies of assimilation and fragmentation,
entanglement is an in-between state which often oscillates between these
poles.66
This is perhaps most obvious when entanglement comes about, at least
in part, through coercion. Pressure to adopt certain norms is then likely
to be countered by attempts to create distance at the same time, as in the
case of local law faced with metropolitan legislation in (post)colonial

64
See, e.g., Benton, Law and Colonial Cultures, chapter 4.
65
See S. Randeria, ‘The State of Globalization: Legal Plurality, Overlapping Sovereignties
and Ambiguous Alliances between Civil Society and the Cunning State in India’ (2007) 24
Theory, Culture & Society 1–33.
66
See Z. Bauman, ‘On Glocalization: Or Globalization for some, Localization for some
Others’ (1998) 54 Thesis Eleven 37–49; Conrad and Randeria, ‘Einleitung: Geteilte
Geschichten’, pp. 41–2.

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contexts.67 This is visible today, for example, in the continuing struggle of
Indigenous peoples against the supremacy claims of (settler) state law or
in attempts to counter state law demands by emphasizing the autonomy
of Sharia law.68 But the tension between proximity and distance can be
observed more widely. In the postnational context, it will often reflect a
tension between factors militating for closer linkage – for example the
harmonization of markets, or universal human rights claims – and an
insistence on autonomy and the freedom to decide differently. The latter
is relatively obvious in ‘vertical’ relations when actors insist on the
autonomy of smaller units, for example national institutions vis-à-vis
international rules.69 Kanetake’s chapter shows how UN human rights
bodies accommodate potential resistance by leaving national actors sig-
nificant flexibility when it comes to giving international decisions domes-
tic legal weight, and how national courts use (and sometimes extend) this
space in a variety of ways. Approaching the question from the local angle,
Berger’s chapter traces the complex interplay between proximity and
distancing in the approaches of different actors to multiple available
norms, from Islamic to state and international human rights law, in
debates over a ban on Islamic fatwas in Bangladesh.
Yet we can also observe an insistence on autonomy in other, more
‘horizontal’ contexts, for example when actors seek to defend the values
driving international human rights law or international economic law
from being contaminated by the respective other.70 Reimers’ chapter on
the interaction between international trade and environmental law pro-
vides a vivid account of this dynamic. The more particular bodies of
norms are linked with distinct values, institutions and constituencies, the
more linkages may create concerns about heteronomy and provoke calls
for greater distance. In the end, the portrayal of certain relations as
‘vertical’ or ‘horizontal’ is also a product of how an entanglement is
socially construed – as we can see, for example, in Culver and

67
On the latter, see e.g. Barkey, ‘Aspects of Legal Pluralism in the Ottoman Empire’,
pp. 101–3.
68
See Chapters 3, 14 and 17 by Anker, Culver and Giudice, and Tamanaha.
69
The ‘vertical’ and ‘horizontal’ dimensions of entanglement are helpful as heuristic tools to
structure the inquiry, but it should be noted that they are themselves products of how the
relation between different bodies of norms are related. Indigenous and state law, for
example, can be understood as standing in either the one or the other relation; the politics
of this choice are reﬂected in Chapter 14 by Culver and Giudice.
70
P. Alston, ‘Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply
to Petersmann’ (2002) 13 European Journal of International Law 815–44.

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  
Giudice’s discussion of the relation of Canadian state and indigenous
laws in Chapter 14, the question of whether a relation should be seen as
one or the other can be highly contested and consequential. Attempts at
linkage can make entanglements appear as more vertical, attempts at
distancing can make them more horizontal.
The need to create, or insist on, distance is likely to be, in part, a
function of the character of the entangled norms. Where these are
informal and soft, actors retain space and autonomy even in the face of
close linkages. The examples of corporate social responsibility norms, in
Morochovič and Reimers’ chapter, or global financial standards, in
Corradini’s contribution, are cases in point here – as Corradini empha-
sizes, the creation of unified financial standards has long been hampered
by an insistence on autonomy on the part of both national governments
and various international bodies. In hard law contexts, for example in
domestic courts, the stakes of entanglement will often be higher and a
clear definition of relations more consequential.
The dialectic of proximity and distancing also has a temporal dimen-
sion. Linkages often have long-term effects, especially when they concern
not only individual norms but whole sets of norms or legal orders.
A norm defining the status of international law in the domestic legal
order, for example, has relevance for an unlimited number of interactions
between both legal orders in the future. The effects of such linkage,
however, are often difficult to predict for the actors involved, and atten-
tion may well be drawn to them only when problems arise and a
particular issue becomes politicized.71 As tighter forms of coupling
emerge and come to apply to increasingly consequential and salient
issues, they can be expected to provoke political contestation and resist-
ance which will often seek to disrupt more routinized forms of inter-
action and may result in mechanisms for reclaiming distance. Even if
issue-specific, this politicization may lead to calls for redefining the
linkage more broadly. In this vein, contestation around issues of terror-
ism and voting rights for prisoners has engendered a general movement
in the UK for greater distance from judgements of the European Court of
Human Rights.72

71
M. Zürn, M. Binder and M. Ecker-Ehrhardt, ‘International Authority and Its
Politicization’ (2012) 4 International Theory 69–106.
72
See M. Madsen, ‘The Challenging Authority of the European Court of Human Rights:
From Cold War Legal Diplomacy to the Brighton Declaration and Backlash’ (2016) 79
Law and Contemporary Problems 141–78, at 170–1.

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     
1.5 A Variety of Forms
If we can indeed expect a push towards greater proximity, accompanied
by certain forms of distancing that prevent full integration, the result is
likely to be the emergence of new types of norms at the interfaces
between different parts of the legal order – norms that, instead of
governing behaviour directly, define the relation and applicability of
primary norms (on behaviour) as well as secondary norms (on powers
to make and interpret the law).73 With this volume, we aim at gaining a
clearer picture of the shape of these norms – ‘tertiary norms’, as Michaels
describes them in Chapter 16.
In a context of entanglement, interface norms are likely to reflect the
dialectic dynamics in Section 1.4 – strengthening ties between different
bodies of norms but preserving discretion or safety valves that help to
recalibrate relations in times of tension.74 Yet how these norms are
construed will often differ across actors. This is most obvious in the
jurisprudence of different courts, for example in differences in interpret-
ation of the proper relationship of human rights and international
humanitarian law.75 But it is at least equally observable outside the
courtroom, for example in the conflict over the relationship of the
TRIPS (Trade-Related Aspects of Intellectual Property Rights)
Agreement with international human rights and world health law as
regards access to essential medicines. Here, the World Health Assembly
and the (then) UN Human Rights Commission urged an interpretative
coupling of the different areas, while neither the WTO’s eventual Doha
Declaration on the TRIPS Agreement and Public Health nor the imple-
menting decision mention other bodies of law at all – despite the fact
that, as a political matter, these other bodies were obviously important
for the eventual rapprochement of the WTO.76 Corradini’s chapter on
investment and human rights, and Reimers’ on trade and environment,

73
See Krisch, Beyond Constitutionalism, pp. 285–96.
74
In a similar vein, Kjaer highlights the proliferation of ‘connectivity norms’ in the global
order; see P. F. Kjaer, ‘Global Law as Inter-contextuality and as Inter-legality’, in
J. Klabbers and G. Palombella (eds), The Challenge of Inter-legality (Cambridge
University Press, 2019), pp. 302–18, at p. 304.
75
See, e.g., A. E. Cassimatis, ‘International Humanitarian Law, International Human Rights
Law, and Fragmentation of International Law’ (2007) 56 International & Comparative
Law Quarterly 623–39.
76
See on the contest L. R. Helfer, ‘Regime Shifting: The TRIPS Agreement and New
Dynamics of International Intellectual Property Lawmaking’ (2004) 29 Yale Journal of
International Law 1, at 42–5.

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  
trace other cases of actors’ diverging views over the relationship between
two bodies of norms, and they highlight especially the interactive
and temporal dimension of the construction of the relationship.
Interface norms themselves are contingent: claims about them vary
across actors and times. Stable relations between bodies of norms may
emerge from convergence among concerned actors on the substance or
on the norms governing the interfaces, but such convergence may well
prove elusive.
Getting closer to these interfaces means that we cannot limit ourselves
to considering the formal rules that govern these relations or the occa-
sional pronouncement of a court – too much of the postnational legal
order only has loose connections with courts or other formal dispute
settlers. Instead, we need to take into view the ways in which different
kinds of actors – norm-makers, addressees, dispute settlers and other
concerned societal actors – construe these relations and resolve (poten-
tial) conflicts between different norms. We thus need to get closer to the
‘social life’ of postnational law in order to understand the way it works.77
This is brought out in this volume by, for example, Eckert’s account of
the construction of entanglements ‘from below’ which zooms in on
societal actors and their struggles behind the legal façade, or in
Humfress’ insistence on a user theory of jurisdiction that starts from
the ways in which litigants draw on particular authorities to navigate
different layers of law.
The relations brought about through societal action can be a mere
matter of fact and influence between different bodies of norms. But
they will also often be the result of, and reflected in, discursive
statements – in the overlapping bodies of norms themselves or in
statements about them from relevant actors. The production of inter-
face norms is then the result not so much of a one-off determination,
but of a process of law – a process whose analysis will often benefit
from sociological and anthropological methods to complement the
work of lawyers, as evident from the multidisciplinary contributions
to this volume.78

77
See also Taekema’s suggestion that a practice orientation is key to understanding inter-
legality in Taekema, ‘Between or Beyond Legal Orders’.
78
See generally S. F. Moore, Law as Process: An Anthropological Approach (Routledge &
Kegan Paul, 1978).

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1.5.1 Towards a Typology
What then are the norms and practices that structure the relations
between different bodies of norms? Practice has generated a host of tools
and approaches in this respect,79 and we can distinguish three main
types: reception norms, overarching norms and – situated between
them – straddling practices. The two former form part of the common
repertoire of inter- and intra-systemic norms – they reflect the dichot-
omy between the (external) conflict of laws and the (internal) conflict of
norms80 – while the latter blur system boundaries and suggest an alter-
native structure, characterized by looser couplings.
Reception norms. Reception norms are the typical form through which
a legal system deals with norms from the outside; they reproduce the
inside/outside distinction and define the ways in which outside norms
enter a given body of norms. Michaels’ tertiary norms, as developed in
Chapter 16, fall into this category as they are designed to regulate the
relations of one legal system with others. Reception norms include norms
performing an accommodating function in the regulation of the inter-
action between bodies of norms.81 They can reflect closer as well as more
distanced relations, though they remain short of actual integration. They
can thus range from the exclusion of outside norms to fixed references,
potentially coupled with conditions of a procedural or substantive kind.
Examples of the latter are conflict-of-law norms that specify in which
circumstances foreign norms are applied by national courts; norms about
the effect and hierarchical status of outside norms in the domestic legal
order; or norms of the Solange kind that recognize the direct effect of
(regional or international) norms if these fulfil certain – procedural or
substantive – conditions, for example equivalent protection. More flex-
ible reception norms embody greater discretion, for example in require-
ments of taking norms from other authority spheres ‘into account’, or in
practices granting them ‘persuasive authority’, thus giving them weight

79
See, e.g., Delmas-Marty, Ordering Pluralism; D. Pulkowski, The Law and Politics of
International Regime Conflict (Oxford University Press, 2014); A. Peters, ‘The
Refinement of International Law: From Fragmentation to Regime Interaction and
Politicization’ (2017) 15 International Journal of Constitutional Law 671–704.
80
R. Michaels and J. Pauwelyn, ‘Conflict of Norms or Conflict of Laws? Different
Techniques in the Fragmentation of Public International Law’ (2012) 22 Duke Journal
of Comparative & International Law 349–76.
81
See R. Michaels, ‘On Liberalism and Legal Pluralism’, in M. Maduro, K. Tuori and
S. Sankari (eds), Transnational Law: Rethinking European Law and Legal Thinking
(Cambridge University Press, 2014).

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  
but no conclusive effect.82 Kanetake’s chapter traces the many such forms
the United Nations treaty bodies and domestic courts use to calibrate
their relations, providing for both linkage and flexibility by using open
criteria, such as ‘due consideration’.
Overarching norms. Typical for the intra-systemic dimension, over-
arching norms regulate relations centrally and with binding character for
the different bodies of norms involved. This can involve classical conflict
norms, such as lex specialis or lex posterior. It can also involve norms
about hierarchies, as between constitutions and ordinary statutes or
secondary legislation, between federal and state law in federal orders,
between ius cogens and other international rules or between obligations
under the United Nations Charter and other international obligations
under Article 103 of the Charter. Overarching norms can also be con-
strued as substantive integrating rules or principles, such as human
rights, sustainable development or democracy/good governance, which
create normative expectations throughout the entire system – often
expressed, in international law, as rules of ‘customary’ or ‘general’ inter-
national law.83 Equally more flexible are interpretative connections that
allow actors space to define relations, such as principles of harmonizing
interpretation or requirements not to interpret certain rules ‘in isolation’
from other parts of the legal order.84 On the other hand, overarching
rules can also be seen to protect the autonomy of certain parts of the
order, through constitutional limits on interference, the recognition of
the self-contained character of certain suborders, lex specialis claims or
rules which delimit regulatory spheres, as between agreements with
different sets of parties.
Straddling practices. The third (and perhaps most interesting) category
comprises norms and practices that straddle different bodies of norms
without being seen to belong to either, thus blurring the boundaries
between them. Given the prevailing systemic imagery, such practices
have found less attention so far, even if – as we have seen in the brief
historical survey in Section 1.3 – they seem to have formed an important
part of the entangled legalities of the past. Such norms and practices will
also tend to be less clearly developed and are likely to appear in more
inchoate forms. We can observe them, for example, in courts weaving

82
See also Krisch, Beyond Constitutionalism, pp. 286–96.
83
See Chapters 7 and 8 by Corradini and Reimers.
84
See, e.g., C. McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(C) of the
Vienna Convention’ (2005) 54 International and Comparative Law Quarterly 279–320.

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together different bodies of norms in order to come to a solution in a
given case. For example, the Court of Appeal of England and Wales, in a
case concerning the implementation of UN sanctions, used the notion of
‘conciliation’ to bring together UK primary and secondary legislation, the
European Convention on Human Rights as well as obligations deriving
from UN Security Council resolutions in a harmonious fashion, rather
than stipulating rules of hierarchy or re-enacting the boundaries between
legal systems.85 Other boundary-blurring norms may be hybrid norms,
multi-sourced equivalent norms86 or open concepts used to provide a
pathway between different bodies of norms. Examples here include due
diligence principles that allow for connections between the national and
transnational regulation of multinational companies, or the notion of
‘core labour rights’ developed by the International Labour Organization
and allowing for flexible references in a multitude of other codes, public
and private. These forms mirror the ‘intertextuality’ traced by Mallard
and Niederberger in counter-proliferation finance.87 Open concepts are
also visible in Berger’s account of the Bangladeshi Supreme Court’s
navigation of the boundary between state and religious law (and inter-
national human rights).
Such straddling practices are particularly visible in contexts less struc-
tured by ideational frames of modern state law. Humfress emphasizes the
importance of jurisgenerative practices of actors, rather than formalized
norms and relations between them, in the making of law in Chapter 13
on the Eastern Roman Empire. Similar observations pertain to
contemporary contexts with a lesser degree of formalization and weaker
boundaries than typically found in the state context. Some of the
National Contact Points under the OECD Guidelines for Multinational
Enterprises, for example, have emerged as quasi-judicial dispute settle-
ment bodies and have drawn on various bodies of norms to ground their
findings, as Morochovič and Reimers detail in Chapter 12. Some of the
norms they use – such as the requirement of ‘free, prior and informed
consent’ – are drawn from other bodies of norms but used as if they were
free-floating principles applicable throughout. Similarly, Duval traces
how the Court of Arbitration for Sport uses both publicly and privately

85
England and Wales Court of Appeal, Judgment of 30 October 2008, A, K, M, Q & G
v. HM Treasury [2008] EWCA Civ 1187.
86
T. Broude and Y. Shany (eds), Multi-sourced Equivalent Norms in International Law
(Bloomsbury, 2011).
87
See also Kjaer, ‘Global Law as Inter-contextuality and as Inter-legality’.

1.6 Entangled Order

In some of its forms, entanglement can appear as the antithesis of order
and system. A multitude of actors producing varying links between
norms, sometimes closer, sometimes more distant, but always somehow
in ﬂux: this picture seems to be in stark contrast to the ideal of a rule of
law. Yet the landscape that emerges from this volume is not as dark or
drastic – in many contexts it is quite the opposite.

88
See also N. Krisch, F. Corradini and L. L. Reimers, ‘Order at the Margins: The Legal
Construction of Interface Conﬂicts over Time’ (2020) 9 Global Constitutionalism 343–63.
89
See also K. E. Davis, A. Fisher, B. Kingsbury and S. E. Merry (eds), Governance by
Indicators: Global Power through Classiﬁcation and Rankings (Oxford University Press,
2012).

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1.6.1 Conflict and Consolidation
Legal entanglement will often be seen as prone to conflict – more clearly
defined relations, either the separation or the integration of different
bodies of norms, seem to promise greater stability. Stanley Hoffmann’s
famous dictum about the European Community, which he saw as occu-
pying an unstable middle ground between international cooperation and
the creation of a new state, exemplifies this widespread view.90 Today,
similar assessments often accompany the diagnosis of regime complexity
and interface conflicts between different institutions and norms in the
global order.91
Whether this assumption of conflictivity is empirically justified is not
obvious,92 however, and how it applies to different forms and degrees of
entanglement even less so. Entangled relations do not have to be unstable
at all; they can display a high degree of consolidation around the norms
that govern interactions. This is especially so if addressees as well as
dispute settlers adopt a conciliatory rather than confrontational atti-
tude.93 Even if underlying tensions persist, the relative openness of such
entanglements, and the frequent accommodation of both linkage and
distancing just mentioned, may actually help to provide flexibility and
the necessary safety valves to adjust to changing or unforeseen
circumstances.94
In fact, in several of the chapters in this volume, closer entanglements
are construed precisely to respond to, and ward off, challenges to the
legitimacy of a certain body of norms. These challenges stem from, for
example, human rights (as in Duval’s story of the Court of Arbitration
for Sport or Corradini’s of international investment law) or environ-
mental concerns (as in Reimer’s chapter on trade law). On the other
hand, more distant entanglement is sometimes sought to defuse conflicts
that would be caused by too integrated a relation – as in the move

90
S. Hoffmann, ‘Obstinate or Obsolete? The Fate of the Nation-State and the Case of
Western Europe’ (1966) 95 Daedalus 862–915.
91
See, e.g., D. W. Drezner, ‘The Tragedy of the Global Institutional Commons’, in
M. Finnemore and J. Goldstein (eds), Back to Basics: State Power in a Contemporary
World (Oxford University Press, 2013), pp. 280–310.
92
See C. Kreuder-Sonnen and M. Zürn, ‘After Fragmentation: Institutional Density, Regime
Complexes and Interface Conﬂicts’ (2020) 9 Global Constitutionalism 241–67.
93
See Peters, ‘The Reﬁnement of International Law’; T. Megiddo, ‘Beyond Fragmentation:
On International Law’s Integrationist Forces’ (2019) 44 Yale Journal of International Law
115–48.
94
See Krisch, Beyond Constitutionalism, chapter 7.

1.6.2 Beyond Legal Systems

Entanglement also stands in some tension with the way law and legal
order have been imagined throughout the past century. Much of the
notion of law, inspired by the image of domestic legal systems, was linked
to the idea of system – to an orderly structure held together either in
form or in content, and distinguishable from its outside. It is the systemic
character, brought about by the union of primary and secondary rules,
that for H. L. A. Hart and many theorists after him, distinguishes modern
law from less developed forms of obligation.96 Others, including non-
positivists such as Ronald Dworkin, have focused on coherence and
integrity as hallmarks of law.97
From all these perspectives, entanglement is a challenge.98 It is a
limited challenge, at least in formal terms, when we deal with reception

95
Krisch, Corradini and Reimers, ‘Order at the Margins’.
96
See only H. L. A. Hart, The Concept of Law (Clarendon Press, 1994); J. Raz, The Concept
of a Legal System: An Introduction to the Theory of Legal System (Clarendon Press, 1980).
97
See R. Dworkin, Law’s Empire (Harvard University Press, 1986); S. Shapiro, Legality
(Harvard University Press, 2011).
98
See also Tamanaha, ‘Understanding Legal Pluralism’.

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norms and overarching norms – here, entanglement is integrated into the
legal system through the system’s own rules about identity and boundar-
ies. Yet even here, the particular rules required to deal with the relations
with others have not been overly well theorized. Reception norms,
traditionally seen as relatively marginal, pose theoretical problems
because, as a matter of fact, they do not operate solely within the system
but depend on accommodating rules and practices in other systems.
Where interactions between different bodies of norms are intense, the
potential for divergences and substantial incoherence grows, posing a
challenge for the rule of law aspirations often associated with law, and
especially with the systemic image of law. And while a description of law
that operates with closure and hierarchies may still have some formal
validity (within each of the interacting systems), it captures less of the
social reality of a legal order.99 In Chapter 16, Michaels draws our
attention to the challenge of plurality for a Hartian legal theory and
begins to develop a response by introducing ‘tertiary’ norms and clarify-
ing their scope and functioning. He highlights in particular that such
tertiary norms need to reflect a recognition not just from the officials or
addressees of the particular legal system concerned but also from other
legal systems with which it stands in relations.
The theoretical challenge grows further when we turn to the straddling
practices mentioned in Section 1.5. The more these blur the boundaries
of different legal systems, the less they can be integrated into a systemic
image of the law, even one relying on a multiplicity of systems. The idea
of a ‘web’ – in which different norms, and bodies of norms, form
connections with one another, with the whole only emerging from these
connections – then becomes yet more attractive.100 As Culver and
Giudice demonstrate in Chapter 14, such a web may rest on a conceptu-
alization that builds upon but modifies a Hartian approach, by empha-
sizing mutual references between legal institutions.101 This might also
provide a frame in which systemic and non-systemic expressions of law
can coexist, distinguished primarily by the strength and stability of the
connections between particular norms and bodies of norms. Culver and

99
See also the discussion in Taekema, ‘Between or Beyond Legal Orders’; G. Palombella,
‘Theory, Realities, and Promises of Inter-Legality’, in J. Klabbers and G. Palombella
(eds), The Challenge of Inter-Legality (Cambridge University Press, 2019), pp. 363–90, at
pp. 374–8.
100
F. Ost and M. Van de Kerchove, De la pyramide au réseau?: pour une théorie dialectique
du droit (Publications Fac St Louis, 2002).
101
See also Culver and Giudice, Legality’s Borders.

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  
Giudice demonstrate the analytical but also the normative appeal of
entanglement over more systemic, hierarchical models by using the
example of state–First Nations relations in Canada.
Much theorizing about networks in law, often inspired by Niklas
Luhmann’s systems theory, has taken the perspective of an external
observer, seeking to bring to light the real workings of a social system
represented otherwise by the actors involved in it – to reveal ‘the hard-
core reality of a trompe d’oeil’.102 Yet, as our volume shows, a networked
reality may well be visible also in the legal discourses themselves.
Linkages and entanglements are processed and produced internally to
legal practice, through various kinds of norms and practices connecting
and straddling different bodies of norms. Often enough, these linkages
may connect individual norms, rather than ‘bodies’ of norms as such,
thus taking us yet further away from the notion of closed systems.103
A pluralist jurisprudence will then have to give an account of not only the
inter-systemic dimension,104 but also the trans-systemic, networked
character of law, as in Boaventura de Sousa Santos’ interlegality.105
This is bound to have repercussions on the nature of legal reasoning,
well beyond the particular forms of interface norms constructed to deal
with the margins. Where actors understand law as a web rather than a
hierarchical system, we can expect them to turn away from the ambition
of principled solutions – valid throughout the system – and shift towards
forms of practical, localized and perhaps provisional accommodation.
Inconsistencies within the law are then not so much elements to be
eliminated, but instead normal occurrences in an order of multiplicity
that need to be processed and navigated.106 As indicated by Broude’s
chapter on the many attitudes of actors towards the entangled legalities
they are confronted with, ‘navigating’ may in any event be a more
accurate description of the approach to legal reasoning appropriate in
this context. However, as Eckert astutely highlights in her contribution,

102
Teubner, ‘The King’s Many Bodies’, 765.
103
See D. Burchardt, ‘Intertwinement of Legal Spaces in the Transnational Legal Sphere’
(2017) 30 Leiden Journal of International Law 305–26.
104
This is the dominant perspective in, for example, N. Roughan and A. Halpin (eds), In
Pursuit of Pluralist Jurisprudence (Cambridge University Press, 2017).
105
See, e.g., de Sousa Santos, Toward a New Legal Common Sense.
106
See, e.g., H. P. Glenn, The Cosmopolitan State (Oxford University Press, 2013),
chapter 14; M. Del Mar, ‘Legal Reasoning in Pluralist Jurisprudence’, in N. Roughan
and A. Halpin (eds), In Pursuit of Pluralist Jurisprudence (Cambridge University Press,
2017), pp. 40–63; Taekema, ‘Between or beyond Legal Orders’.

1.7 Conclusion
If law is typically understood in the singular, our focus on entangled
legalities traces the implications of its appearance in the plural. Legal
multiplicity can, of course, just mean that different legal orders exist side
by side, with occasional contact, as in the traditional conﬂict-of-laws
paradigm between national legal orders. But where interactions are more
frequent and intense, the relations between different legal orders (and
more broadly, different bodies of norms) move to the centre of attention.
The legal order as such can then no longer be understood without an
account of the ways in which its different parts are entangled.108 In this
volume, we try to understand the contours of such entanglement better.
We ask what entanglement may mean in law and whether it can give a
useful account of the relations between different norms, especially in the
context of law beyond the state. We try to understand the forms through
which actors produce entanglement and what kind of order results from
their efforts at weaving norms from different origins together – or at
keeping them apart. Entanglement, in our approach, does not denote

107
See also D. Burchardt, ‘The Twilight of Legal Order? On the Current Challenges Faced
by the Concept of a Legal System’ (2018) 9 Transnational Legal Theory 110–46.
108
See also Chapters 14 and 16 by Culver and Giudice and Michaels.

109
See J. Friedrichs, ‘The Meaning of New Medievalism’ (2001) 7 European Journal of
International Relations 475–501.

Entangling State Law

Denial, Deferral and Translation

Dynamics of Entangling and Disentangling State
and Non-state Law in Postcolonial Spaces

        

2.1 Introduction
Legal entanglements unfold in a curious space. They emerge in-between
different sets of norms, which are neither fully integrated nor kept
entirely apart.1 This position in-between various sets of norms is inher-
ently unstable, so that legal entanglements need ardent work of creation,
maintenance and constant renewal. Entanglements thus need to be made
and unmade by speciﬁc actors who are situated in historically shaped yet
malleable contexts where different sets of norms overlap and coincide.
This chapter focuses on the ways in which different actors entangle
international, state and non-state law in postcolonial societies. While
undoubtedly a very heterogeneous category that unavoidably escapes
reductionist attempts at homogenization, I argue that those places where
colonial powers institutionalized plural legal orders as explicit strategies
for the consolidation of their rule constitute a privileged site for the
investigation of entangled legalities. It is from these sites that systemic
images of law, as they have been problematized in Chapter 1, have been
forcefully attacked. As Renisa Mawani argues, ‘Law, in all of its plurality –
including Western, customary, and personal law – is conventionally
viewed as geographically situated and territorially bound to national
and imperial polities. What the comparative and transnational turn
has revealed is that law was also itinerant, moving with imperial author-
ities and colonial subjects, and connecting imperial jurisdictions in the
process.’2 Itinerant laws have thus produced historically grown legal

1
See the deﬁnitional discussion in Chapter 1.
2
R. Mawani, ‘Law and Colonialism’, in A. Sarat and P. Ewick (eds), The Handbook of Law
and Society (Wiley-Blackwell, 2015), pp. 417–32, at p. 426.



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  
entanglements affecting socio-legal dynamics in most of the world today.
Yet laws hardly ever travel by themselves.
This chapter consequently analyses (some of ) the actors that make law
move and the dynamics in which they seek to make and unmake certain
legal connections. Focusing on judges and activists of non-governmental
organizations (NGOs), it identifies three modes in which dynamics of
distancing and approximation between different sets of norms can unfold:
denial, deferral and translation. Whereas denial refers to a state where
empirically existing entanglements are acknowledged but their legal as well
as normative validity is denied, deferral denotes a situation of precarious
balance in which a given relationship between interwoven sets of norms
cannot be altered, as this would leave one or more of the involved parties
deeply dissatisfied. Thriving on imprecision and ambiguity, the politics of
deferral thus denotes a strategy of leaving the final arrangements between
different bodies of norms open and unsettled. Finally, rather than aiming
to unmake entanglements, as in the case of denial, or postponing conclu-
sive settlements between competing sets of norms, as in the case of
deferral, translation refers to the proactive transformation of norms that
occurs as they move back and forth between different contexts. In all three
modes – denial, deferral and translation – multiple normativities do not
merely coexist but are brought to life and are related to each other through
the ardent work of individual actors. They are the main protagonists of this
chapter.
After having discussed the ways in which colonial legacies have his-
torically shaped and continue to strongly affect entanglements between
international, state and non-state law in postcolonial spaces (Section 2.2),
I turn to the discussion of denial, deferral and translation as three distinct
modes through which actors seek to navigate highly complex entangled
legal landscapes (Section 2.3). The remainder of the chapter then turns to
the analysis of the dynamics in which legalities become entangled in
Bangladesh as a postcolonial space par excellence (Section 2.4). More
precisely, I focus on three instances to illustrate these dynamics: first, the
Supreme Court’s attempt to ban Islamic fatwas in 2001 (denial); second,
the violent protests this has triggered and the subsequent decision of the
Appellate Division of the Supreme Court to stay the verdict for over a
decade (deferral); and third, the work of local activists who, regardless of
constitutional developments, seek to carve out emancipatory spaces for
marginalized people by simultaneously drawing on multiple normative
registers, including Islamic and international human rights norms
(translation).

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,    
2.2 Colonial Entanglements
Today’s legal entanglements unfold in long historical trajectories in
which colonial encounters have played a decisive role.3 On the one hand,
law was a key instrument of colonial rule. It was, in the words of Martin
Chanock, ‘the cutting edge of colonialism, an instrument of the power of
an alien state and part of the process of coercion’.4 As an instrument of
coercion, law was crucial for the facilitation of the extraction of land,
labour and mineral resources from the colonized as well as for the
organization of highly unequal trade networks and market exchanges.5
Yet beyond its function as a tool for domination, Sally Engle Marry has
argued that law also had constitutive effects; it not only enabled extrac-
tion but also ‘transformed conceptions of time, space, property, work,
marriage, and the state’.6 Embedded in broader systems of domination,
colonial laws thus significantly altered not only the material infrastruc-
tures of colonized societies but also deeply transformed diverse systems
of knowledge deployed to navigate various aspects of everyday life. While
colonial projects varied significantly across time and space, as well as
between different colonizing empires, most, if not all, European colonial
projects operated through the making and unmaking of legal entangle-
ments whose shape and direction were frequently the subjects of intense
debate in both the colonies and the metropoles. In these debates, argu-
ments ranged from the wholesale transfer of metropolitan laws to the
wide-ranging reliance on seemingly indigenous laws in systems of indir-
ect rule. Yet even in the latter case, colonialism’s legal entanglements had
far-reaching effects on colonized societies. Rather than simply relying on
pre-existing ‘traditional’ or ‘customary’ authority, colonial projects oper-
ating through various forms of indirect rule strongly altered Indigenous
legal forums. Importantly, the kind of legal pluralism that emerged and
continues to significantly shape legal dynamics in most of the world
today was thus not a factual state of affairs but a project to be realized.
As Lauren Benton argues, ‘colonial powers sought simultaneously to

3
For an extended version of this argument, see also T. Berger, ‘The “Global South” as a
Relational Category: Global Hierarchies in the Production of Law and Legal Pluralism’
(forthcoming) Third World Quarterly.
4
M. Chanock, Law, Custom, and Social Order: The Colonial Experience in Malawi and
Zambia (Cambridge University Press, 1985), p. 4.
5
J. L. Comaroff, ‘Reﬂections on the Colonial State, in South Africa and Elsewhere: Factions,
Fragments, Facts and Fictions’ (1998) 4 Social Identities 321–61, at 325.
6
S. E. Merry, ‘Law and Colonialism’ (1991) 25 Law & Society Review 889–922, at 890–1.

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  
establish limited jurisdiction and to reinforce – and in some cases create –
Indigenous legal forums. As with indirect rule, legal pluralism as a
colonial project often required the creation of “traditional” authority
and the reification of legal practices and sources of law that had existed
formerly only as fluid elements of a flexible legal process.’7
While the constitutive effects of colonial laws on colonized societies
have been carefully documented, recursive effects on the colonizing
societies have received less attention. In the legal histories of Western
Europe and North America, narratives of autonomous legal evolutions
still predominate. Yet the constitutive effects of colonial encounters cut
both ways. Although highly unequal, these encounters did not merely
constitute the unilateral imposition of legal templates. Instead, recent
scholarship has shown how even core aspects of European legal systems
remain poorly understood if conceptualized without the transnational
entanglements in which they emerged. Rather than being only peripheral
to legal developments in Europe, colonies frequently had to serve as
laboratories for legal innovation and new regulatory techniques. As
John Comaroff has argued, ‘the terrain of the colonized became a testing
ground from which emanated new lawfare, new technologies of order
and regulation. These sometimes confined themselves to the colonial
frontier itself. But sometimes they were taken back to the metropole,
there to alter its social lineaments.’8 At times, the alterations that resulted
from the retransfer of legal innovation to the metropole were far-
reaching. One example is the legal institution of property as a corner-
stone of liberal social and political orders developing in Western Europe.
As Brenna Bhandar has shown, the emergence and current shape of
modern property laws in the United Kingdom are inseparable from
colonial expansions since the eighteenth century.9 In her account, the
validation of formal ownership via the registration of land titles in state-
regulated regimes institutionally emerged in the colonies of South
Australia and British Colombia, long before a similar regime became
implemented in the United Kingdom on a national scale.10 Perhaps

7
L. Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900
(Cambridge University Press, 2002), p. 128.
8
J. L. Comaroff, ‘Colonialism, Culture, and the Law: A Foreword’ (2001) 26 Law & Social
Inquiry 305–14, at 311.
9
B. Bhandar, Colonial Lives of Property: Law, Land, and Racial Regimes of Ownership
(Duke University Press, 2018).
10
Ibid., pp. 77–114.

2.3 Dynamics: Denial, Deferral and Translation

Those places where colonial powers institutionalized plural legal orders
as explicit strategies for the consolidation of their rule constitute privil-
eged sites for the investigation of entangled legalities. Here, both state
and non-state law have not developed in isolation but invariably bear
the traces of the transnational entanglements in which they emerged.
Signiﬁcantly shaping different sets of legal norms as well as the respect-
ive relationships between them, the effects of these transnational
entanglements have been enduring, reaching well into the postcolonial
period. In the postcolonial period, at least three different kinds of
entanglements can be observed in previously colonized, plural legal
orders. First, international ﬁnancial institutions and multilateral donor
agencies continue to entangle state legal systems transnationally. These
entanglements encompass both the substantive legal provision, gener-
ally along liberal lines, and the facilitation of material legal infrastruc-
tures like courtrooms or digital devices. Contemporary transnational
legal entanglements thus take myriad forms, often enumerated by
international actors in terms of ‘laws passed, people trained, computers

11
C. W. Mills, The Racial Contract (Cornell University Press, 1997).
12
N. Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (University
of Michigan Press, 2003), p. 3.

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  
provided, buildings erected’.13 Second, transnational entanglements
also continue shaping the operation of non-state legal systems. These
entanglements stem from various sources, including (again) inter-
national donor organizations that have recently rediscovered non-state
justice institutions as seemingly ‘local’ and ‘authentic’ avenues for the
promotion of human rights and the rule of law.14 Yet diaspora commu-
nities also entangle non-state justice institutions in broader webs of
conflict resolution beyond the confines of the nation state, thus embed-
ding seemingly local courts in wider networks of normative and legal
reasoning.15 Finally, state and non-state law in postcolonial contexts are
not only transnationally embedded but also interact with each other.
The ensuing entanglements can take various forms. They can surface as
formal legal integration, for example, when non-state justice institu-
tions are recognized by state authorities under conditions of adherence
to certain substantive and/or procedural requirements. In addition,
entanglements can also emerge through officials performing functions
across different systems. Marlies Bouman provides a powerful example
of such entanglement in her analysis of the complicity of police officers
in the facilitation of non-state justice in Botswana, where ‘chiefly courts
are in fact tolerated, or even supported, by the official police forces,
although their adjudication activities are in violation of various national
laws’.16 Beyond formal integration, state and non-state law thus also
become entangled in quotidian practices of conflict resolution.
What emerges in these entanglements is a dynamic movement of
approximation and distancing, as actors navigate the complex space
in-between state and non-state law. As argued in Chapter 1, this
space in-between emerges as entanglements ‘[are often] characterized
by a dialectical dynamic – one in which actors favour proximity between
different bodies of norms but they also seek a certain distance, and they

13
D. Desai and M. Woolcock, ‘Experimental Justice Reform: Justice for the Poor: Lessons
from the World Bank and Beyond’ (2015) 11 Annual Review of Law and Social Science
155–74, at 163.
14
T. Berger, ‘Global Village Courts: The United Nations and the Bureaucratization of Non-
state Justice in the Global South’, in R. Niezen and M. Sapignoli (eds), Palaces of Hope:
The Anthropology of International Organizations (Cambridge University Press, 2017),
pp. 198–219.
15
A. Hoque, ‘Land, Development and the Political Class: In a Translocal “Londoni” Village’
(2020) 54 Contributions to Indian Sociology 215–35.
16
M. Bouman, ‘A Note on Chieﬂy and National Policing in Botswana’ (1987) 19 Journal of
Legal Pluralism and Unofﬁcial Law 275–300, at 291.

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,    
thus construe the relation as neither strict separation nor full integration
into one order’. In what follows, I introduce three distinct modes in
which the dynamics of entangling (and disentangling) legalities can
unfold: denial, deferral and translation. Denial constitutes a radical form
of distancing. It does not concern so much the repudiation of the actual
existence of the entanglements of different sets of norms as empirical
phenomena but denies their legal validity as much as their normative
desirability. Entangled legalities are thus portrayed as pathologies to be
overcome by the actors involved. In the case of entanglements between
state and non-state law, denial as a way of (almost) unmaking entangle-
ments frequently relies on teleological narratives reproducing rather than
challenging idealized notions of law as a unitary and coherent system.
Interestingly, the denial of one set of entanglements might well coincide
with simultaneous demands for new but different entanglements. Liberal
critics of the pathologies of non-state institutions, for example, often rely
on international norms concerning human rights to make their case for
severing the ties between state law and its local non-state counterparts. In
these cases, entangled legalities are evaluated against the backdrop of a
spatial imagination in which ‘the international’ is seen as the reservoir of
normatively desirable order, whereas ‘the local’ becomes the source of
backwardness, poverty and strife.17 State law is sought to be entangled
with the former, also to distance it from the latter.
In contrast to the denial of legal entanglements, deferral aims at
keeping a precarious balance between different forces in place. Often this
involves undermining aspirations to unity and coherence usually associ-
ated with state law. Instead of producing certainty, the politics of deferral
ﬂourishes in the realm of the uncertain and undecided. It enables cohab-
itation precisely because it does not conclusively settle issues or conﬂicts,
which cannot be settled, or cannot be settled in a way acceptable to all
parties involved. Noah Salomon provides a striking example of the
politics of deferral in his analysis of ‘The Ruse of Law’ in Sudan.
Analysing the politics of religious diversity in the 1990s, he shows how,
in the run-up to the 2005 Comprehensive Peace Agreement, only the
suspension of the questions of applicability of Islamic religious principles
to non-Muslims enabled progress in otherwise stalled negotiations
between the north and the south. In Salomon’s words, in the negotiations
it seemed ‘that the consensus was that the building of a state that respects

17
R. Rao, Third World Protest: Between Home and the World (Oxford University Press,
2010), p. 45.

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  
religious diversity was only possible in spite of the law – that is, when the
law was unequally or inconsistently applied – and not by crafting a law
that would be acceptable to all’.18 Here, a unitary and consistent legal
system is deliberately eschewed for inconsistency and a status of deferred
legal certainty. Interestingly, the resulting uncertainty is often a source of
stability rather than chaos. While scholars operating within the kind
of unitary images of law outlined in Chapter 1 unavoidably understand
uncertainty as a source of trouble and strife, the notion of legal entangle-
ments opens the analytical space to appreciate the stabilizing function of
uncertainty. Precisely because the conflictual relationship between differ-
ent sets of norms is not brought into hierarchical order but is kept
open and thus dynamic (or ‘uncertain’), entangled legalities can have
de-escalating effects in situations where seemingly irreconcilable differ-
ences coincide.
The third mode through which actors navigate entangled legalities is
translation. Rather than aiming to unmake entanglements, as in the case
of denial, or postponing specific settlements between competing sets of
norms (as with deferral), translation refers to the proactive transform-
ation of norms that occurs as they move back and forth between different
contexts. Its focus is less on conceptualizing the ways in which different
sets of norms are temporarily coupled or decoupled but rather on the
myriad ways in which external ideas enter specific sets of norms.
Translations usually involve two kinds of change that occur simultan-
eously.19 On the one hand, the content of norms changes, at times quite
considerably. As Walter Benjamin argued in his seminal reflection of
‘The Task of the Translator’, translations are inherently creative as much
as productive processes. Instead of simply transferring ideas from one
language (or one context) into another, translations constitute proactive
innovations of new meanings. This, in turn, challenges the idea of ‘the
original’ as an authoritative reference point to which any translation
would need to seek as close a proximity as possible. Instead, proximity
in meaning might well arise from a seeming distance to the original. In
the beautifully poetic words of Benjamin, ‘no translation would be
possible if, in accord with its ultimate essence, it were to strive for

18
N. Salomon, ‘The Ruse of Law: Legal Equality and the Problem of Citizenship in a
Multireligious Sudan’, in W. F. Sullivan, R. A. Yelle and M. Taussig-Rubbo (eds), After
Secular Law (Stanford University Press, 2011), pp. 200–20, at p. 203.
19
T. Berger, Global Norms and Local Courts: Translating the Rule of Law in Bangladesh
(Oxford University Press, 2017).

2.4 Entangled Legalities in Bangladesh

As a highly transnationalized socio-political space, Bangladesh exempli-
fies the properties of postcolonial statehood and the correlative legal
entanglements so far discussed. Since its inception Bangladesh has been
a highly aid-dependent country. Labelled as a ‘perpetual basket case’ by
Henry Kissinger in the 1970s,21 it subsequently became a testing ground
for development practices and ideas as well as a focal point for develop-
mental innovations.22 At the same time, the country’s legal landscape is
characterized by historically grown and deeply anchored plurality. In
Sarah White’s paraphrase of Joel Migdal, Bangladesh remains ‘a weak
state in a strong society’.23 The resultant legal entanglements between
international, national and local sets of norms as well as between state
and non-state law unfold in a long historical trajectory reaching back to
the British colonial state in India. Before turning to the analysis of three
instances of denial (Section 2.5), deferral (Section 2.6) and translation
(Section 2.7), I first briefly sketch some pertinent aspects of this
trajectory.
Having been part of the colonial state in India, Bangladesh emerged
from the so-called second partition on the Indian subcontinent. The first
had resulted in the separation of India and Pakistan upon the eve of
independence in August 1947. Based on the ‘two-nation theory’ and the

20
W. Benjamin, ‘The Translator’s Task’ (1997) 10 TTR: traduction, terminologie, rédaction
151–65, at 155.
21
C. Bell, ‘Kissinger in Retrospect: The Diplomacy of Power-Concert?’ (1977) 53
International Affairs 202–16.
22
D. Lewis, Bangladesh: Politics, Economics, and Civil Society (Cambridge University Press,
2011).
23
S. White, ‘NGOs, Civil Society, and the State in Bangladesh: The Politics of Representing
the Poor’ (1999) 30 Development and Change 307–26.

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  
assertion that Hindus and Muslims constituted two different nations and
consequently ought to inhabit distinct nation states, Pakistan emerged as
a bifurcated state with two geographically disconnected wings, separated
by more than 1,000 kilometres of Indian territory. In many ways an
unviable political project from the outset, tensions in Pakistan quickly
rose, especially between the eastern and western wings. Escalating over
questions of political representation, the distribution of resources and –
above all – national language, these tensions resulted in a short but
bloody war of independence in 1970–1, leaving between one and three
million dead and more than ten million refugees in neighbouring India.
Based on an ethnolinguistic nationalism built around the Bengali lan-
guage as the most decisive marker of identity for the inhabitants of what
was then still East Pakistan, the independence movement sought to
undermine Pakistan’s raison d’être as the homeland for all Muslims on
the subcontinent by advocating a secular rather than religious identity for
the future state-to-be. After the surrender of the Pakistani troops,
following Indian aerial intervention in December 1971, Sheikh Mujibur
Rahman and the Awami League as leaders of the independence move-
ment consequently established secularism, together with socialism,
nationalism and democracy, as constitutive principles of the newly born
state of Bangladesh.24
Since its inception the state of Bangladesh has existed in a web of
multiple, at times overlapping, entangled legalities. From the British
colonial state in India, it inherited a bifurcation between secular Civil
and Criminal Codes and a set of religious personal laws governing
questions of marriage, divorce, inheritance and the custody of children.
While based on religious precepts, the colonial state heavily intervened in
the interpretation of religion. Relying on orientalist scholarship and
excessively scripture-based understandings of religion, the colonial state
codiﬁed religious laws whose content diverged signiﬁcantly from the
quotidian practices of (religious) legal interpretation in India. As
Michael Anderson has argued, ‘colonial administrators may never have
changed Islamic legal arrangements quite so profoundly as when they
were trying to preserve them’.25 Departing from the colonial interpret-
ation of religious law, the Pakistani state also engaged in substantial

24
W. van Schendel, A History of Bangladesh (Cambridge University Press, 2009).
25
M. R. Anderson, ‘Islamic Law and the Colonial Encounter in British India’, in D. Arnold
and P. Robb (eds), Institutions and Ideologies: A SOAS South Asia Reader (Curzon Press,
1993), pp. 165–85, at p. 169.

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,    
religious law reform. From the Pakistani period, the postcolonial state in
Bangladesh inherited the 1961 Muslim Family Laws Ordinance (MFLO).
In many ways a radical piece of legislation, the MFLO altered inheritance
patterns for orphaned grandchildren in ways considered by many reli-
gious authorities in direct contravention of Shar’ia law.26 Until today, this
provision of the MFLO is subject to vocal protest, most recently during
large-scale rallies of the Hefazat-e-Islami movement in Dhaka in 2013,
demanding (in addition to twelve further points) the ‘abolishment of
anti-Islamic inheritance laws’. Besides altering the law of inheritance, the
MFLO also established a central role for the state in the administration of
Muslim family law.
It prohibits the practice of so-called ‘verbal divorce’ (effected by a
husband uttering the word ‘talaq’ three consecutive times). Under the
MFLO, all Muslim marriages have to be registered with the state, and
any divorce of such marriage can only take effect if submitted in
writing to the chairman of the local administrative council and
subject to a ninety-day mediation phase aimed at the restoration of
marital life. While welcomed by women’s rights organizations, the
MFLO provoked severe resistance among the community of religious
scholars in Pakistan who understood it to be a direct attack on their
authority.27
From the liberation movement, the state inherited the initial emphasis
on secularism as a foundation of the state. Yet this notion of secularism
was always subject to interpretation and contestation. Between 1975 and
1991, Bangladesh was governed by two military dictatorships, both of
which deployed religious language as a legitimating device.28 The ﬁrst
dictator, General Ziaur Rahman, changed the principle of secularism to
an emphasis on ‘absolute trust and faith in the Almighty Allah’ in the
preamble as well as a new subclause (1A) of the Bangladeshi constitution.
The second one, General Husain Md. Ershad, altered the constitution in
1988 by introducing the Eighth Amendment that declared Islam to be the

26
M. J. Nelson, In the Shadow of Shari’ah: Islam, Islamic Law, and Democracy in Pakistan
(Columbia University Press, 2011); M. J. Nelson, ‘Inheritance Unbound: The Politics of
Personal Law Reform in Pakistan and India’, in S. Khilnani, V. Raghavan and A. K.
Thiruvengadam (eds), Comparative Constitutionalism in South Asia (Oxford University
Press, 2012), pp. 219–46.
27
M. Ahmad, ‘The MFLO of Pakistan’ (1993) 10 International Journal on World Peace
37–46, at 42–3.
28
A. Riaz, ‘“God Willing”: The Politics and Ideology of Islamism in Bangladesh’ (2003) 23
Comparative Studies of South Asia, Africa and the Middle East 301–20.

29
Ershad’s amendment also further ‘indigenized’ national identify by changing the spelling
of ‘Bengali’ to ‘Bangla’ and ‘Dacca’ to ‘Dhaka’.
30
Riaz, ‘God Willing’, 308–11.
31
This decision currently seems highly controversial as in the run-up to the national
elections in January 2014, the Election Commission has withdrawn the registration of
the Jamaat-e-Islami. A High Court verdict from November 2013 conﬁrmed the deregis-
tration of the Jamaat-e-Islami. The judges argued that although Islam is the state religion
under article (2A), ‘the Jamaat had misinterpreted Islam from its inception’ (quoted in
The Dhaka Tribune, 4 November 2013).
32
Constitution of the People’s Republic of Bangladesh, P.O. No. 76 of 1972, 4 November
1972, website of the Bangladeshi Ministry of Law, http://bdlaws.minlaw.gov.bd/sections_
detail.php?id=367&sections_id=24549, accessed 7 November 2013. This is the slightly
altered version of 2011. The earlier version from 1988 read: ‘[t]he state religion of the
Republic is Islam, but other religions may be practiced in peace and harmony in the
republic’. Quote taken from www.law.emory.edu/iﬂ/legal/bangladesh.htm, accessed on
7 November 2013.

2.5 Denial
On 1 January 2001, a Division Bench of the High Court Division of the
Supreme Court of Bangladesh delivered what many national and inter-
national observers at the time considered to be a landmark judgement.
On its own initiative and without having been approached by any party,
the court has issued a suo moto ruling in reaction to a news item reported
in the Bangladeshi newspaper Daily Bangla Bazar Patrika on 2 December
2000. The ruling questioned local authorities of Naogaon district
regarding their failure to act against an illegal fatwa. The fatwa had
directed a young woman of Naogaon to undertake an intervening mar-
riage after an alleged verbal divorce to restore marital life with her
previous husband. According to the news report, Saiful Chunnu of
Naogaon village had pronounced ‘talaq’ (‘divorce’) to his wife Shahid
more than a year ago, yet the couple had reconciled and continued
marital life. As Saiful Chunnu spent a few days away from their village
on family business, a neighbour claimed to have heard the pronounce-
ment of ‘talaq’ and issued a fatwa directing Shahid to undergo a so-called

33
D. Siddiqi, ‘Islam, Gender, and the Nation: The Social Life of Bangladeshi Fatwas’, in
D. Heath and C. Mathur (eds), Communalism and Globalization in South Asia and Its
Diaspora (Routledge, 2011), pp. 181–203, at pp. 200–1.
34
W. B. Hallaq, The Impossible State: Islam, Politics, and Modernity’s Moral Predicament
(Columbia University Press, 2013).

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  
hilla (intervening) marriage with another man from the village. Upon his
return and learning about the forced hilla marriage, Saiful Chunnu
refused to continue their marriage and sent Shahid back to her father’s
house. While highlighting the persistence of patriarchal power relations,
the case is rather unambiguous in the legal terms of the state. Both
intervening hilla marriages and verbal divorce (whether by uttering
‘talaq’ once or thrice) are in violation of Section 7 of the MFLO; in
addition, causing people to believe that they will become objects of
Divine displeasure is punishable under Section 508 of the Penal
Code.35 The court’s condemnation of the local authorities’ failure to act
is thus neither surprising nor controversial.
While singling out the fatwa case from Naogaon, the court’s verdict
unfolds against the backdrop of deeper societal controversies over fatwa
practices. As Dina Siddiqui has shown, since the early 1990s approxi-
mately thirty-five to sixty fatwa cases have annually gained attention in
the national press.36 This does not mean that fatwa are a recent phenom-
enon; it only indicates the increased visibility of certain kinds of fatwa
verdicts after the return to electoral democracy in 1990 and the correla-
tive improvements in freedom of speech. The fatwa cases that attract the
attention of a larger audience often involve extreme displays of violent
enforcement, frequently targeted against women’s bodies. One of the first
fatwa cases discussed at the national level was the case of Nurjahan in
1993. After having obtained a divorce from her first husband, Nurjahan
rejected the proposal of an influential member of the village community
and decided, instead, to marry a landless youth of her choice. Enraged by
the refusal, the influential village elder initiated a shalish court and
prompted a local religious figure to issue a fatwa against Nurjahan and
her second husband for adultery. Although the same figure had previ-
ously verified the state-sanctioned divorce of Nurjahan and her first
husband, he subsequently disputed the validity of the divorce papers
produced in the shalish session, in which Nurjahan, her husband and
the guests attending their wedding party were condemned to acts of
severe public humiliation. Based on her meticulous reconstruction of
the complexity of local power structures, Dina Siddiqui has shown how

35
F. Pereira, ‘Introduction’ (2002) 4 Interventions 212–14; S. Hossain, ‘High Court Nails
Fatwa’ (2002) 4 Interventions 220–3; A.-U. Zaman, ‘Fatwa and the High Court’ (2002) 4
Interventions 233–6.
36
D. Siddiqi, ‘Crime and Punishment: Laws of Seduction, Consent, and Rape in Bangladesh’
(2011) 1 Social Difference Online 46–54, at 47.

It is this broader discursive universe, in which questions of fatwa verdicts

intimately link to questions of national identity and the legacies of the
liberation movement that the High Court’s verdict is articulated in
January 2001.
As argued earlier in this section, the verdict against the speciﬁc fatwa
under scrutiny seems neither surprising nor especially controversial.
Much more controversial than the condemnation of the individual case,
however, were the broader implications that the court sought to extrapo-
late from the case it had decided to pursue. First, it concluded that all
fatwa are illegal. As the court argued: ‘Fatwa means legal opinion which,
therefore, further means legal opinion of a lawful person or authority.
[The] [l]egal system of Bangladesh empowers only the Courts to decide
all questions relating to legal opinion on the Muslim and other Laws as in
force. We, therefore, hold that any fatwa including the instant one are all
unauthorised and illegal.’39 Furthermore, the court called upon parlia-
ment to make the issuing of fatwa a punishable offence, even if the fatwa
was not executed. In addition, the court’s verdict also recommended the
inclusion of the (until today highly controversial) MFLO in the Friday
sermons and argued for the creation of a unitary education system,
including religious educational institutions:

37
Siddiqi, ‘Islam, Gender, and the Nation’, p. 189.
38
D. Siddiqi, ‘Transnational Feminism and “Local” Realities: The Imperiled Muslim
Woman and the Production of (In)Justice’ (2011) 9 Hawwa 76–96, at 81.
39
Quoted in the Daily Star Law Report, 7 January 2001. Reproduced in ‘The Fatwa in
Question Is Wrong’ (2002) 4 Interventions 228–32, at 231.

In effect, this line of argument amounted to a hardly concealed attack on

entrenched religious authorities and their standing within established local
power structures. Rather than limiting itself to the already justiciable
prosecution of the violence inflicted under the seeming cover of religious
justification, the verdict constitutes a radical attempt at affirming the
superiority of the state over societal sources of law and legal reasoning
tout court. What is remarkable about the case decided on 1 January 2001 is
thus neither the indictment of the inaction of local state authorities nor the
condemnation of the individual fatwa but the vehemence with which it
draws much broader conclusions about the relationship of state and non-
state law, especially in its religious manifestations. By calling upon the state
to enforce public morality and educate society, it seeks to disentangle the
complex legal architecture of family relations, especially in rural parts of
the country, from religious influences. This denial as a radical form of
distancing, which aims at the creation of the greatest distance possible
between entangled legalities, unsurprisingly encountered strong resistance.
Demanding the subordination of state law to religious principles, several
Islamic organizations, including both political parties and religious educa-
tional institutions, organized a general strike, disrupting public life and
leading to violent confrontation with law enforcement agencies. Religious
scholars also appealed the judgement in the Appellate Division of the
Supreme Court. The Supreme Court, in turn, stayed the verdict exactly
two weeks after it had been first pronounced. Attempts at denying the
entanglements between the state laws and religious authorities (however
defined) had come to a standstill. What emerged, instead, was a politics of
deferral.

40
Ibid.

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,    
2.6 Deferral
After the Supreme Court had stayed the verdict in January 2001, initially
for a mere six weeks, it took more than a decade before the legal status of
fatwa was to reappear at the court. Confronted with hardened positions
between secular-nationalist and religious camps, the court decided not to
pursue the case further. Instead of aiming for legal clarity, the court
settled for a politics of deferral where the legal status of fatwa remained
undecided. Initially, the deferral coincided with a change in political
climate. While the original judgement was passed during the last days
of the Awami League-led government, in October 2001 the Bangladesh
Nationalist Party (BNP), in coalition with three smaller parties, including
religious ones, won the elections. Although recent scholarship has shown
how the ideological differences between the Awami League and the BNP
seem exaggerated in both public imagination and scholarly discourse,41
the BNP’s return to power in 2001 did amplify the voice of small yet
highly organized Islamic political parties. Operating in a precarious
balance of different political forces, the erstwhile very vocal defendants
of the so-called ‘fatwa ban’ settled for a strategy of deferral, especially at
the constitutional level. While the case seemed to be lingering and almost
forgotten, its deferral was actually not caused by inaction but hard work,
requiring myriad interventions to make sure that no judgement was
forthcoming. One close observer and longstanding participant in the
judicial contestation over the status of fatwa summarized the politics of
deferral that emerged as follows:
And then [after the Supreme Court had stayed the verdict in 2001], we
ran a ten-year job to make sure that this case did not get heard too early,
because at various points there were very worrying constructions of the
bench and so on – and we were worried that if the case got heard that we
would end up with a Supreme Court ﬁnding [. . .] saying that there is a
fundamental right to issue fatwa.42

The decision on the constitutional status of fatwa thus remained

undecided – until 2011.
In 2011, the Appellate Division of the Supreme Court reopened the
case and endorsed, at least in part, the appeal that had been ﬁled against
the initial High Court verdict on the illegality of fatwa. Contra the High

41
M. Hassan and S. Nazneen, ‘Violence and the Breakdown of the Political Settlement: An
Uncertain Future for Bangladesh?’ (2017) 17 Conﬂict, Security & Development 205–23.
42
Interview by author with senior legal counsel, Dhaka, January 2012.

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  
Court judgement, it declared fatwa legal, but only if it was (1) passed by a
‘learned person’, and (2) only applied to ‘religious matters’. Yet on both
of these important qualifications the judgement remained conspicuously
vague. It neither defined the ingredients necessary to qualify as a ‘learned
person’ nor delineated what precisely constituted a ‘religious matter’. The
ambiguity surrounding the judgement further increased as the Supreme
Court did not publish the full judgement until 2015, forty-four months
after the verdict had been actually passed and communicated as a brief
statement.43 When the full judgement was eventually published, it still
refrained from these crucial specifications of what qualifies ‘properly
educated persons’ to issue fatwa in ‘religious maters’, and what exactly
these religious matters comprised. Even as the Supreme Court formerly
settled the case, the politics of deferral thus continued, as the precise
status of fatwa within the complex legal architecture of Bangladesh
remained an unsettled question and open to competing interpretations.
While deferring the conclusive settlement on the constitutional status
of fatwa required the continuous work by the parties involved in the
case, it also allowed human right’s activists to disentangle the legal
condemnation of violence against women from broader questions
about the status of religious law. While these broader questions
remained deferred, the judgement nonetheless explicitly stated that
‘no punishment including physical violence or mental torture in any
form can be imposed or implicated on anybody in pursuance of [a]
fatwa’.44 The Supreme Court’s judgement thus overturned the High
Court’s decision to ban fatwa in 2001 but upheld another High Court
decision from 2010 on the illegality of extrajudicial punishment. This
2010 High Court decision, in turn, came in response to three writ
petitions filed by five prominent human rights organizations in
Bangladesh, the Bangladesh Legal Aid and Services Trust, Ain-o-
Shalish Kendro, Bangladesh Mahila Parishad, BRAC and Nijera Kori.
These organizations are exceptionally skilful socio-legal actors, and
their strategic choices have paved a distinct pathway to legal entangle-
ment. Most of the organizations had already been at the forefront of the
judicial process leading to the fatwa ban in 2001. A decade later, their

43
A. Sarkar, ‘Fatwa Must Not Violate Laws, SC Says in Full Verdict’, Daily Star, 26 January
2015, www.thedailystar.net/fatwa-must-not-violate-laws-61702.
44
Quoted in T. Huda, ‘Zero Tolerance for Fatwas that Violate Human Rights’, Daily Star,
23 December 2017, www.thedailystar.net/opinion/human-rights/zero-tolerance-fatwas-
violate-human-rights-1509055.

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,    
writ petitions constitute an attempt at disentangling the inflection of
violence, often against women, from questions of Islam and Islamic law.
Starting from the observation that the first judgement declaring fatwa
illegal was ‘very poorly reasoned’, one human rights activist describes
how these five organizations at the time ‘thought that somehow we had
to clarify this whole question: what is a fatwa, what is not a fatwa, and
what is the nature of this violence? And to bring the conversation, the
discussion, the judicial exercise back to a discussion about the consti-
tution and law, rather than religion and religious rights. We had to take
it out of that space.’45 Taking the violence perpetrated against women
out of the space of contestations over religious-cum-legal authority is
an act of disentanglement. It aims to dissociate the pathologies of
patriarchal power structures in Bangladesh from questions of religious
rights within a constitutional framework. At the same time, while
disentangling questions of violence and questions of fatwa, the argu-
mentative architecture built carefully by the five human rights organ-
izations did include new entanglements with international norms. As
the activist already cited argues, in the final court hearing the organiza-
tions were very careful to advance the following argument:
we as Bangladeshi organisations working in Bangladesh within the frame-
work of the Bangladesh constitution, but also within the framework of
International Human Rights obligation that pertain on our government,
have this interpretation. Our interpretation is that we want to have a very
clear condemnation of the violence perpetrated in the name of fatwa. We
do not want a debate what is and is not fatwa under religious law, we are
not before a religious court, but before a constitutional court, so we want a
constitutional interpretation. Our constitution clearly says: all forms of
cruel and degrading punishment are prohibited.46

This argument, in turn, was supported by frequent references to CEDAW

and its strict condemnation of all kinds of cruel and degrading punish-
ments. The making and unmaking of legal entanglements in this case
illustrates the importance of strategic choices of individual actors. As
outlined in Chapter 1, strategic choices constitute one of the possible
pathways in which entangled legalities come about. In this case, entan-
gling and disentangling legalities coincided as Bangladeshi human rights
organizations very deliberately sought to forge certain connections while
releasing others.

45
Interview by author with senior legal counsel, Dhaka, January 2012.
46
Ibid.

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  
2.7 Translation
The processes of distancing and approximation analysed as ‘denial’ and
‘deferral’ in Sections 2.5 and 2.6 play out in a context of confrontation
between secular-nationalist and Islamic narratives deployed by different
actors to lay claims upon the state and its constitutional order. At times,
these claims have been laid quite violently, for example, in the repeated
physical attacks on secular women’s rights NGOs by seemingly religious
actors throughout the 1990s or in the equally violent crackdown on
members of the Jamaat-e-Islami by the seemingly secular Awami
League government in the run-up to the 2014 election. While the divid-
ing line between the religious and the secular is frequently staged in
exceedingly violent spectacles in Bangladesh, recent scholarship has cast
serious doubts on the social embeddedness of this divide. Analysing the
confrontation between religious actors and secular NGOs over questions
of women’s economic empowerment in rural areas throughout the 1990s,
Sarah White has shown how ‘the substance of the NGO–“Mullah”
confrontation lay indeed in the symbolic, or political, capital that each
side could derive from it, rather than this signifying any more structural
antagonism between “Islam” and the expansion of women’s economic
activity’.47 Analysing the multifaceted dynamics of entangled legalities in
rural Bangladesh thus requires moving beyond the confines of both
secular and religious elite discourses as they circulate in Dhaka’s higher
judicial institutions and national media outlets. In contrast to urban
elites, the grassroots-level fieldworker and activists in rural Bangladesh
often need to navigate significantly more complex legal landscapes that
eschew dichotomous confrontations between Islam and secular
nationalism.48
To carve out emancipatory spaces for poor and marginalized people,
and women in particular, activists in rural Bangladesh simultaneously
draw on multiple, often quite different, normative registers. While the
upper echelons of Bangladesh’s vibrant NGO sector frequently disregard
piety and religious registers as tools for local struggles, Elora
Shehabuddin has shown how grassroots-level staff of these organizations
regularly draw on religious arguments in their everyday work. The

47
S. C. White, ‘Beyond the Paradox: Religion, Family and Modernity in Contemporary
Bangladesh’ (2012) 46 Modern Asian Studies 1429–58, at 1441.
48
E. Shehabuddin, Reshaping the Holy: Democracy, Development, and Muslim Women in
Bangladesh (Columbia University Press, 2008), p. 30.

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,    
examples she cites range from Islamic condemnations of violence against
women (for example by invoking the example of the Prophet
Mohammed) to religious sanctions for girls’ education and the use of
contraception.49 Often materially dependent on international funding,
this kind of grassroots-level activism in rural Bangladesh thus needs to
straddle the normative expectations of very different audiences.
Elsewhere, I have argued that the notion of translation offers a productive
way to capture the work local activists do in their attempts to straddle
these different normative expectations as well as the different legal
systems in which these expectations are embedded.50 Rather than distan-
cing or approximation, the notion of translation refers to the transform-
ation of legalities that occurs as norms move back and forth between
different contexts where they become embedded in deep webs of pre-
existing institutions, practices and normative aspirations. In what
follows, I use this notion of translation to illustrate a third mechanism
by which different legalities become entangled.
I analysed a series of such translations between 2011 and 2012
throughout my ﬁeld research on the recursive interactions between
transnational liberal norms and local non-state justice institutions in
Bangladesh.51 Responding to a growing fatigue with conventional rule
of law reform programmes that exclusively target state institutions,
mostly in the Global South, non-state justice institutions have recently
reappeared on the agenda of international donor organizations as one
possible avenue for the promotion of human rights and the rule of law.
One of the largest projects this recent interest in non-state justice insti-
tutions has given rise to aims at ‘activating’ the village courts in
Bangladesh. The village court is a quasi-formal institution whose setup
and operational logic closely resembles the non-state institution of the
shalish. Yet, in contrast to the shalish, the state does recognize the village
courts as legitimate sites for the trial of minor civil and criminal cases if
they adhere to certain procedural requirements laid down in the
2006 Village Court Act. This focus on civil and criminal cases renders
the village courts a seemingly secular institution, as in Bangladesh (like in
India and Pakistan) the respective Civil and Criminal Codes are based on
secular law, whereas Family Law is based on religious sources codiﬁed by
the state, for example, in the MFLO discussed in Section 2.4. As several

49
Ibid., p. 102.
50
Berger, Global Norms and Local Courts.
51
Ibid.

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  
representatives of international donor agencies confirmed throughout
my fieldwork, one key attraction of the village courts as sites for
interventions was precisely their seeming ability to bypass the
entire ‘fatwa problematique’ discussed in Sections 2.5 and 2.6.52 As they
understood the village courts as quasi-formal institutions dealing with
conflicts governed by secular law, they simply did not expect religious
arguments or religious authorities to figure prominently in their project
activities.
Contra their expectations, religion did figure prominently as the field-
workers and court assistants employed by local NGOs at grassroots levels
for the implementation of the project regularly engaged in vivid religious
argumentations. Many of these argumentations involved women’s stand-
ing in processes of conflict resolution, which – in turn – frequently
escaped neat distinctions between civil, criminal and family disputes.
Often, questions of physical insult or disputes over land ownership are
intimately tied to family conflicts, rendering distinctions between differ-
ent sets of state law difficult in practice. In reality, religious lines of
argument played important roles as the resolution of conflicts falling
under civil or criminal law repeatedly required the simultaneous inter-
vention in disputes within the realm of family law. In these interventions,
religious arguments were drawn upon. In the case of fatwa, for example,
many fieldworkers and court assistants argued that local religious author-
ities lacked the training to give binding interpretations of Islamic law.
Similarly, they emphasized the religious obligation of husbands to issue
security payments before marrying their wives (morhana) and main-
tained that verbal divorces without the state-prescribed ninety-days
mediation phase were, in fact, ‘Un-Islamic’. Ironically, while inter-
national donor agencies sought to strengthen quasi-formal institutions
for the resolution of civil and criminal conflicts, the fieldworkers and
court assistants implementing the project argued, in many ways, that
only the state had both the authority and the legitimacy to interpret
Islamic family law. These acts of translation entangle international and
local legalities in novel ways, thus allowing grassroots-level employees of
Bangladeshi NGOs to carve out participatory spaces for women in a
discursive environment otherwise characterized by a dichotomous con-
frontation between Islam and secular nationalism.

52
Interview by author with representative of the United Nations Development Program,
Dhaka, March 2012.

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,    
2.8 Conclusions
As a paradigmatic developing country, Bangladesh exemplifies the com-
plexities of legal entanglements as they unfold in most of the world.
Indeed, as argued in Chapter 1, the ideal type of closed, coherent and
unitary legal systems that carefully guard their boundaries with clearly
defined reception norms while ordering internal plurality hierarchically
and unambiguously has been historically the exception rather than the
rule. Navigating complex and contradictory legal landscapes often
requires the mastery of ‘straddling practices’, in which the boundaries
between different sets of norms loosen at the edges and become more
fuzzy. As I have argued in this chapter, the conditions of postcolonial
statehood are highly conducive to zooming in on these fuzzy rather than
clearly demarcated boundaries between different legal systems.
Theorizing legal entanglements from the postcolonial space of
Bangladesh, I have identified three distinct modes in which actors seek
to forge specific entanglements between different sets of norms. In the
case of denial, empirically existing entanglements are acknowledged
while their normative and legal validity is denied. Deferral as a mode of
entanglement eschews fixity and, instead, thrives on ambiguity and
imprecision. Here, the precise relationship between different sets of
norms is deliberately left open by postponing a conclusive verdict on
their hierarchical order. In contrast to legal theorists who equate impre-
cision with disorder and instability, the empirical excavation of processes
of continued deferral as a mode of entanglement in Bangladesh has
shown how it actually can become a source of stability in situations
where a given relationship between different sets of norms should not
be altered without leaving at least one party deeply dissatisfied. Yet, as
I have shown, also keeping the final arrangements between competing
sets of norms unsettled requires continued and ardent work; the mere
fact that nothing seems to change is no indication of inaction but is
instead the product of continued legal labour by multiple actors, in the
case at hand primarily NGOs and representatives of religious institutions.
Like denial and deferral, translation as a mode of entangling legalities
also depends on the proactive work of individual actors. In translations,
the content of norms is transformed as they move back and forth
between different contexts. While resonating in the receiving context,
translations nonetheless retain the mark of the foreign, thus constituting
a particular kind of entanglement in which norms are neither fully
integrated nor wholly kept apart but made recognizable across different

To Be Is to Be Entangled
Indigenous Treaty-Making, Relational Legalities
and the Ecological Grounds of Law

  

3.1 Introduction
How are we entangled? I invite you to breathe in. Can you feel the air
enter your nostrils and lungs, and then be expelled? Try it again. With
some practice you may no longer feel ‘you’ and ‘the air’, but simply a
sensation that appears in consciousness. From this and a multitude of
other metabolic processes, your body is literally constructed and decon-
structed daily through exchanges – the activities of breathing, eating,
shedding – with your environment. At an atomic level, it is not even easy
to tell where the boundary between the self and the environment lies.
Between the electrons and the nucleus that make up the apparent solidity
of your skin is a distance the equivalent of something like that between
the Sun and Jupiter. Electrons that are ‘part of’ your skin can be dis-
charged in a current, and, indeed, have no distinct location (or other
deﬁnite properties) but exist as a set of probable states expressed as a
wave function (indeed, as energy).1
The human minds that ﬁnd these aspects of quantum mechanics
counterintuitive have evolved, slowly and over millennia, a form of
intuition matched to the mechanics of what is visible and touchable,2
a musculoskeletal system adapted to gravity on earth, and a nervous
system capable of responding to prevalent threats and resources in
furtherance of survival. Generalized throughout ecosystems, this

1
M. Humphrey, P. Pancella and N. Berrah, Quantum Physics (Alpha Books, 2015),
chapter 9.
2
This may correspond to Newtownian physics or even earlier theories: see B. Sherrin,
‘Common Sense Clariﬁed: The Role of Intuitive Knowledge in Physics Problem Solving’
(2006) 43 Journal of Research in Science Teaching 535–55.



3
K. Balaramen, ‘Whales Keep Carbon Out of the Atmosphere’, Scientiﬁc American,
11 April 2017, www.scientiﬁcamerican.com/article/whales-keep-carbon-out-of-the-atmos
phere/.
4
V. Gallese and G. Lakoff, ‘The Brain’s Concepts: The Role of the Sensory-Motor System in
Conceptual Knowledge’ (2005) 22 Cognitive Neuropsychology 455–79, at 456.
5
E. Kohn, How Forests Think: Towards an Anthropology beyond the Human (University of
California Press, 2013), pp. 20, 37. On constitutive absences, see T. W. Deacon, Incomplete
Nature: How Mind Emerged from Matter (Norton, 2006), p. 3.
6
See R. Feynman, R. Leighton and M. Sands, The Feynman Lectures on Physics (Addison-
Wesley, 1965), Vol. 3, §1-4–§1-6, www.feynmanlectures.caltech.edu.
7
And once one aspect of that state is measured – its location, for instance – other of its
properties can no longer be determined, as per Heisenberg’s uncertainty principle: see
ibid., §1-8.

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manufacturers and policy-makers, as well as a shared system of signs and
representations.8
I have begun with the lessons of (to take them in rough order)
mindfulness, dialectics, quantum mechanics, ecology, phenomenology,
cognitive psychology, evolutionary semiotics, anthropological post-
humanism and actor-network theory to make the point that you and
I have multiple ways of grasping entanglement. However, my purpose in
this chapter is not to then notice that law is yet another ‘thing’ that
becomes entangled or is made by entanglement, although I hold this to
be sometimes a useful way of seeing the world. Socio-legal theory, for
example, has embraced the dialectic idea that ‘law’ and ‘society’ are co-
constituted through processes of argumentation, proof, naming and
claiming, record-keeping, monitoring and all forms of performance,
discipline, enactment, representation and discourse. Intersecting legal
orders may produce particular formulations of one another through
processes of ‘recognition’, on which social actors act, so that those actors
then become in some measure part of the changing reality of each of
those orders.9 Rather than entangled legalities, though, in this text I am
interested in legalities of entanglement – forms of legality adapted to the
ontological entanglement in which we ﬁnd ourselves. It has been noted
that one reason for the various ecological crises we face is that dominant
forms of law have become dysfunctionally oblivious to human interde-
pendence with the living world.10 Seeking to understand or develop
legalities of entanglement engages with the normative project of develop-
ing what has been labelled ‘Earth jurisprudence’ or law imagined in
ecological terms.11
In this chapter, I would like to suggest ways in which many Indigenous
legalities provide examples of law borne out of entangled ways of being.
From where I am writing, in Canada, invoking Indigenous legalities also
engages with the normative project of settler-colonial reconciliation and

8
K. Barad, Meeting the Universe Halfway: Quantum Physics and the Entanglement of
Matter and Meaning (Duke University Press, 2007), p. 22.
9
See K. Anker, Declarations of Interdependence: A Pluralist Approach to Indigenous Rights
(Ashgate, 2014).
10
F. Capra and U. Mattei, The Ecology of Law: Toward a Legal System in Tune with Nature
and Community (Berrett-Koehler Publications, 2015); K. Bosselman, The Principle of
Sustainability: Transforming Law and Governance, 2nd ed. (Routledge, 2016); F. Ost, La
Nature Hors la Loi, l’Ecologie à l’Épreuve du Droit (La Découverte, 1995).
11
P. Burdon (ed.), Exploring Wild Law: The Philosophy of Earth Jurisprudence (Wakeﬁeld
Press, 2011).

12
V. Napoleon and H. Friedland, ‘Gathering the Threads: Developing a Methodology for
Researching and Rebuilding Indigenous Legal Traditions’ (2015–16) 1 Lakehead Law
Journal 16–44, at 20.
13
J. Tully, ‘Reconciliation Here on Earth’, in J. Tully, J. Borrows and M. Asch
(eds), Resurgence and Reconciliation: Indigenous–Settler Relations and Earth Teachings
(University of Toronto Press, 2018).
14
See K. Polanyi, The Great Transformation: The Political and Economic Origins of Our
Times (Beacon Press, 2001) on the market society or V. Plumwood on a form of gendered
rationality in Feminism and the Mastery of Nature (Routledge, 1993) and Environmental
Culture: The Ecological Crisis of Reason (Routledge, 2002).
15
D. Haraway, ‘Anthropocene, Capitalocene, Plantationocene, Chthulucene: Making Kin’
(2015) 6 Environmental Humanities 159–65.
16
See H. King and S. Pasternak, Canada’s Emerging Indigenous Rights Framework:
A Critical Analysis (Special Report of the Yellowhead Institute, 2018), https://
yellowheadinstitute.org/rightsframework/.
17
Tully, ‘Reconciliation Here on Earth’, p. 84.

18
See for instance, L. S. G. Finch, ‘The Duty to Learn: Taking Account of Indigenous Legal
Orders in Practice’, paper presented at the ‘Indigenous Legal Orders and the Common Law’
British Columbia Continuing Legal Education Conference (Vancouver, November 2012),
www.cerp.gouv.qc.ca/ﬁleadmin/Fichiers_clients/Documents_deposes_a_la_Commission/P-
253.pdf, 20.
19
B. Slattery, ‘The Generative Structure of Aboriginal Rights’ (2007) 38 Supreme Court Law
Review 595–628; J. Webber, ‘Relations of Force, Relations of Justice’ (1995) 33 Osgoode
Hall Law Journal 623–60.
20
B. Miller, ‘An Ethnographic View of Legal Entanglements on the Salish Sea Borderlands’
(2014) 47 UBC Law Review 991–1023.
21
A. Mills, ‘What Is a Treaty? On Contract and Mutual Aid’, in J. Borrows and M. Coyle
(eds), The Right Relationship: Reimagining the Implementation of Historical Treaties
(University of Toronto Press, 2017). My objective is to bring that work to bear on the
theme of this volume, so that the difference between ‘entangled legalities’ and ‘legalities of
entanglement’ comes more sharply into focus.

3.2 Colonial Encounters and Normative Pluralism

Colonial encounters in North America produced a range of plural legal
phenomena when the ‘visitors who never left’ – European ﬁshers, fur
traders, religious orders, soldiers, farmers, entrepreneurs and others –
were variably integrated into local kinship networks, trade alliances and
treaties, and when the original peoples – Mi’kmaq, Innu, Eeyou,
Anishinaabe and Haudenosaunee ﬁshers, hunters, agriculturalists, war-
riors, medicine people and others – were variably integrated into
imported forms of education, economics and law. Historical accounts
demonstrate different degrees and kinds of entanglement. In the termin-
ology used in Chapter 1 by Nico Krisch, one can see the adoption, from

22
R. Williams, Linking Arms Together: Indian Treaty Visions of Law and Peace 1600–1800
(Routledge, 1999), p. 113.
23
A common name for North America deriving from widespread creation stories that
recount the emergence of the land from the back of a turtle.
24
See G. Coulthard, Red Skin, White Masks: Rejecting the Colonial Politics of Recognition
(University of Minnesota Press, 2014) and A. Simpson, Mohawk Interruptus: Political Life
across the Borders of Settler States (Duke University Press, 2014).

25
M. Pomedli, ‘Eighteenth-Century Treaties: Amended Iroquois Condolence Rituals’
(1995) 19 American Indian Quarterly 319–39; A. Wallace and T. Powell, ‘How to Buy
a Continent: The Protocol of Indian Treaties as Developed by Benjamin Franklin and
Other Members of the American Philosophical Society’ (2015) 159 Proceedings of the
American Philosophical Society 251–81; J. R. Miller, Compact, Contract, Covenant:
Aboriginal Treaty-Making in Canada (University of Toronto Press, 2009), pp. 11–32.
26
See Chapter 1.
27
Webber, ‘Relations of Force and Relations of Justice’; R. White, The Middle Ground:
Indians, Empires, and Republics in the Great Lakes Region, 1650–1815 (Cambridge
University Press, 1991).
28
See Chapter 1.
29
J. Borrows and L. Rotman, Aboriginal Legal Issues: Cases, Materials and Commentary, 4th
ed. (LexisNexis, 2012), pp. 14–16.
30
M. Walters, ‘The “Golden Thread” of Continuity: Aboriginal Customs at Common Law
and Under the Constitution Act, 1982’ (1999) 44 McGill Law Journal 711–52.

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  
British law.31 The longstanding practice of making trade and diplomatic
agreements formalized into an official British treaty-making policy with
the Royal Proclamation of 1763, which provided for an ‘interface norm’
of consent for the settlement of lands occupied by Indigenous ‘nations’ –
such lands would only be settled if ‘ceded to or purchased by’ the Crown
at ‘some public Meeting or Assembly of the said Indians’.32 These so-
called ‘cession’ treaties extended from Ontario in the east to parts of
British Columbia in the west from the 1780s to 1921; their written texts
read as a transaction in which Indigenous parties promise to ‘cede,
release and surrender’ their lands to the Crown in exchange for small
reserves, contingent hunting and fishing rights over the remainder of
their territories, payments and other promises like the provision of
education or medicine. An earlier era of treaties secured ‘friendship’
between the British and their Indigenous allies.33 The undertakings of
the Royal Proclamation itself were the subject of the Treaty of Niagara in
1764, at which 2,000 representatives of twenty-four Indigenous Nations
from the eastern regions of North America gathered to ‘join hands’ in the
Covenant Chain of friendship and alliance, in continuity of such treaties
with European colonists dating back to the 1600s.34
Treaty-making thus constituted the central ‘interface norm’ for
Indigenous and colonial polities for an extended period. Later, the
balance of power shifted in favour of the Europeans. Following confeder-
ation in 1867 the Canadian state assumed jurisdiction over Indigenous
peoples as subjects, and instigated a policy of assimilation.35 After a
century or more of official state denial of the existence or relevance of
Indigenous law, the constitutional recognition of ‘Aboriginal and treaty
rights’ with the promulgation of s. 35 of the Canadian Constitution Act
in 1982 opened the door to wider consideration of the place of
Indigenous legal orders, jurisdiction and sovereignty in modern
Canada. For historic treaties, constitutional recognition has meant

31
J. Borrows, ‘With or Without You: First Nations Law (in Canada)’ (1996) 41 McGill Law
Journal 629–65.
32
King George III of England, Royal Proclamation issued 7 October 1763, https://exhibits
.library.utoronto.ca/items/show/2470.
33
Such as the ‘Covenant Chain’ treaties in the seventeenth century, and the ‘Peace and
Friendship’ treaties in the eighteenth century: see Miller, Compact, Contract, Covenant,
chapter 2.
34
Ibid., pp. 70–3.
35
For a comprehensive history, see J. R. Miller, Skyscrapers Hide the Heavens: A History of
Native-Newcomer Relations in Canada, 4th ed. (University of Toronto Press, 2018).

3.3 Indigenous Treaty Jurisprudence

It is my contention that to see these interpretive differences with respect
to treaties in terms of different things that are consented to misses the
forest for the trees. For the whole structure of a contractual-style agree-
ment as the interface between normative orders – the means by which
individual norms might become entangled – treats contract as a neutral
meta-norm. However, an attentive turn to Indigenous treaty jurispru-
dence shows up the ways in which the contractual paradigm is deeply
implicated in the common (and civil) law traditions imported into
Canada but is inimical to the territory’s Indigenous forms of law. This
has dramatic implications for treaty interpretation; it also has signiﬁ-
cance for legal pluralist scholarship and our focus in this volume on the

36
R. v. Syliboy [1929] 1 DLR 30.
37
R. v. Sioui [1990] 1 SCR 1025, pp. 1068–9; R. v. Badger [1996] 1 SCR 771, pp. 52–4.
38
See, for example, M. Asch, On Being Here to Stay: Treaties and Aboriginal Rights in
Canada (University of Toronto Press, 2014); A. Craft, Breathing Life into the Stone Fort
Treaty: An Anishinabe Understanding of Treaty One (Purich Publishing, 2013); J. S. Long,
Treaty No. 9: Making the Agreement to Share the Land in Far Northern Ontario (McGill-
Queen’s University Press, 2010); R. T. Price (ed.), The Spirit of the Alberta Indian
Treaties, 3rd ed. (University of Alberta Press, 1999); Treaty 7 Elders and Tribal Council
with W. Hildebrandt, D. First Rider and S. Carter, The True Spirit and Original Intent of
Treaty 7 (McGill-Queen’s University Press, 1996).

39
Pomedli, ‘Eighteenth-Century Treaties’, 319.
40
Williams Jr, ‘Linking Arms Together’.
41
M. Walters, ‘“Your Sovereign and Our Father”: The Imperial Crown and the Idea of
Legal-Ethnohistory’, in S. Dorsett and I. Hunter (eds), Law and Politics in British Colonial
Thought: Transpositions of Empire (Palgrave Macmillan, 2010).
42
H. Johnson, Two Families: Treaties and Government (Purich Publishing, 2007), p. 82.
43
R. W. Kimmerer, ‘Learning the Grammar of Animacy’ (2017) 28 Anthropology of
Consciousness 128–34; J. Cruikshank, Do Glaciers Listen? Local Knowledge, Colonial
Encounters, and Social Imagination (University of British Columbia Press, 2005).
44
H. Bohaker, ‘“Nindoodemag”: The Signiﬁcance of Algonquian Kinship Networks in the
Eastern Great Lakes Region, 1600–1701’ (2006) 63 The William and Mary Quarterly
23–52.

The term ‘worldview’ undersells these connections, though, in that it

suggests simply a way of seeing rather than an actual world in which
people are engaged (similar to the difference between culture and ontol-
ogy that worries Paul Nadasdy).46
These entanglements at the ontological level give rise to speciﬁc kinds
of law. In her examination of documented accounts of Treaty 1 negoti-
ations, Aimée Craft notes how identiﬁcation with the land gave rise to an
ethos of responsibility, in contrast to the British concept of property:
Chief Ayee-ta-pe-pe-tung [. . .] spoke to the Queen’s negotiators about his
‘ownership’ and his view that rather than owning it, he was made of the
land. Other Chiefs relayed their view that they had a sacred responsibility
towards the land and that the future of the land was intimately linked to
the future of Anishinaabe children: ‘The land cannot speak for itself. We
have to speak for it.’47

Indeed, the treaties I have mentioned can be understood as modelled

after more pervasive forms of interdependence in the ‘natural’ world. Heidi
Stark argues that Anishinaabe stories demonstrate a continuity between
human–human treaties and human–animal relationships, both of which are
characterized by mutual respect and gift circulation – such as when the beaver
agree to offer themselves as food and the Anishinaabe commit to returning
their bones to the water and offering tobacco in thanksgiving.48 Aaron Mills
characterizes this as a form of ‘rooted’ constitutionalism which he calls ‘mutual
aid’, rooted because the practices of gifting and interdependence are learned
from, and continuous with, earthly relations. Earthly somethings – plants,
animals, bacteria, fungus, rocks, air and light – provide natural constraints to
human law, but more importantly, sustain it through a web of relations.49

45
Johnson, Two Families: Treaties and Government, p. 13.
46
P. Nadasdy, ‘The Gift in the Animal: The Ontology of Hunting and Human–Animal
Sociality’ (2007) 34 American Ethnologist 25–43.
47
Craft, Breathing Life into the Stone Fort Treaty, p. 94.
48
H. Stark, ‘Respect, Responsibility and Renewal: The Foundations of Anishinaabe Treaty
Making with the United States and Canada’ (2010) 34 American Indian Culture and
Research Journal 145–64, at 146. See also Borrows, ‘With or Without You’.
49
Mills, ‘What Is a Treaty?’ and Mills, ‘Miinigowiziwin: All That Has Been Given for Living
Well Together – One Vision of Anishinaabe Constitutionalism’, PhD thesis, University of
Victoria (2019), http://dspace.library.uvic.ca/handle/1828/10985.

3.4 Logics of Contract, Logics of Kinship

If interdependence is a way of being in the world, this brings a particular
inflection to our study of legalities. It is not so much that ecological
relatedness creates a norm of responsibility or obligations of gift-giving.
It is, as Mills so carefully lays out in his work, that kinship, interdepend-
ence and ‘mutual aid’ are logics that structure the way we think and act,
including the specific laws we come up with in service of them;51 they are
law as a mode of being alive.52 For this, the choice of the term ‘legalities’
rather than law or norm as the focus of this volume is inspired. Legality is
the most adjectival or adverbial of nouns; it speaks to the qualities of
being legal or acting in accordance with the law; it is modal rather than
categorical or concrete. A focus on legality allows us to ask not only ‘why
such and such a normative proposition is or isn’t good law, but also and
more foundationally [. . .] how a community comes to have a concept of
what law is and a view of its purposes’,53 to notice the ways in which ‘law
[is] so deeply embedded in the world that one can look anywhere and see
its reflection’.54
Here I will return to a view of treaties as transactional contracts that is
likely more familiar to most readers, in order to now shed light on the
legality that informs that understanding. Agreements with Indigenous
peoples were referred to in the language of contract in contemporary
colonial communications;55 the written documents themselves record
quid pro quo agreements in which the ‘Indians’ promise collaboration

50
J. Y. Henderson, ‘Ayukpachi: Empowering Aboriginal Thought’, in M. Battiste,
Reclaiming Indigenous Voice and Vision (University of British Columbia Press, 2000),
p. 262. See also G. Cajete, Native Science: Natural Laws of Interdependence (Clear Light
Publishers, 2000).
51
Mills, ‘Miinigowiziwin’, p. 24.
52
R. Macdonald, ‘Everyday Lessons of Law Teaching – Le quotidien de l’enseignement
juridique’ (2012) 3 Canadian Legal Education Annual Review 3–37, at 12.
53
Mills, ‘Miinigowiziwin’, p. 24.
54
B. Mann, ‘Afterward: The Death and Transﬁguration of Early American Legal History’, in
C. Tomlins and B. Mann (eds), The Many Legalities of Early America (University of
North Carolina Press, 2001), p. 447.
55
See examples in Miller, Compact, Contract, Covenant, p. 13.

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with the British,56 grant that the King may ‘hold, occupy, possess and
enjoy’ the land in question ‘irrevocably’ for ‘consideration’ or in light of
‘presents’,57 or ‘cede, release, surrender and yield up’ territories in
exchange for cash annuities and other benefits, for example.58 We have
already looked fleetingly at two ways in which these texts have come into
question as being representative of the nature of the agreements reached
between the parties. First, the wealth of research in the past few decades
on the oral negotiations shows that Indigenous parties did not cede title
to land (much less sovereignty) but were negotiating on the basis of
consensual coexistence and the sharing of land and resources.59 Second,
images like the Covenant Chain emphasize that, from the perspective of
Indigenous parties, treaties were relational – and thus involving a need
for ‘polishing’ or renewal as parties revisit their commitments to one
another and attend to evolving situations – rather than transactional,
constituted by a discrete moment in time that fixed parties’ rights with
respect to one another.60 These two points capture something of
the contrast between Indigenous treaty jurisprudence and contract.
However, the legality of interdependence that I introduced above allows
us to see that the transactional character of contract is just the tip of the
iceberg.
In exploring the broader ways of being that lie underneath contrac-
tarian logic, I am indebted to Mills’ comparative analysis of constitu-
tional logics in Canada/Turtle Island, one of the most thorough and
clearheaded that I have yet seen.61 Contracts, as we know, create obliga-
tions when two parties exercise their free will to make and accept binding
promises, in a ‘meeting of the minds’. Aside from these privately created
bonds, we are subject to other obligations created by legitimate political
authority – again, justified by the consent of the governed through the
putative ‘social contract’. The autonomous selves at the heart of this story

56
Such as the Peace and Friendship Treaties from 1752 and 1760–1, www.rcaanc-cirnac.gc
.ca/eng/1370373165583/1581292088522.
57
The language typical of the Upper Canada Land Surrenders from the 1780s to 1862, ibid.
58
The formula frequently used in the ‘numbered’ treaties of 1871–1921, ibid.
59
See references cited at n. 38.
60
J. Y. Henderson, ‘Empowering Treaty Federalism’ (1994) 58 Saskatchewan Law Review
241–329; M. Walters, ‘Brightening the Covenant Chain: Aboriginal Treaty Meanings in
Law and History After Marshall’ (2001) 24 Dalhousie Law Journal 75–138.
61
Mills, ‘What Is a Treaty?’ and Mills, ‘Miinigowiziwin’; A. Mills, ‘The Lifeworlds of Law:
On Revitilizing Indigenous Legal Orders Today’ (2016) 61 McGill Law Journal 847–84; A.
Mills, ‘Driving the Gift Home’ (2016) 33 Windsor Yearbook of Access to Justice 167–86.

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of obligations are of course deeply liberal ones, with capacities for self-
direction and rational choice. The relationship between humans set up by
the pattern of offer and acceptance is one of direct and strictly defined
reciprocity. Without contract, in the liberal story, we are disconnected,
even antagonistic, individuals;62 only the social contract and its appoint-
ment of a sovereign stop us from descending into Hobbes’ ‘war of all
against all’. Rights underwritten by the sovereign are also oppositional, a
power over things or others because their compliance is compelled;63
they secure negative liberty and freedom from our fellow humans; rights
and obligations, and the autonomy and self-interest they protect, square
up bilaterally in a zero-sum game.64 The disconnection extends to
humans’ ecological contexts as liberal legality collaborates with the
extractive ‘mastery’ of nature, and in turn underwrites the physical
alienation of peoples from land through commodification of the com-
mons and colonization.
In the logics of gift and mutual aid, Mills writes, treaty is not the means
to bring into relation atomistic persons in order to secure their liberty,
that is, their capacity to exercise their autonomy. Instead, persons are
always and already interdependent – the sum of their relations – and
treaties deepen their intentional participation in a complex circulation of
gifts through specific kinship forms.65 In place of the contractual struc-
ture offer/acceptance/consideration, where what is offered in response
corresponds directly to the initial offer, the response to gift is gratitude
that then moves us to reciprocate, although likely not directly, to the gift
giver.66 Alternatively, and this is a formulation seen often in treaty
records, Mills explains that mutual aid might be initiated through the
presentation of a need to one’s relatives that then inculcates a sense of
responsibility and initiates beneficent action: hence the language of peti-
tioning the King for ‘pity’ or protection in treaties.67 In this way, and
whether they are initiated as gifts or petitions, treaties are offered not as a
way for Indigenous peoples and non-Indigenous peoples to bind

62
Mills notes that even communitarian theorists hold that our social embeddedness is
simply a factor in how we are able to exercise individual autonomy rather than see it as
grounding a different understanding of the self: see Mills, ‘Miinigowiziwin’, p. 52.
63
Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law and
Church Law 1150–1625 (William B. Eerdmans, 2001), p. 16.
64
Mills, ‘Miinigowiziwin’, p. 101.
65
Mills, ‘What Is a Treaty?’
66
Mills, ‘Miinigowiziwin’, p. 102.
67
Ibid., p. 104.

68
Mills, ‘Miinigowiziwin’, pp. 35–7, 212. This is a particular instance of a larger problem
with political ‘recognition’: see P. Markell, Bound by Recognition (Princeton University
Press, 2003); D. Turner, This Is Not a Peace Pipe: Towards a Critical Indigenous
Philosophy (University of Toronto Press, 2006); Coulthard, Red Skin, White Masks.
69
The Two-Row Wampum (Kaswenta), a beaded belt with two parallel purple lines on a
white background and closely associated with colonial-era treaty-making, is often said to
represent a principle of non-interference – the European ship and the Haudenosaunee
canoe sail separately in the shared river. It thus looks at ﬁrst glance like an Indigenous (or
intercultural) endorsement of something akin to negative liberty. This wampum may well
have emerged in an era during which the original covenant had been forgotten by British
authorities (see D. Bonaparte, ‘The Disputed Myth, Metaphor and Reality of Two Row
Wampum’ (8 September 2013), http://indiancountrytodaymedianetwork.com/2013/08/
09/disputed-myth-metaphor-and-reality-two-row-wampum; and K. Muller, ‘The Two
“Mystery” Belts of Grand River: A Biography of the Two Row Wampum and the
Friendship Belt’ (2007) 31 American Indian Quarterly 129–64). Stepping back from
efforts to quash and undermine Indigenous legal orders is a necessary redress of imperial
relations. However, it is only an initial remedial step, and it would be a mistake to assume
that non-interference as a liberal value of negative liberty is an end goal of treaty. A more
fulsome reading of the Two-Row, which includes the three alternating white lines
representing peace, friendship and respect (J. Borrows, Recovering Canada: The
Resurgence of Indigenous Law (University of Toronto Press, 2002), p. 149), is consistent
with the ethos of relationality found throughout Haudenosaunee thinking (see generally
K. P. Williams, Kayenerenkó:wa: The Great Law of Peace (University of Manitoba Press,
2018)).

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  
a process of decolonization. Supreme Court jurisprudence has under-
lined that the goal of reconciliation in s. 35 of the Canadian
Constitution requires the inclusion of the ‘Aboriginal perspective’ on
rights under s. 35,70 and the Indian Residential School Truth and
Reconciliation Commission report of 2015 calls on law schools to
include courses on Indigenous legal traditions so that future judges
and lawyers may be equipped to go beyond paying lip service to ‘the
Aboriginal perspective’.71 Such cross-cultural projects inevitably raise
issues of translation – who can do it and how, the problems of
rendering living and highly contextualized traditions legible to out-
siders and their institutions, and the risk of appropriating what little
remains after centuries of destructive colonial policies. These dynamics
are reconﬁgured by the framing of Mills and others of the issue as one
of relatedness rather than recognition. Mills writes that Anishinaabe
constitutionalism is not about ethnic identity but about a way of being
in political community on Earth: ‘Though your stories may be different
and you and I may not read the earth the same way, this is a consti-
tutional framework available to all.’72 This is why my approach here
and elsewhere is to explore ways in which the messages of Anishinaabe
and Haudenosaunee jurisprudence (the two rooted traditions growing
out of the place where I live) resonate with the knowledge from my own
inherited traditions.73
This understanding of treaties also has consequences for expanding
our consideration of the heuristic of entangled legalities itself. Conceiving
of entangled legalities in terms of normative pluralism – borrowing or
transplanting rules and principles, developing hybrids, instituting struc-
tures that deal with conﬂicting norms – presupposes the form that law
takes and constitutes its own kind of capture. If an actor – like a judge or
other decision-maker – can select from a range of norms, we would have
to think about law as dismembered pieces, as abstract propositions to be

70
R v. Van Der Peet [1996] 2 SCR 507, [49].
71
Call to Action 28 in Truth and Reconciliation Commission of Canada, Honouring the
Truth, Reconciling for the Future: Summary of the Final Report of the Truth and
Reconciliation Commission of Canada (Truth and Reconciliation Commission of
Canada, 2015), www.trc.ca/res-trc-ﬁnding.html. See K. Drake, ‘Finding a Path to
Reconciliation: Mandatory Indigenous Law, Anishinaabe Pedagogy, and Academic
Freedom’ (2017) 95 Canadian Bar Review 9–46.
72
Mills, ‘What Is a Treaty?’, p. 245.
73
See K. Anker, ‘Law as Forest: Eco-Logics, Stories and Spirits in Indigenous Jurisprudence’
(2017) 21 Law Text Culture 191–213.

74
See M. Constable’s retelling of the Norman conquest as the origin of positive law in the
move from implicit knowledge about how to act to the articulation of rules in propos-
itional language: The Law of the Other: The Mixed Jury and Changing Perceptions of
Citizenship, Law, and Knowledge (University of Chicago Press, 1994), chapter 4.
75
G. Christie, ‘Indigenous Legal Orders, Canadian Law and UNDRIP’, in UNDRIP
Implementation: Braiding International, Domestic and Indigenous Laws (Centre for
International Governance Innovation, 2017), p. 49.
76
J. S. Henderson, ‘Comprehending First Nations Jurisprudence’, unpublished paper,
Indigenous Law and Legal Systems Conference (University of Toronto Faculty of Law,
27 January 2007).
77
Mills, ‘Miinigowiziwin’, p. 135.
78
See the story of Wiisakejak and the ducks discussed by Mills, ‘Miinigowiziwin’, p. 137.
79
Ibid., t pp. 137–45.
80
J. Stacey, The Constitution of the Environmental Emergency (Hart, 2018); C. Voigt, Rule of
Law for Nature: New Dimensions and Ideas in Environmental Law (Cambridge
University Press, 2013); J. Ebbesson, ‘The Rule of Law in Governance of Complex
Socio-ecological Changes’ (2010) 20 Global Environmental Change 414–22.
81
J. Ellis, ‘Crisis, Resilience, and the Time of Law’ (2019) 32 Canadian Journal of Law and
Jurisprudence 305–20.

3.5 Conclusion
But wait. How are we separate? This can also be enumerated. Being an
individual and distinct organism is a dominant and recurring part of my
existence. When I touch a boiling kettle, it is only my hand that recoils.
My body mostly feels like a bounded unit with my ‘self’ located some-
where in my head. Although individualism is often decried as a mytho-
logical foundation for liberalism, it has a phenomenological and
pragmatic reality – alongside entanglement, it is also part of the way
the world thinks. Human symbolic thought has the property of permit-
ting the experience of an interior or virtual world that can seem separate
from the domain of the concrete, material world. This separation
between mind and matter, and between culture and nature, has in part
been actualized – and ampliﬁed – through agricultural practices, the
construction of cities and states, and empirical science. As anthropologist
Eduardo Kohn comments, the phenomenon we are calling the
Anthropocene seems to be the apotheosis of the mind–matter dualism
inherent in symbolic thinking.83
There is now a multitude of disciplines seeking to critique or
ﬁnd solutions to the ways in which the current legal and political
paradigm ignores our ontology of entanglement, among them
ecological jurisprudence, ecology of mind,84 new materialisms85 and

82
UN GA, ‘Sustainable Development: Harmony with Nature – Report of the Secretary
General’ (17 August 2012) UN Doc A/67/.
83
E. Kohn, ‘Anthropology as Cosmic Diplomacy: Toward an Ecological Ethic for the
Anthropocene’, unpublished paper, Yale Ethnography and Social Theory Colloquium
Series (Yale University, 5 February 2018), https://fore.yale.edu/ﬁles/Kohn.pdf, p. 6.
84
G. Bateson, Mind and Nature: A Necessary Unity (E. P. Dutton, 1979).
85
J. Bennett, Vibrant Matter: A Political Ecology of Things (Duke University Press, 2010); A.
Grear, ‘Toward New Legal Futures? In Search of Renewing Foundations’, in A. Grear and
E. Grant (eds), Thought, Law, Rights and Action in an Age of Environmental Crisis
(Edward Elgar, 2015).

86
B. Latour, ‘Whose Cosmos? Which Cosmopolitics? A Comment on Ulrich Beck’s Peace
Proposal’ (2004) 10 Common Knowledge 450–62; I. Stengers, Cosmopolitics I (University
of Minnesota Press, 2011).
87
M. Berman, The Reenchantment of the World (Cornell University Press, 1981).
88
Z. Todd, ‘An Indigenous Feminist’s Take on the Ontological Turn: “Ontology” Is Just
Another Word for Colonialism’ (2016) 24 Journal of Historical Sociology 4–22; K. P.
White, ‘Our Ancestors’ Dystopia Now: Indigenous Conservation and the Anthropocene’,
in U. Heise, J. Christensen and M. Niemann (eds), The Routledge Companion to the
Environmental Humanities (Routledge, 2017).
89
H. Davis and Z. Todd, ‘On the Importance of a Date, or Decolonizing the Anthropocene’
(2017) 16 ACME: An International Journal for Critical Geographies 761–80, at 761.
90
Todd, ‘An Indigenous Feminist’s Take on the Ontological Turn’.

91
D. Haraway, Staying with the Trouble: Making Kin in the Cthulucene (Duke University
Press, 2016).

And an Algorithm to Entangle Them All?

Social Credit, Data-Driven Governance and Legal
Entanglement in Post-law Legal Orders

  

In the sixth month, Gabriel the angel was sent from God to a town in Galilee
called Nazareth, to a virgin engaged to a man called Joseph, from the family
of David. [. . .] ‘Don’t be afraid, Mary’, said the angel to her. ‘You’re in favour
with God. Listen: you will conceive in your womb and will have a son; and
you shall call his name Jesus [. . .] The Lord God will give him the throne of
David his father, and he shall reign over the house of Jacob for ever. His
kingdom will never come to an end.’1

4.1 Introduction
The annunciation by Jessup2 of the birth of what would become trans-
national law conceived within the womb of Western (and then global)
jurisprudence imagined a transformed juridical order in which the
notion of law was broadened beyond the state (at least with respect
to a deﬁnable set of activities). These legalities, in turn, were to be
entangled3 to solve what before had been issues the resolution of which
could be undertaken solely by reference to the law of a state.4 But this

1
Luke 26:31.
2
P. C. Jessup, Transnational Law (Yale University Press, 1956).
3
E.g., N. Krisch, ‘The Open Architecture of European Human Rights Law’ (2008) 71
Modern Law Review 183–216 (‘we ﬁnd different norms and actors competing for ultimate
authority; and since they lack a common legal frame of reference, they compete, to a large
extent, through politics rather than legal argument’).
4
L. C. Backer, ‘The Cri de Jessup Sixty Years Later: Transnational Law’s Intangible Objects
and Abstracted Frameworks Beyond Nation, Enterprise, and Law’, in P. Zumbansen (ed.),
The Many Lives of Transnational Law: Critical Engagements with Jessup’s Bold Proposal
(Cambridge University Press, 2019), pp. 386–418.



5
United Nations, Guiding Principles for Business and Human Rights: Implementing the
United Nations ‘Protect, Respect and Remedy’ Framework (United Nations, 2011), p. 7
(‘States individually are the primary duty-bearers under international human rights law,
and collectively they are the trustees of the international human rights regime’).
6
C. A. Whytock, ‘Conﬂict of Laws, Global Governance, and Transnational Legal Order’ (2016) 1
UC Irvine Journal of International, Transnational, and Comparative Law 117–40.
7
P. Zumbansen, ‘Transnational Legal Pluralism’ (2010) 1 Transnational Legal Theory
141–189; L. C. Backer, ‘Governance without Government: An Overview’, in G. Handl,
J. Zekoll and P. Zumbansen (eds), Beyond Territoriality: Transnational Legal Authority in
an Age of Globalization (Martinus Nijhoff, 2012), pp. 87–123.
8
E. Patrignani, ‘Legal Pluralism as a Theoretical Programme’ (2016) 6 Oñati Socio-legal
Series 707–25, at 711.
9
A. D. Smith, Nationalism and Modernism: A Critical Survey of Recent Theories of Nations
and Nationalism (Routledge, 1998), pp. 8–23, 221–8.
10
G. Teubner, ‘The Two Faces of Janus: Rethinking Legal Pluralism’ (1991) 13 Cardozo Law
Review 1443–62.
11
T. Duve, ‘European Legal History: Concepts, Methods, Challenges’, in T. Duve (ed.),
Entanglements in Legal History: Conceptual Approaches (Max Planck Institute for
European Legal History, 2014), pp. 29–66, at p. 58.
12
L. C. Backer, ‘God(s) Over Constitutions: International and Religious Transnational
Constitutionalism in the 21st Century’ (2008) 27 Mississippi College Law Review 11–65.
13
D. Dyzenhaus, ‘Hobbes and the Legitimacy of Law’ (2001) 20 Law and Philosophy
461–98.

14
Patrignani, ‘Legal Pluralism as a Theoretical Programme’, 713; M. Croce, ‘All Law Is
Plural: Legal Pluralism and the Distinctiveness of Law’ (2012) 65 Journal of Legal
Pluralism and Unofﬁcial Law 1–30.
15
J. Crowe, ‘The Limits of Legal Pluralism’ (2015) 24 Grifﬁth Law Review 314–31.
16
N. Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (Oxford
University Press, 2010); P. S. Berman, Global Legal Pluralism: A Jurisprudence of Law
beyond Borders (Cambridge University Press, 2012).
17
M. Davies, ‘Legal Pluralism’, in P. Cane and H. M. Kritzer (eds), The Oxford Handbook of
Empirical Legal Research (Oxford University Press, 2010).
18
N. Luhmann, The Differentiation of Society (Columbia University Press, 1982).
19
A. Bianchi, International Law Theories: An Inquiry into Different Ways of Thinking
(Oxford University Press, 2016), pp. 227–31.
20
Here understood both as a side path (e.g. and ironically here, Sallust (c.40 BC) C. 57, 1:
‘uti per tramites occulte perfugeret in Galliam Transalpinam’; J. 48: ‘per tramites occultos
Metelli antevenit’) but also as a way of life or course or manner of engagement (e.g.
Lucretius. (c.55 B.C.) 6, 27: ‘ab aequitatis recto tramite deviare’).
21
G.-P. Calliess and P. Zumbansen, Rough Consensus and Running Code: A Theory of
Transnational Private Law (Hart Publishing, 2010).
22
G. Teubner, ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in
New Differences’ (1998) 61 Modern Law Review 11–32.

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   
The budding focus on the interspatial carries with it both promise and
challenge. The promise: an interspatial gap filling in all of its complexities
and theoretical possibilities. This has been the central exploration of
entanglements among law, norms, rules and habits with coercive effect.23
The challenge is centred on the risk of boundaries without end: of the
permanent and quite dynamic cacophony of borders that is produced by
the obsession with the interfaces between bodies of norms that them-
selves create borders within the space between norm systems for which
other interfaces are necessary.24 The problem of the never-ending spaces
between spaces, where every law system defines its own inter-spaces,
becomes self-entangling, and might itself be undergoing an extra-spatial
transformation. That extra-spatial form of governance – in which space
loses its centrality and law changes its forms and function – is the object
of the exploration here.
More specifically, the chapter considers the emergence of data-driven
analytics and the algorithmic techniques of imposing consequences
(some of it machine driven, on the basis of artificial intelligence (AI))25
as defining not just new modalities of governance but also reshaping the
conception of spatiality within which entangled governance happens,
national and transnational, public and private. So reshaped, these data-
driven governance legalities entangle with traditional modes of govern-
ance through law in what may be new and interesting ways. These
‘social credit’ ratings, risk management, assessment, accountability or
compliance systems have been established as a means to aid traditional
governance;26 yet they have the potential to displace the structures of
governance they are meant to serve. But more than that, they may well
change the landscape and language in which one encounters legal
entanglements and its operational effects. The thesis of this chapter is
simple: legal entanglement has moved beyond the two-dimensional space

23
Berman, Global Legal Pluralism; G. Teubner, ‘“Global Bukowina”: Legal Pluralism in the
World Society’, in G. Teubner (ed.), Global Law without a State (Ashgate, 1997).
24
Cf. H. Nagendra and E. Ostrom, ‘Polycentric Governance of Multifunctional Forested
Landscapes’ (2012) 6 International Journal of the Commons 104–33.
25
People’s Republic of China, ‘Chinese State Council released the New Generation AI
Development Plan (新一代人工智能发展规划的通知)’ (July 2017), www.gov.cn/
zhengce/content/2017-07/20/content_5211996.htm; see European Commission website
on Digital Single Market, Policy, Artificial Intelligence (2019), https://ec.europa.eu/
digital-single-market/en/artificial-intelligence.
26
See, e.g., essays in K. E. Davis, A. Fisher, B. Kingsbury and S. E. Merry (eds), Governance
by Indicators: Global Power through Quantification and Rankings (Oxford University
Press, 2012).

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    ? 
for engagement envisioned by Jessup and his successor. Entanglement
was once conﬁned to states, other governance institutions and between
them all. That engagement was built around and with the traditional
language of law and jurisprudence. Increasingly, the emerging quantita-
tive legalities built around AI and big data management systems (e.g.
social credit initiatives) that are neither dependent on the forms and
techniques of law nor on the bureaucratic apparatus of state entangle
more decisively with conventional and plural law and norm systems.
These add an additional layer of actor (the ‘market’, the analyst, the
modeller, the systems engineer, the coder) and seek to displace the
language of law and jurisprudence with the language of data-based
analytics applied towards a comprehensive management of behaviour.
The resulting entanglement may reshape the meaning and making of
entanglement itself. At its limit, this reshaping will have a particular
effect on the way in which conventional plural legalities, until now the
singular feature of globalized law frameworks, may be assembled through
dynamic and sometimes unstable entangled linkages and rationalized by
a regulatory algorithm that may come to manage them all.27
This contribution, then, considers governance entanglement between
the entangled legalities of law-norm systems and the legalities emerging
from data-driven systems of behaviour management. The realities of
emerging legalities that exceed the capacity of law to express their form
require a three-dimensional analysis of entanglement and a broader view
of legality, one that reconsiders data-driven, machine-administered regu-
latory systems more than an enhanced form of property.28 One deals
here not just with the ﬂattened inter-legalities of the traditional structures
of ordering power by rules. Instead, one must now understand the way
those clusters of entanglement themselves are entangled with emerging
modalities of law/regulation/norms which have come to form the centre
of what is understood as plural legalities.

27
J. R. R. Tolkien, The Fellowship of the Ring (Random House, 1954), chapter 2. That extra-
spatiality is nicely captured through what is now a sadly hackneyed and often quoted
passage from a well-known book which provides a rich metaphor for multidimensional
entanglement, rings of power for all communities to each bind themselves and ‘One Ring
to rule them all, . . . to ﬁnd them, . . . to . . . bind them.’
28
E.g., OECD, ‘OECD Council Recommendation on Artiﬁcial Intelligence’ (adopted
21 May 2019) OECD/LEGAL/0449, https://legalinstruments.oecd.org/en/instruments/
OECD-LEGAL-0449.

4.2 The Construction of Data-Driven Operating Systems

The governance consequences of data-driven compliance and risk man-
agement systems, and of the informal systems of ratings and assessment,
has only recently exploded into the popular imagination of academics

29
T. C. Halliday and G. Shaffer (eds), Transnational Legal Orders (Cambridge University
Press, 2015).
30
At greater length in L. C. Backer, ‘Next Generation Law: Data-Driven Governance and
Accountability Based Regulatory Systems in the West and Social Credit Regimes in
China’ (2018) 28 Southern California Interdisciplinary Law Journal 123–72.
31
E.g., J. House, ‘English as Lingua Franca: A Threat to Multilingualism?’ (2003) 7 Journal
of Sociolinguistics 556–78.

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    ? 
and others.32 What started as an effort to rationalize the emerging
techniques of indicators,33 as a means of governance, quickly became a
study of these techniques, increasingly systematized, as governance.34
The recognition of algorithmic governance appeared like a direct and
hidden threat to the carefully constructed public structures of law and
governance systems.35 Just as it seemed that theory could come to grips
with the possibility of law (governance) systems beyond the state, the
entire framework of law systems themselves seemed to be sidelined by
data-based algorithmic systems to which law and norms appeared to be a
stranger. And these challenges have come to the West in forms that
appear to conﬂate the operations of Marxist-Leninist government with
Western democratic markets-driven polycentric (plural) governance.36
Yet these judgements ought not to deter from considering the (inevitable
it seems) rise of these systems in both China and the West, and the
additional layer of entanglement they add to the emerging formal and
public systems of governance that constitute global legal polycentric
(pluralist) governance.37 To that end, a brief exploration of the shape
of social credit initiatives fuelled by AI and machine learning-enabled
algorithms is worth considering.
The rise of social credit initiatives (ratings and data-driven governance
in the West) and big data management systems (as a means to imple-
ment these governance frameworks) appears to further entangle legalities
in perhaps unexpected ways. It takes as its starting point the signiﬁcant
drive towards accountability and measurement in governance incarnated
through rankings and ratings. Administration of rankings and ratings
then devolves to the institutions that administer and along with that
devolution goes the power to determine what behaviours will be valued,
and in what amount, to rank and rate. In effect, the indicator acquires

32
F. Pasquale, The Black Box Society: The Secret Algorithms That Control Money and
Information (Harvard University Press, 2016).
33
S. E. Merry, The Seductions of Quantiﬁcation: Measuring Human Rights, Gender Violence,
and Sex Trafﬁcking (University of Chicago Press, 2016) (measurement systems constitute
a form of power).
34
Backer, ‘Next Generation Law’.
35
Pasquale, The Black Box Society.
36
M. Harris, ‘The Moral Hazard of Big Data’, New Republic (6 February 2015), https://
newrepublic.com/article/120987/pasquales-black-box-challenges-digital-sphere-run-
algorithms.
37
E. Ostrom, ‘Beyond Markets and States: Polycentric Governance of Complex Economic
Systems’ (2010) 100 American Economic Review 641–72.

38
Consider the example of corruption, one well examined in the essays in S. E. Merry, K. E.
Davis and B. Kingsbury (eds), The Quiet Power of Indicators: Measuring Governance,
Corruption, and Rule of Law (Cambridge University Press, 2015). In this case trans-
national measures inform international instruments that then inform national transpos-
ition of corruption measures. These, in turn, are substantially affected by systems of
analytics of performance built around proprietary assessments of corruption compliance
that are framed around these legal principles and rules, but which are interpreted and
quantified in ways that reflect the values and objectives of the analysts and coders
preparing the analytical framework (and providing quantifiable values to identified
actions). See, e.g., D. Kaufmann, A. Kraay and M. Mastruzzi, ‘Measuring Corruption:
Myths and Realities’, World Bank (April 2007); Transparency International, ‘Corruption
Perceptions Index’ (2019), www.transparency.org/research/cpi/overview; O. E.
Hawthorne, ‘Do International Corruption Metrics Matter? Assessing the Impact of
Transparency International’s Corruption Perceptions Index’, PhD thesis, Old
Dominion University (2012), https://digitalcommons.odu.edu/gpis_etds/50.
39
M. Zürn, A. Nollkaemper and R, Peerenboom, ‘Introduction: Rule of Law Dynamics in an
Era of International and Transnational Governance’, in M. Zürn, A. Nollkaemper and R,
Peerenboom (eds), Rule of Law Dynamics in an Era of International and Transnational
Governance (Cambridge University Press, 2012) pp. 1–18.
40
L. C. Backer, ‘Global Panopticism: Surveillance Lawmaking by Corporations, States, and
Other Entities’ (2008) 15 Indiana Journal of Global Legal Studies 101–48. These data-
driven systems can be aligned with and enhance control over a territory/population in the
manner of Foucault’s bio-politics. See T. Lemke, ‘“The Birth of Bio-Politics”: Michel
Foucault’s Lecture at the College de France on Neo-Liberal Governmentality’ (2010) 30
Economy and Society 190–207; M. Foucault, Society Must Be Defended: Lectures at the
Collège de France, 1975–1976, trans. D. Macey (St. Martin’s Press, 1997). The notion of

population, however, has long breached the political borders of territorial states (see
Backer, ‘The Cri de Jessup Sixty Years Later’). Consider in this case the entanglements of
public, private and data-driven systems in the operation of social media platforms like
Facebook. Facebook’s rules with respect to posts on its platform represent the uneasy and
unstable product of collisions between public law (e.g. the EU General Data Protection
Regulation (O. Solon, ‘How Europe’s “Breakthrough” Privacy Law Takes on Facebook
and Google’, The Guardian, 19 April 2018)), private regulation (Facebook’s normative
rules for acceptable content and procedural rules for content removal (J. C. Wong and O.
Solon, ‘Facebook Releases Content Moderation Guidelines—Rules Long Kept Secret’, The
Guardian, 24 April 2018)), Facebook’s algorithms (how Facebook determines post views
on newsfeeds, for example), and in 2020 a private quasi-judicial Oversight Board consti-
tuted by Facebook as its own internal judicial-administrative body, ‘a 20-member inde-
pendent panel that will rule on which posts can be blocked as false or as hate speech or
harassment’ (New York Post Editorial Board, ‘Facebook’s New “Supreme Court” Looks
Like a License to Censor’, New York Post, 7 May 2020).
41
R. Kimball et al., The Data Warehouse Lifecycle Toolkit, 2nd ed. (Wiley, 2008); H.
Edelstein and R. C. Barquin, Planning and Designing the Data Warehouse (Simon &
Schuster, 1996).
42
Cf., essays in J. Wang (ed.), Data Warehousing and Mining: Concepts, Methodologies,
Tools, and Applications (IGI Global, 2008).
43
This is particularly true in the West in the context of cyber criminality. Cf. I.-Y. Song
et al., ‘Designing a Data Warehouse for Cyber Crimes’ (2006) 1 Journal of Digital
Forensics, Security and Law 5–22; L. C. Backer, ‘Chinese Strategies to Combat
Corporate Corruption: From a “Two Thrust Approach” to a “Two Swords One Thrust
Strategy” of Compliance, Prosecutorial Discretion, and Sovereign Investor Oversight in
China’ (2019) 152 International Lawyer 1–45.

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   
boundaries within which choices are cabined. These are the structures of
conventional governance, but now deployed in a quite different space.
But these are not normative orders in the traditional sense. That
fundamental characteristic suggests the opportunities and challenges that
these emerging systems represent. Social credit initiatives – data and
algorithmic orders – change the relation among governance actors,
decentring the judge, the regulator and the social actors, in favour of
those who can manage, organize and apply metrics to some end or other
(that is to the same ends of law). Yet they do not mediate relations among
norms so much as absorb them all in furtherance of extra-spatial object-
ives – to focus on behaviours in a self-reflexive loop founded on
behaviour-generated data, the vectors of which may be modified through
systems of real-time rewards and punishments (of individuals and insti-
tutions, including governmental and economic institutions). These
orders, then, are not so much enmeshed as they are ubiquitous – serving
both as techniques of management, and as the primary structures of
regulation themselves. Absorption does not mean elimination; it posits
an entanglement of a different order – between conventional govern-
mental orders, the entanglements of which continue to produce norms,
but their interpretation and application, that is the way these norms are
given meaning, entangle conventional legalities with the analytic legal-
ities of the algorithm and the entanglement of choices made between
techno-experts, coders and public or private officials. These characteris-
tics became much more visible in the context of the Covid-19 pandemic
where the entanglement of simulation and conventional political legal-
ities became the central regulatory element of institutional responses to
the virus.44
It follows then that the anticipated entanglements become more con-
fused where one set of systems (law/regulation) continues to posit that
metrics-based governance is merely technique, rather than a regulatory
system in its own right. The interspatial, and its data-driven forms,
produces a quite distinctive template for the conceptual construction of
law/norms between law/norm systems; and it emerges with its own
language and sensibilities in ways that are not yet completely clear.
Every political culture approaches the emerging realities of ‘artificial

44
L. C. Backer, ‘Simulating Politics in the Shadow of COVID-19: “Like the School Nurse
Trying to Tell the Principal How to Run the School”’, Law at the End of the Day blog
(4 May 2020), https://lcbackerblog.blogspot.com/2020/05/simulating-politics-in-shadow-
of-covid.html.

45
P. N. Howard, S. Woolley and R. Calo, ‘Algorithms, Bots, and Political Communication
in the US 2016 Election: The Challenge of Automated Political Communication for
Election Law and Administration’ (2018) 15 Journal of Information Technology &
Politics 81–93.
46
Regulation 2016/679 of 27 April 2016 on the protection of natural persons with regard to
the processing of personal data and on the free movement of such data, and repealing
Directive 95/46/EC (General Data Protection Regulation), OJ 2016 No L119, 4 May 2016
(‘GDPR’), preamble, section 4.
47
N. Statt, ‘The Justice Department and FBI Are Reportedly Investigating Cambridge
Analytica over Facebook Scandal’, The Verge (15 May 2018), www.theverge.com/2018/
5/15/17358802/facebook-cambridge-analytica-justice-department-fbi-investigation.
48
A. Narayanan and V. Shmatkov, ‘Robust De-anonymization of Large Sparse Datasets’,
Proceedings of the 2008 IEEE Symposium on Security and Privacy (2008), www.cs.utexas
.edu/~shmat/shmat_oak08netﬂix.pdf, pp. 111–25.
49
General Data Protection Regulation.

Thus combined, there is a tension between the centrality of the individual

as the incarnation of data, and the utility of data in the production of
economic goods with great disciplinary effects. This debate has been
reﬁned in the context of the Covid-19 pandemic, which has produced a
substantial entanglement between data-driven indicator systems,
national and international law and regulation in ways that will take some
time to untangle.51
On the other hand, where cultures are obsessed with communal
solidarity and the protection of stability around socio-political core
values as the basis for legitimate social organization and operation, then
the result is an engagement that is centred on issues of surveillance, of
detection, and of management of behaviour around key societal prin-
ciples. There is a particular aversion to antisocial behaviour as a politic-
ally destabilizing force.52 Feng Xiang, a law professor at Tsinghua
University, recently spoke about the end of markets: ‘[i]f AI rationally
allocates resources through big data analysis, and if robust feedback loops
can supplant the imperfections of “the invisible hand” while fairly
sharing the vast wealth it creates, a planned economy that actually works
could at last be achievable’.53 He might not be wrong about AI and
markets; even the Cubans have sought to turn their economic planning
into the rudiments of complex algorithms.54 Yet this culture shares with
the other a mania for observation – and for punishment and reward
based on that power to observe,55 one which is incompatible with the

50
AFP, ‘Thousands of People in Sweden get Microchip Implants for a New Way of Life’,
South China Morning Post, 13 May 2015.
51
UN CESCR, ‘Statement on the Coronavirus Disease (COVID-19) Pandemic and
Economic, Social and Cultural Rights’ (adopted 17 April 2020) UN Doc. E/C.12/2020/1.
52
D. Zhang, H. Peng, Y. Haibin and Y. Lu, ‘Crowd Abnormal Behavior Detection based on
Machine Learning’ (2013) 12 Information Technology Journal 1199–205.
53
F. Xiang, ‘AI Will spell the End of Capitalism’, Washington Post, 25 April 2018.
54
L. C. Backer, ‘The Algorithms of Ideology in Economic Planning: A Critical Look at
Cuba’s National Economic and Social Development Plan 2030’ (2017) 27 Cuba in
Transition 115–36.
55
S. Leng, ‘Big Data to Give China Edge over the West’, South China Morning Post,
21 January 2018.

4.3 Chinese ‘Social Credit’ Systems: The State at the Centre

Social credit is a deeply entangled system; it is a system that will eventu-
ally apply to all legal actors, persons, institutions, ofﬁcials and foreigners
in or seeking to engage with China and Chinese actors.57 It is more than
that – it has been created as a nexus point between the constituting role
of law (as well as the normative guides that are its rules) and the
evaluative function of data-driven analytics.58 It sits at the borderlands
between a rating-evaluation system and systems of legal regulation. It is
also entangled with the core political premises that drive Marxist-
Leninist political economy in China under the leadership of the

56
L. Fan, V. Das, N. Kostyuk and M. M. Hussain, ‘Constructing a Data-Driven Society:
China’s Social Credit System as a State Surveillance Infrastructure’ (2018) 10 Policy &
Internet 415–53.
57
Fan et al., ‘Constructing a Data-Driven Society’.
58
The Covid-19 pandemic has provided a powerful if simple illustration of how this works
in China. In order to better manage responses to the Covid-19 pandemic, Chinese
residents were each assigned a colour code representing a rating of contagion risk. That
risk rating is administered through Alibaba, a private enterprise. It has developed the
Alipay Health Code which adds a health colour code to each person’s Alipay account
(held by the vast majority of individuals). To access the rating each account holder
downloads an app. The system of data-driven colour coding (the analytics of which
remain opaque) are then used by other actors (state and private) to determine whether
the individual will be required to quarantine, and whether the individual will be granted
access to places of business or public spaces. The ranking data are shared with state
authorities and aligned with the state’s regulations and policies respecting Covid-19
mitigation measures. P. Mozur, R. Zhong and A. Krolik, ‘In Coronavirus Fight, China
Gives Citizens a Color Code, with Red Flags’, New York Times, 1 March 2020; X. Wǎng,
‘Zhīfùbǎo jiànkāng mǎ 7 tiān luòdì chāo 100 chéng shùzìhuà fángyì pǎo chū “zhōngguó
sùdù’ (‘Alipay Health Code Implemented in 100 Cities in 7 Days: Digital Epidemic
Prevention at China Speed’), Xinhuanet, 19 February 2020, www.xinhuanet.com/tech/
2020–02/19/c_1125596647.htm.

Yet one notes the entanglement – the system is constituted through law,
but is established as autonomous from the law system around which it
operates. The object is to establish a structure for managed entanglement
within the state. Each, in turn, requires the production of a self-reflexive
legality whose operation is entangled with those of the normative polit-
ical, societal and economic order. Its mechanism, machine learning and
AI, the entanglement of a rule system for AI and AI as law itself was also
elaborated by the State Council in 2017.61 ‘Social credit systems are
centered on ratings. Ratings are derived, in turn, from data generated
by what is being rated—individuals, businesses, public and private insti-
tutions, and eventually even [CPC] members. To that end, it is necessary
to manage data production as it is to manage the analytics and conse-
quences drawn from the data.’62
Social credit initiatives have as their object the development of a
national reputation system, assigning a rating that reflects a qualitative
judgement of relevant data gathered about the subject. Reputation, itself,
embraces notions of sincerity, and of integrity and compliance, in
accordance with the standards and objectives overseen by the state.
Four areas are identified: ‘sincerity in government affairs’ (政务诚信),
‘commercial sincerity’ (商务诚信), ‘societal sincerity’ (社会诚信) and
‘judicial credibility’ (司法公信). AI and machine learning focus on the

59
L. C. Backer, ‘China’s Social Credit System: Data-Driven Governance for a “New Era”’
(2019) 118 Current History: A Journal of Contemporary World Affairs 209–14.
60
People’s Republic of China, ‘State Council Notice Concerning Issuance of the Planning
Outline for the Construction of a Social Credit System (2014–2020)’ (2014), https://
chinacopyrightandmedia.wordpress.com/2014/06/14/planning-outline-for-the-construc
tion-of-a-social-credit-system-2014–2020/, p. 1.
61
People’s Republic of China, ‘Chinese State Council Released the New Generation AI
Development Plan’.
62
Backer, ‘China’s Social Credit System’, 211.

63
E. Kania, ‘China’s AI Agenda Advances: As China Throws State Support behind AI
Development, Major Chinese Technology Companies Will Remain Integral Players’, The
Diplomat (14 February 2018), https://thediplomat.com/2018/02/chinas-ai-agenda-
advances/.
64
Kania, ‘China’s AI Agenda Advances’.
65
People’s Republic of China, ‘State Council 关于加快推进社会信用体系建设构建以信
用为基础的新型监管机制的指导意见’ (‘Guiding Opinion on Accelerating the
Advancement of the Establishment of the Social Credit System with New Forms of
Credit-Based Regulatory Mechanisms’), translated by Jeremy Daum, China Law
Translate (17 July 2019), www.chinalawtranslate.com. This document issued by the
General Ofﬁce of the State Council provided guiding opinions on the acceleration of
the construction of the system. The document emphasized the centrality and importance
of the social credit system as a separable form of legality, and served as a reminder of the
determination of the current political leaders to move from a primary dependence on law
to data-driven management of behaviour as a central element of ordering society. Backer,
‘China’s Social Credit System’, 209.
66
Backer, ‘China’s Social Credit System’, 210.
67
X. Dai, ‘Toward a Reputation State: The Social Credit System Project of China’ (10 June
2018), https://ssrn.com/abstract=3193577.
68
S. Jiang, ‘Written and Unwritten Constitutions: A New Approach to the Study of
Constitutional Government in China’ (2010) 36 Modern China 12–46.

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   
the determination that such data-driven governance would enhance the
long-term Chinese political-economic objectives embedded in their con-
cept of socialist modernization, a core policy of the Chinese state since
the era of Deng Xiaoping. Social credit was to evidence the transform-
ation of techniques that marked a new phase of the socialist market
economy system and of the social governance system, one which received
its more definitive political form after the announcement of the ‘New Era’
political line of the CPC in the wake of the 19th CPC Congress of
October 2017.69
But its genesis also represented a practical response to a long-term
problem that both state and private elements of society found increas-
ingly burdensome.70 These included a number of issues that threatened
not merely the orderly progress of socialist modernization, but also
inhibited the progressive advancement of social and cultural objectives.
These included grave production safety accidents, food and drug security
incidents, commercial swindles, the manufacture and sale of counterfeit
products, tax evasion, fraudulent financial claims, academic impropriety
and gaps between the extent of integrity in government affairs and
judicial credibility and the expectations of the popular masses. If neither
law nor regulation appeared to produce conformity, and if the transac-
tion costs of deploying a vast enforcement network was counterproduc-
tive to the long-term goal of a self-regulating society that was efficient
and productive in socially approved ways, then a different approach to
the management of societal factors was necessary.
This ambitious set of objectives was to be guided by a set of core
premises and constraints. Social credit initiatives must conform to and
advance the objectives of the CPC Basic Line, including the development
of economic forces for policy ends.71 The Chinese social credit system
also has a moral dimension, which deeply informs its regulatory and
enforcement dimensions. Its object is to steer the culture and practices of
people in virtually every aspect of their lives. To those ends, the Twelve

69
J. Xi, ‘Secure a Decisive Victory in Building a Moderately Prosperous Society in All
Respects and Strive for the Great Success of Socialism with Chinese Characteristics for a
New Era: Report Delivered to the 19th National Congress of the Communist Party of
China’, Xinhuanet, 18 October 2017, www.xinhuanet.com/english/download/Xi_
Jinping’s_report_at_19th_CPC_National_Congress.pdf.
70
People’s Republic of China, ‘State Council Notice Concerning Issuance of the
Planning Outline’.
71
Constitution of the Communist Party of the People’s Republic of China (General
Program).

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    ? 
Core Socialist Values unveiled in 2012 play an important role.72
Entanglement is meant to be conscious and coordinated rather than
organic and serendipitous73 – highlighting the difference between a
central-planning (public and administrative) versus a markets-based
(private and demand driven) political order.
The social credit initiative was comprehensive. It was envisioned that
when completed, social credit systems would manage key operations in
four sectors: government, commercial activities, social integrity and
judicial credibility.74 With respect to the role of social credit in govern-
ment, the focus was on the use of data-driven analytics tied to algorithms
that produced the basis for accountability to result in rewards or punish-
ments around a variety of governmental actions. These included: admin-
istrative permissions, government procurement, tendering and bidding,
labour and employment, social security, scientific research management,
cadre promotion and appointment, management and supervision, appli-
cation for government financial support and other such areas and
fostering the development of a credit services market. Clearly, data-
driven analytics and its resulting assessment system would produce an
immediate effect on those whose conduct triggers measured responses.
For those who met credit minima, access to benefits would be enhanced.
Those assessed at a low enough level would be placed on an effective
blacklist that would make functioning in a modern society substantially
more difficult and costly, absent readjustment. Moreover, social credit
was also to be used as a tool for intra-governmental accountability, and to
monitor civil servants.
Social credit mechanisms were also directed towards a very broad
range of commercial activities – whether by state-owned enterprises or
the private sector. Private behaviour by individuals was also to be man-
aged through social credit systems under the umbrella of enhancing
‘Social Integrity’. An area of particular note for the application of data-
driven analytics was that of the judicial system. The specific focus was on
judicial creditability and on the integrity of the judicial function and the
performance (and accountability) of judges for their work. The State

72
L. C. Backer, ‘Blacklists and Social Credit Regimes in China’, interdisciplinary symposium
Super-Scoring? Data-Driven Societal Technologies in China and Western-Style
Democracies as a New Challenge for Education (Cologne, Germany, 11 October 2019),
www.superscoring.de/2019/08/28/blacklists-and-social-credit-regimes-in-china/.
73
Ibid.
74
People’s Republic of China, ‘State Council Notice Concerning Issuance of the Planning
Outline’, II(1)–(4).

75
People’s Republic of China, ‘State Council Notice Concerning Issuance of the
Planning Outline’.
76
See L. C. Backer, ‘What Is the Fundamental Task of Education? Xi Jinping’s Concept of
立德树人 [Cultivating People of Moral Character] and Its Implementation through
Undergraduate University Reform in 教育部关于一流本科课程建设的实施意见
[Implementation Opinions of the Ministry of Education on the Construction of First-
Class Undergraduate Courses]’, Law at the End of the Day (1 November 2019), https://
lcbpsusenate.blogspot.com/2019/11/what-s-fundamental-task-of-education-xi.html. The
Ministry of Education’s draft Measures for the Appointment and Management of
Foreign Teachers [外籍教师聘任和管理办法] (www.moj.gov.cn/news/content/
2020–07/21/zlk_3252777.html) establishes the parameters by which the Chinese social
credit system is extended to foreign teachers including assessments relating to the foreign
teacher’s compliance with law, ethics and quality of teaching be included in a national
foreign teacher comprehensive information service platform. Article 31 includes the list
of activities that will permit dismissal and require listing on a social credit blacklist.

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    ? 
equality, justice, the rule of law, patriotism, dedication, integrity and
friendliness.’77 To that end, state organs are encouraged to oversee special
campaigns in focus sectors, and to ‘persist in correcting unhealthy trends
and evil practices of abusing power for personal gain, lying and cheating,
forgetting integrity when tempted by gains, benefiting oneself at others’
expense, etc., and establish trends of sectoral sincerity and integrity’.78
All of this is to be accomplished by building social credit baseline
systems79 and their mechanisms.80 These systems were then to be oper-
ationalized through blacklists. Blacklists – made up of the names of
people whose social credit scores fall below certain thresholds – have
already begun to have a substantial effect in everyday life. The system is
manifested through ratings, and more importantly from the collection of
blacklists produced as a function of ratings. Blacklists then affect the
availability of goods and services.81
These, then, will serve as the systems through which entanglement will
be coordinated. Baseline systems were identified as (1) sectoral credit
information systems; (2) local information systems; (3) credit investi-
gation systems; and (4) uniform credit investigation platforms in the
financial sector. In addition, government in cooperation with the private
sector were to develop credit information exchange and sharing. These
shall provide the regulatory structures for the operationalization of data-
driven assessment and punishment/reward systems. The forms of
entanglement are also identified as (1) incentive structures and punish-
ments for deviations; and (2) legal, regulatory and standards systems for
credit.
The entanglements of social credit within the Chinese context are as
comprehensive as its ambitions. Social credit is meant to provide a new
language for law, at least as it is meant to serve to control behaviour. At
the same time, the constitution of social credit is driven by law. That is,
law serves as a constituting element of regulatory systems that themselves

77
China Daily, ‘Core Socialist Values’ (2017), www.chinadaily.com.cn/china/19thcpcnatio
nalcongress/2017–10/12/content_33160115.htm.
78
People’s Republic of China, ‘State Council Notice Concerning Issuance of the
Planning Outline’.
79
Ibid., part IV.
80
Ibid., part V.
81
T. F. Chan, ‘China’s Social Credit System Has Blocked People from Taking 11 Million
Flights and 4 Million Train Trips’, Business Insider (21 May 2018), www.businessinsider
.com/china-social-credit-system-blocked-people-taking-ﬂights-train-trips-2018–5?r=
UK&IR=T.

4.4 ‘Social Credit’ in the West: A Governmentalized

Private Sector around Markets for Data
To speak of ‘social credit initiatives’ in the West is to consider an
initiative that does not exist – as such. And yet, a more careful consider-
ation reveals the outlines of the forms of social credit outside of the state.
To speak to the development of social credit and its operationalization
through machine learning and AI-enhanced algorithms, is to understand
how the fracture and diffusion of power has produced something more
than the aggregation of governance spaces and their ‘in-between’ spaces
arranged in some manner or other. It evidences the organization of
power beyond the orthodox space of law, in the sense that these new
data-driven legalities use conventional polycentric governance spaces
themselves as fuel for the generation of behaviour-managing ‘incentives’
or ‘punishments’ that function as regulation while avoiding anything like
its traditional forms.
Social credit in the West is made possible not merely by the availability
of spaces within spaces, but by the effective borderlessness of the market
itself. Those extra-spatial zones have been enhanced through the govern-
mentalization of the private sphere, the privatization of the public sphere
and the migration from law and regulation to systems and systems
management.82 To speak about social credit in the West is to identify a
host of fractured and market-driven projects by a large number of

82
L. C. Backer, ‘Theorizing Regulatory Governance within Its Ecology: The Structure of
Management in an Age of Globalization’ (2018) 24 Contemporary Politics 607–30.

83
L. C. Backer, ‘The Structural Characteristics of Global Law for the 21st Century: Fracture,
Fluidity, Permeability, and Polycentricity’ (2017) 17 Tilburg Law Review 177–99.
84
American Law Institute, Principles of the Law: Compliance, Risk Management, and
Enforcement, Tentative Draft No. 1 (American Law Institute, 2019).
85
Cf. R. M. Steinberg, Governance, Risk Management, and Compliance: It Can’t Happen to
Us; Avoiding Corporate Disaster While Driving Success (John Wiley & Sons, 2011).
86
T. J. Sinclair, The New Masters of Capital: American Bond Rating Agencies and the Politics
of Creditworthiness (Cornell University Press, 2014); L. J. White, ‘Markets: The Credit
Rating Agencies’ (2010) 24 Journal of Economic Perspectives 211–26; E. I. Altman and H.
A. Rijken, ‘How Rating Agencies Achieve Rating Stability’ (2004) 28 Journal of Banking &
Finance 2679–714; see also essays in Davis et al., Governance by Indicators.
87
Backer, ‘Next Generation Law’.
88
A. McAfee and E. Brynjolffon, ‘Big Data: The Management Revolution’, Harvard Business
Review (October 2012), https://hbr.org/2012/10/big-data-the-management-revolution.
89
C. Tang, The Data Industry: The Business and Economics of Information and Big Data
(Wiley, 2016).

90
Department of Commerce v. New York, Supreme Court No. 18–966, 588 US (2019).
91
L. C. Backer, ‘Transparency between Norm, Technique and Property in International Law
and Governance: The Example of Corporate Disclosure Regimes and Environmental
Impacts’ (2013) 22 Minnesota Journal of International Law 1–70.
92
Under the Delaware fiduciary duty law, Stone v. Ritter, 911 A.2d 362 (Del. 2006).
93
J. Nassikas, J. Tan and L. Carson, ‘New DOJ Compliance Program Guidance’, Harvard
Law School Forum on Corporate Governance (10 June 2019), https://corpgov.law
.harvard.edu/2019/06/10/new-doj-compliance-program-guidance/ (‘Compliance pro-
gram effectiveness is a key variable DOJ takes into consideration when (1) making
charging decisions and exercising prosecutorial discretion, (2) making sentencing recom-
mendations, including calculating recommended fines, and (3) deciding whether to
impose reporting requirements or appoint an outside compliance monitor as part of a
corporate resolution’).
94
US Department of Justice, ‘The Fraud Section’s Foreign Corrupt Practices Act
Enforcement Plan and Guidance’ (5 April 2016), www.justice.gov/criminal-fraud/file/
838416/download.
95
See UK Criminal Finances Act 2017, chapter 22.
96
T. Hu et al., ‘The Impact of California Proposition 99, a Major Anti-smoking Law, on
Cigarette Consumption’ (1994) 15 Journal of Public Health Policy 26–36.

97
C. P. Guzalian, M. A. Stein and H. S. Akiskal, ‘Credit Scores, Lending, and Psychological
Disability’ (2015) 95 Boston University Law Review 1807.
98
L. C. Backer, ‘Unpacking Accountability in Business and Human Rights: The
Multinational Enterprise, the State, and the International Community’, in L. Enneking,
I. Giesen, A.-J. Schaap, C. Ryngaert, F. Kristen and L. Roorda (eds), Accountability and
International Business Operations: Providing Justice for Corporate Violations of Human
Rights, Labor and Environmental Standards (Routledge, 2019).
99
Department of Commerce v. New York (2019).
100
C. E. Shoichet, ‘Why Putting a Citizenship Question on the Census Is a Big Deal’, CNN
(28 March 2018), https://edition.cnn.com/2018/03/27/politics/census-citizenship-ques
tion-explainer/index.html (quoting University of Wisconsin Professor Margo
Anderson).
101
Department of Commerce v. New York (2019).

102
M. Fox, ‘Installing Microchips in Employees Is “the Right Thing to Do,” CEO says’,
CNBC (24 July 2017), www.cnbc.com/2017/07/24/installing-microchips-in-employees-
is-the-right-thing-to-do-ceo-says.html.
103
A. Keshner, ‘States Are Cracking Down on Companies Microchipping their Employees’
MarketWatch (4 February 2020), www.marketwatch.com/story/states-are-cracking-
down-on-companies-microchipping-their-employees-how-common-is-it-and-why-
does-it-happen-2020-02-03.
104
N. Just and M. Latzer, ‘Governance by Algorithms: Reality Construction by Algorithmic
Selection on the Internet’ (2017) 39 Media, Culture & Society 238–58; P. Bergevin,
‘Addicted to Ratings: The Case for Reducing Governments’ Reliance on Credit
Ratings’ (May 2010) 130 C. D. How Institute Backgrounder; F. Partnoy, ‘The Siskel
and Ebert of Financial Markets: Two Thumbs Down for the Credit Rating Agencies’
(1999) 77 Washington University Law Quarterly 619–712.
105
W. Kerber, ‘Digital Markets, Data, and Privacy: Competition Law, Consumer Law and
Data Protection’ (2016) 11 Journal of Intellectual Property Law & Practice 856–66; S.
Spiekermann, A. Acquisti, R. Böhme and L. Hui, ‘The Challenges of Data Markets and
Privacy’ (2015) 25 Electronic Markets 161–7.
106
J. Rosen, ‘The Right to Be Forgotten’ (2012) 64 Stanford Law Review 88.
107
E.g., S. U. Noble, Algorithms of Oppression: How Search Engines Reinforce Racism (New
York University Press, 2018); V. Eubanks, Automating Inequality: How High-Tech Tools
Proﬁle, Police, and Punish the Poor (St Martin’s Press, 2018).

108
E.g., J. Ringelheim, ‘Collecting Racial or Ethnic Data for Anti-discrimination Policies:
A U.S.–Europe Comparison’ (2008) 10 Rutgers Race and Law Review 39; P. Simon, ‘The
Measurement of Racial Discrimination: The Policy Use of Statistics’ (2005) 57
International Social Science Journal 9–25; M. Chamallas, ‘Questioning the Use of
Race-Specific and Gender-Specific Economic Data in Tort Litigation: A Constitutional
Argument’ (1994) 63 Fordham Law Review 73.
109
American Law Institute, Principles of the Law.
110
US Department of Justice, ‘The Fraud Section’s Foreign Corrupt Practices Act
Enforcement Plan and Guidance’.
111
F. Baddache, ‘What to Learn from France’s and UK’s Human Rights Due Diligence
Laws?’, KSAPA (15 June 2019), https://ksapa.org/what-to-learn-from-france-and-uks-
human-rights-due-diligence-laws/.
112
See Australian Modern Slavery Act 2018, Act No. 153 of 2018.
113
Backer, ‘Theorizing Regulatory Governance Within Its Ecology’.
114
P. Baxter, ‘Corporate Governance Ratings and Financial Performance: Evidence from
Australia’ (2014) 5 International Journal of Corporate Governance 178–96.
115
D. Kerwer, ‘Standardizing as Governance: The Case of Credit Ratings Agencies’, in A.
Heritier (ed.), Reinventing European and International Governance (Rowman &
Littlefield, 2002), pp. 293–316, at p. 294.

4.5 Conclusion
The relationship between traditional governance orders, in a context of
spatially distinct but intermeshed legal/normative orders, remains to be
fully explored. This chapter suggested some points of entry and on
fundamental approaches. First, the use of metrics and the quantiﬁcation
of accountability has moved beyond an increasingly sophisticated palette
of rankings and inducement to become a regulatory space in its own
right. Second, that regulatory space embeds politics and law within the
construction of its analytics and the determination of the meaning of
rankings. China is building a centralized system tied to its political
organization. Most of the elements of social credit have already been
developed in the West. But the uniﬁcation of the various elements, and
their seamless operation, would be a great innovation. While the West
approaches data-driven governance entanglements through the lens of
privatization and markets,116 China inverts the trajectories of entangle-
ment, focusing instead on recreating within the state the universe of data-
driven governance in which law becomes the instruction manual for the
operation of social ordering through data-driven analytics. Third, these
systems pose a challenge for the conventional understanding of entangle-
ment among systems all characterized by qualitative approaches to
regulation. Perhaps most interesting of all the consequences of these
social credit systems may be their ability to absorb traditional systems,
and in that process of absorption to reduce the centrality of borderlands
between systems.

116
C. Cutler, ‘The Privatization of Global Governance and the Modern Law Merchant’, in
A. Heritier (ed.), Reinventing European and International Governance (Rowman &
Littleﬁeld, 2002), pp. 127–58.

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    ? 
Hints of this trajectory are evident in the movement towards compli-
ance and accountability. These increasingly data-driven exercises turn
traditional governance systems, and the governance systems arising
between and within them (conventional spatiality of governance), into
the generators of data that themselves can be subject to management in
accordance with principles and objectives. These objectives may them-
selves be drawn from the political-cultural assumptions of society or
themselves may be dynamic expressions monitored through the aggre-
gate conduct of data generators themselves. The multiplicity of legal
regimes, then, is itself a source of data useful for data-driven analytics
that can manage these as well as aid in the management of systems.117
This suggests entanglement of a different order, between qualitative and
quantitative regulatory measures which increasingly fold one into the
other while retaining an element of autonomy based on the different
regulatory spaces from which they are sourced.
What is clear is that entanglement can no longer ignore the legalities of
data-driven governance even as it seeks to embed its language and
structure its communication across systems that do not speak the same
language. The entanglements of a law after modernity118 become more
complicated – not merely as between distinct and polycentric rule
systems sharing common characteristics (the forms and functions of
rules), but now between systems that do not speak the same language
(words versus metrics, compliance versus assessment, etc.). Governance
evolves from the language and conceptual universe of politics and prin-
ciples to the language of the operating system grounded in systemic
objectives. In a world of algorithms, those who would devise them will
be king. And those who would be kings in Western democratic republics
may well soon be scientists and not lawyers.119 ‘When you look at the
most important issues facing our country, it is climate change or health-
care policy or cyber security, the integrity of our elections. Who better to
address these issues than a scientist?’120 Who better indeed, when the

117
E. Finn, What Algorithms Want: Imagination in the Age of Computing (MIT Press,
2017).
118
S. Douglas-Scott, Law after Modernity (Hart Publishing, 2013).
119
M. Dhar, ‘Hey, Congress: Scientists Are Coming for Your Seats’, LiveScience (26 April
2018), www.livescience.com/62411-scientists-running-for-congress.html.
120
K. Karson, ‘“The Year that Science Strikes Back”: Historic Number of Scientists
Taking Over Ballots in 2018’, ABC News (9 February 2018), https://abcnews.go.com/
Politics/year-science-strikes-back-historic-number-scientists-taking/story?id=52959780
(quoting Shaughnessy Naughton president of 314 Action organization).

121
F. Nietzsche, On the Genealogy of Morals: A Polemic, trans. W. Kaufmann and R. J.
Hollindale (Vintage Books, 1967), pp. 58–9.
122
J. Cheney-Lippold, We Are Data: Algorithms and the Making of Our Digital Selves
(New York University Press, 2017).

Belt, Road and (Legal) Suspenders

Entangled Legalities on the ‘New Silk Road’

   

5.1 Introduction
This chapter aims to make three main descriptive and implicitly critical
points of varying importance regarding the phenomenon of ‘entangled
legalities’,1 using China’s ‘Belt and Road Initiative’ (BRI) as a platform
for discussion.
The ﬁrst point, deceptively the simplest, is that legal entanglement is
not necessarily an outcome of chance, anarchy or disorder, but can rather
be produced and augmented by centralized (albeit not necessarily struc-
turally hierarchical) political aims and ideas, that create legal and regula-
tory ripple effects, in ways both intended and unintended. Thus, for
example, BRI, also previously known as the ‘One Belt, One Road’
(OBOR) and more romantically as the ‘New Silk Road’, is a central
controlling idea in the People’s Republic of China’s (PRC) thirteenth
ﬁve-year plan (2016–20) and beyond,2 clearly guided from above within

Thanks to Yael Berda, Marcia Harpaz, Nico Krisch and Heng Wang for comments on earlier
drafts, and to the participants in the May, 2018 workshop on ‘Entangled Legalities’ at the
Graduate Institute Geneva. The cut-off date for factual discussion in this chapter is
15 September 2019, and all websites referred to were accessible then.
1
As identiﬁed in this project’s framing piece, see Chapter 1.
2
See Chapter 51, ‘The 13th Five-Year Plan for Economic and Social Development of the
People’s Republic of China’ (ofﬁcial translation https://en.ndrc.gov.cn/newsrelease_8232/
201612/P020191101481868235378.pdf); and National Development and Reform
Commission, Ministry of Foreign Affairs and Ministry of Commerce of the People’s
Republic of China, ‘Vision and Actions on Jointly Building Silk Road Economic Belt
and 21st-Century Maritime Silk Road’ (March 2015), https://en.ndrc.gov.cn/newsrelease_
8232/201612/P020191101481868235378.pdf. For comprehensive analysis, see J. Chaisse
and J. Górski (eds), The Belt and Road Initiative: Law Economics and Politics (Brill Nijhoff,
2018); and H. Wang, ‘China’s Approach to the Belt and Road Initiative: Scope, Character
and Sustainability’ (2019) 22(1) Journal of International Economic Law 29–55.



3
On BRI/OBOR as a global geopolitical and economic strategy, see U. W. Chohan, ‘The
Political Economy of OBOR and the Global Economic Center of Gravity’, in J. Chaisse and
J. Górski (eds), The Belt and Road Initiative: Law Economics and Politics (Brill Nijhoff,
2018), pp. 59–82, at p. 59. A much harder line, that envisions China’s strategy for global
supremacy, is taken in M. Pillsbury, The Hundred-Year Marathon: China’s Secret to
Replace America as the Global Superpower (St. Martin’s Grifﬁn, 2015), p. 244, mentioning
BRI/OBOR only as a means to an end.
4
Many contend that it is, and China does not seem to conceal this; see W. Zhou and
M. Esteban, ‘Beyond Balancing: China’s Approach towards the Belt and Road Initiative’
(2018) 27 Journal of Contemporary China 487–501; W. A. Callahan, ‘China’s “Asia Dream”:
The Belt Road Initiative and the New Regional Order’ (2016) 1 Asian Journal of
Comparative Politics 226–43. A fascinating though clearly propagandist exposé of BRI as a
global governance project, including rhetoric on ‘the construction of a community with a
shared future for mankind’, can be found in H. Liang and Y. Zhang, The Theoretical System
of Belt and Road Initiative (People’s Publishing House and Springer Nature, 2019).

5
The focus here is deliberately on individual actors and agents engaged with different levels
and dimensions of law; the role of the individual in international legality is increasingly
acknowledged, from a variety of perspectives. See, e.g., A. Peters, Beyond Human Rights:
The Legal Status of the Individual in International Law (Cambridge University Press,
2016); T. Megiddo, ‘Methodological Individualism’ (2019) 60 Harvard Journal of
International Law 219–80; and T. Broude and I. Levy, ‘Outcome Bias and Expertise in
Investigations under International Humanitarian Law’ (2020) 30(4) European Journal of
International Law, 1303–18.
6
MOFCOM is China’s Ministry of Commerce. As international trade and governance
scholars Gao and Shaffer have recently put it, ‘MOFCOM has a Janus-faced role of looking
inward and outward’, in the sense that it regulates both domestic and international
commercial affairs – see G. Shaffer and H. Gao, ‘China’s Rise: How it took on the U.S.
at the WTO’ (2018) 1 University of Illinois Law Review 115–84, at 138. As in trade, the
MOFCOM mandate covers both outgoing and incoming foreign investment, including
International Investment Agreements; see K. P. Sauvant and V. Z. Chen, ‘China’s
Regulatory Framework for Outward Foreign Direct Investment’ (2014) 7 China
Economic Journal 141–63; and A. C. Dai, ‘The International Investment Agreement
Network under the “Belt and Road” Initiative’, in J. Chaisse and J. Górski (eds), The
Belt and Road Initiative: Law Economics and Politics (Brill Nijhoff, 2018), pp. 220–49, at
p. 220.

5.2 Between Centralized Goals and Localized Effects:

Entanglement, from above
Perhaps counterintuitively, entangled legalities are not necessarily (or at
all) a chance or accidental occurrence, disrupting an otherwise settled
and logically well-organized legal order. Entangled legalities clearly defy

7
The fragmentation of international law has been a central feature in both the practice and
theorization of international law since the rise of distinct regimes and institutions in the
1990s, exacerbating the decentralized and anarchic nature of international law (see, e.g.,
M. Koskenniemi and P. Leino, ‘Fragmentation of International Law? Postmodern
Anxieties’ (2002) 15 Leiden Journal of International Law 553–79; Report of the Study
Group of the International Law Commission, ‘Fragmentation of International Law:
Difficulties Arising from the Diversification and Expansion of International Law’ (13
April 2006) UN Doc A/CN.4/L.682, as corrected (11 August 2006) UN Doc A/CN.4/
L.682/Corr.1 (finalized by Martti Koskenniemi). It remains a fixture of international legal
debate to this day (e.g. T. Megiddo, ‘Beyond Fragmentation: On International Law’s
Integrationist Forces’ (2019) 44 Yale Journal of International Law 115–48).

8
H. Kelsen, ‘The Concept of the Legal Order’ (1982) 27 The American Journal of
Jurisprudence 64–84.
9
W. N. Hohfeld, ‘Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1917)
26 The Yale Law Journal 710–70.
10
See Section 1.1 in Chapter 1.
11
T. Duve, ‘Entanglements in Legal History: Introductory Remarks’, in T. Duve (ed.),
Entanglements in Legal History: Conceptual Approaches (Max Planck Institute for Legal
History, 2014), pp. 3–25, at p. 8.
12
M. Rosenfeld, ‘Rethinking the Boundaries between Public Law and Private Law for the
Twenty First Century: An Introduction’ (2013) 11 International Journal of Constitutional
Law 125–28 and subsequent contributions in the same issue of the journal: A. Supiot,
‘The Public–Private Relation in the Context of Today’s Refeudalization’ (2013) 11
International Journal of Constitutional Law 129–45; P. Goodrich, ‘The Political
Theology of Private Law’ (2013) 11 International Journal of Constitutional Law 146–61;
and J. Resnik, ‘Globalization(s), Privatization(s), Constitutionalization, and Statization:
Icons and Experiences of Sovereignty in the 21st Century’ (2013) 11 International Journal
of Constitutional Law 162–99.
13
Duve, ‘Entanglements in Legal History’, p. 8.
14
H. Bull, The Anarchical Society: A Study of Order in World Politics (Macmillan, 1977).
15
Krisch identiﬁes these three ‘pathways’ to entanglement, see Section 1.4.2 in Chapter 1.

16
See A. Chatzky and J. McBride, ‘China’s Massive Belt and Road Initiative’, Council on
Foreign Relations Backgrounder (21 May 2019), www.cfr.org/backgrounder/chinas-mas
sive-belt-and-road-initiative.
17
Quite recently: ‘Will China’s Belt and Road Initiative Outdo the Marshall Plan?’, The
Economist (8 March 2018), www.economist.com/finance-and-economics/2018/03/08/
will-chinas-belt-and-road-initiative-outdo-the-marshall-plan.
18
The TPP was envisioned as a ‘mega-regional’ trade and investment agreement encom-
passing most of the economies of the Pacific Rim. One of President Trump’s first
decisions upon entering office was to withdraw from the TPP, with significant regional
implications (see S. Narine, ‘US Domestic Politics and America’s Withdrawal from the
Trans-Pacific Partnership: Implications for Southeast Asia’ (2018) 40 Contemporary
Southeast Asia 50–76). All other parties to the negotiations continued to discuss a revised
regional trade agreement without the USA, the Comprehensive and Progressive
Agreement for Trans-Pacific Partnership, which entered into force for the first six
ratifying states in December 2018; for comparison, see H. Wang, ‘The Future of Deep
Trade Agreements: The Convergence of TPP (and CPTPP) and CETA)?’ (2019) 53
Journal of World Trade 317–42.

19
M. J. Green, ‘The Legacy of Obama’s ‘Pivot’ to Asia’, Foreign Policy (3 September 2016),
https://foreignpolicy.com/2016/09/03/the-legacy-of-obamas-pivot-to-asia/.
20
Indeed, some see the possible strengthening of the United Kingdom’s bilateral economic
relations with China as a remedy to problems arising from Brexit, while others see it as a
threat to the UK’s sovereignty; see K. Brown, ‘How Brexit Britain Can Gain from China’s
Belt and Road’, This Week in Asia (12 May 2017), www.scmp.com/week-asia/opinion/
article/2094166/what-brexit-britain-has-gain-chinas-belt-and-road; and M. Auslin,
‘Brexit Britain Is Eager for a Sweet Deal with Beijing: But at What Price?’, The
Spectator (4 August 2018), www.spectator.co.uk/2018/08/making-china-great-again/. As
of the time of this writing, there is no United Kingdom–China trade arrangement outside
of the WTO.
21
See K. Johnson, ‘Why Is China Buying up Europe’s Ports?’, Foreign Policy (2 February
2018).
22
‘Serbia Starts Construction of Chinese-Funded Railway to Budapest’, Reuters
(28 November 2017), www.reuters.com/article/serbia-china-railway/serbia-starts-con
struction-of-chinese-funded-railway-to-budapest-idUSL8N1NY4RR.
23
AFP, ‘Europe Casts a Wary Eye on China’s Silk Road Plans’, Straits Times (7 January
2018), www.straitstimes.com/world/europe/europe-casts-a-wary-eye-on-chinas-silk-
road-plans.
24
See Memorandum of Understanding between the Government of the Republic of Italy and
the Government of the People’s Republic of China on Cooperation within the Framework of
the Silk Road Economic Belt and the 21st Century Maritime Silk Road Initiative (March
2019), www.governo.it/sites/governo.it/ﬁles/Memorandum_Italia-Cina_EN.pdf.
25
See European Commission and High Representative of the Union for Foreign Affairs and
Security Policy, ‘Joint Communication to the European Parliament, the European
Council and the Council, EU-China – A Strategic Outlook’ (12 March 2019) JOIN

(2019) 5 ﬁnal, https://ec.europa.eu/commission/sites/beta-political/ﬁles/communication-

eu-china-a-strategic-outlook.pdf. Belgian/EU politician and EU Parliament Brexit coord-
inator Guy Verhofstadt has said that Italy’s endorsement of BRI is ‘antithetical’ to the
interests of the EU and its member states (see G. Verhofstadt, ‘Europe Must Unite on
China’, ING THINK Outside (29 March 2019), https://think.ing.com/opinions/guy-ver
hofstadt-europe-must-unite-on-china/.
26
‘Debt trap diplomacy’ concerns – the idea that high ﬁnancial indebtedness to China will
cause political dependence – has also been raised in Asia, in particular following the
leasing of the Hambantota Port to a Chinese corporation for ninety-nine years, following
loan non-performance; see T. H. Shih, ‘China Risks Imperial Image With Belt and Road
Initiative’, Asia Sentinel (8 October 2019), www.asiasentinel.com/econ-business/china-
imperial-image-belt-and-road-initiative/.
27
See European Commission, ‘EU Charts New Ground in Global Connectivity – Looks to
Boost Strategic Ties with Asia’, Press Release IP/19/5851 (26 September 2019), https://
europa.eu/rapid/press-release_IP-19–5851_en.htm.
28
George Kennan (22 February 1946), https://digitalarchive.wilsoncenter.org/document/
116178.pdf.
29
See European Commission and High Representative of the Union for Foreign Affairs and
Security Policy, EU-China: A Strategic Outlook (12 March 2019), JOIN (2019) 5, https://
ec.europa.eu/info/sites/default/ﬁles/communication-eu-china-a-strategic-outlook.pdf.

30
L. Zeng, ‘Conceptual Analysis of China’s Belt and Road Initiative: A Road towards a
Regional Community of Common Destiny’ (2016) 15 Chinese Journal of International
Law 517–41, at 539.
31
Such as the 2017 MOU between China’s National Development and Reform Commission
(NDRC) and the United Nations Economic Commission for Europe (UNECE) (UNECE-
NDRC MOU), www.unece.org/ﬁleadmin/DAM/MoU_between_UNECE___the_NDRC_
in_China_2017–05–14.pdf; and AFP, ‘Europe Casts a Wary Eye on China’s Silk
Road Plans’.
32
Wang, ‘China’s Approach to the Belt and Road Initiative’, section II.
33
M. Callaghan and P. Hubbard, ‘The Asian Infrastructure Investment Bank:
Multilateralism on the Silk Road’ (2016) 9 China Economic Journal 116–39.
34
See www.silkroadfund.com.cn/.
35
M. A. Carrai, ‘It Is Not the End of History: The Financing Institutions of the Belt and
Road Initiative and the Bretton Woods System’ (2017) 14 Transnational Dispute
Management 1–14, at 2–3.

Compare to this unexpected source, Article 2 of the 1957 Treaty of Rome

establishing the European Economic Community:
The Community shall have as its task, by establishing a common market
and progressively approximating the economic policies of Member States,
to promote throughout the Community a harmonious development of
economic activities, continuous and balanced expansion, an increase in
stability, an accelerated raising of the standard of living and closer rela-
tions between the States belonging to it [emphases added].40

These passages are fascinating, when read side by side, in both their
similarities and their differences. The similarities of mutual beneﬁt,

36
See A. Roberts, H. C. Moraes and V. Ferguson, ‘The Geoeconomic World Order’, Lawfare
(19 November 2018), www.lawfareblog.com/geoeconomic-world-order, arguing that at
this time ‘We appear to be entering into a new geoeconomic world order, characterized
by great power rivalry between the United States and China and the clear use of economic
tools to achieve strategic goals’.
37
The sources in n. 2 provide the most comprehensive surveys to date, especially Wang.
38
Ibid.
39
See n. 2.
40
See Art. 2 of EEC, ‘Treaty of Rome: Treaty Establishing the European Economic
Community’ (25 March 1957) 298 U.N.T.S. 3, 4 Eur. Y.B. 412.

5.3 Between Separateness and Entanglement: Vignettes

of Entangled Legal Practice on the New Silk Road
A comprehensive study of the different legal practices and local perspec-
tives of particular individual actors, legal and otherwise, with BRI, is well
beyond the scope of this chapter. Nevertheless, I wish to demonstrate
that these actors are the very contact points of entanglement, each of
them representing a normative and/or legal system that is entangled with
BRI and with other systems. The following are constructed vignettes of
professionals and other agents interacting with BRI and other related

41
D. Zhang, ‘The Concept of “Community of Common Destiny” in China’s Diplomacy:
Meaning, Motives and Implications’, Asia and the Paciﬁc Policy Studies (16 April 2018).

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  
legal systems in recent history, from variegated legal and geographical
perspectives. The reader can consider this as a narrative or as an
imagined or hypothetical ethnography,42 but the section does not aspire
to methodological insight, rather aiming at illustrating one end of the
spectrum of legal entanglement, namely, the relative separateness of legal
actors, actions and environments and their interconnections. The names,
characters and incidents portrayed can be thought of as fiction, but they
are all based on or derived from real situations. Thankfully, there are
social scientists and legal scholars conducting actual field research in this
area. The contribution here is aimed towards the theory of entangled
legalities, not to legal sociology or anthropology or to the empirical study
of BRI, at least not directly.
The main point to be made here is that entangled legalities exist on a
regular basis, first and foremost because of separateness and compart-
mentalization derived from structures of legal and law-relevant practice,
as well as overarching cognitive limits, that constrain these actors to a
focus on their particular environments, backgrounds and objectives. In
Section 5.4 I show, through a more detailed real-life example, how this
separateness is only part of the story of legal entanglement, as the distinct
fields of legal practice inevitably, though sometimes unexpectedly, have
points of contact and interdependence.
Let us start where it all begins, in China itself, with an initial ethno-
graphical vignette. A is a very senior lawyer at the investment law division
of MOFCOM, the PRC’s Ministry of Commerce.43 A, in his late thirties,
works in Beijing, which is no less than the centre of the real-world universe
for him (forget about Manhattan or Berlin, unless you are thinking of
Leonard Cohen). Born in a prefecture-level city in Hubei province in
central China, he has been predominantly trained and groomed in the
PRC, from a very young age, for public service, through its system of

42
Ethnography is a (not uncontroversial) anthropological/sociological qualitative method-
ology of describing people or cultures through observation; it has become accepted also in
socio-legal studies (see, e.g., J. Starr and M. Goodale (eds), Practicing Ethnography in Law:
New Dialogues, Enduring Methods (Palgrave Macmillan, 2002)) entailing interviews, field
research and other qualitative social science methods. An excellent example of ethno-
graphical research in the field of international economic law is G. A. Sarfaty, Values in
Translation: Human Rights and the Culture of the World Bank (Stanford University Press,
2012). The vignettes in this section are not based on such systematic research, so they
cannot claim to be a true ethnography, and don’t wish to be, hence the qualifiers
‘imagined’ or ‘hypothetical’.
43
See references in n. 6.

44
For a survey on competing views regarding Chinese meritocracy, and a comparison with
promotion systems in Western democracies (at the ministerial level), see D. S. Lee and P. J.
Schuler, ‘Testing the “China Model” of Meritocratic Promotions: Do Democracies Reward
Less Competent Ministers than Autocracies?’ (2020) 53 Comparative Political Studies 531–66.
45
The Communist Party plays a crucial role in Chinese governance, and according to some
analysis, over the last few years, administrative power is shifting in the direction of the
Party; see L. L. P. Gore, ‘The Communist Party-Dominated Governance Model of China:
Legitimacy, Accountability, and Meritocracy’ (2019) 51 Polity 161–94.
46
In line with Part 16 of the ﬁve-year plan (see n. 2), which addresses socialist values and
ethics as well as Chinese cultural heritage.
47
On China’s BRI IIA policy, see Dai, ‘The International Investment Agreement Network
under the “Belt and Road” Initiative’; and Sauvant and Chen, ‘China’s Regulatory
Framework for Outward Foreign Direct Investment’.
48
Similarly, see C. He, ‘The Belt and Road Initiative as Global Public Good: Implications for
International Law’, in W. Shan, K. Nuotio and K. Zhang (eds), Normative Readings of the
Belt and Road Initiative: Road to New Paradigms (Springer, 2018), pp. 85–104.
49
As an example, China has at least two co-existing agreements with South Korea, which
include investment protection provisions – a Bilateral Investment Agreement from
2007 and a Trade Agreement from 2012.

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  
For A, ‘law’ is technically public international law, that needs to be
upheld as an overarching order that serves China’s interests in general
and BRI in particular; but in practice much of it is commercial law. This
need not be enforced through traditional Western dispute settlement
systems, but through combinations of legal argumentation and diplo-
macy, and alternative dispute resolution procedures, such as mediation.50
Moving on to another entangled and entangling actor at the European
portal representing the other end of BRI, B is a mid-level legal counsel in
the Greek Ministry of Infrastructure, Transport and Networks in the
Athens suburb of Cholargos. At the age of thirty-two, B’s worldview is
inevitably coloured by the financial and government debt crises of the
2000s that began when she was a law student at the Kapodistrian
University of Athens, and the scepticism that it has brought in Greece
towards international institutions, both at the EU level51 and beyond.
B aspires to attain an internationally recognized graduate law degree,
perhaps in the UK (though this is becoming less attractive because of
Brexit, making the Netherlands her new first choice), but she first needs to
establish herself economically and in her professional career, and perhaps
start a family. B is a formalist, she follows the book, even when the book is
blurred. But she also patriotically understands her state’s strengths and
weaknesses, and that an opportunity for foreign investment and increased
employment should not be passed up. In her eyes, austerity, imposed by
international neoliberal forces, pales in the face of the riches offered by a
powerful and trustworthy economic good faith partner from China. The
Chinese state-operated enterprises that offer lucrative terms for infra-
structure projects that place Greece at a crucial juncture between China
and the rest of Europe are a breath of fresh air. Yes, the Chinese can be

50
China has been involved in only a handful of disputes under its IIAs. There is a trend
towards constructing and viewing BRI projects and potential disputes related to them as
private, commercial law issues, and within that framing to encourage resolution through
mediation; see, e.g., the MOU reportedly signed by the Singapore International Mediation
Centre and the China Council for the Promotion of International Trade in January 2019,
setting up a BRI-focused panel of mediators (T. D. Wei, ‘Singapore, China to Set Up
Mediators’ Panel for Belt and Road Projects’, Straits Times (25 January 2019), www
.straitstimes.com/asia/east-asia/singapore-china-to-set-up-mediators-panel-for-belt-and-
road-projects).
51
Greece was traditionally a Europeanist state, but public opinion towards the EU and its
major member states has declined, although not to the level of ‘Grexit’; see B. Clements,
K. Nanou and S. Verney, ‘“We No Longer Love You, But We Don’t Want to Leave You”:
The Eurozone Crisis and Popular Euroscepticism in Greece’ (2014) 36 Journal of
European Integration 247–65.

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,   ()  
difficult to deal with, but they don’t have the arrogance of the Western
Europeans or Americans.52 They know what civil law means and are
willing to negotiate flexibly and pragmatically. B is not really sure what
BRI is – she’s heard of it, after all she reads the Greek economic press and
The Economist from time to time. Over the last few years, however, she
has been much more focused on settling the terms of the corporate
franchise of a shipping container terminal in the port of Piraeus, and
the sale of a majority share in the port authority, with a huge Chinese
state-owned shipping company. As time goes by, she takes pride in her
small professional contribution to the major increase in shipping con-
tainer traffic through Piraeus (about ten times the 2008 volume),53 as well
as the increase in the number of Chinese tourists visiting Greece, all of
which have helped the Greek economy. She was delighted when, in
August 2018, the Tsipras government signed a BRI MOU with China,
and is pleased that the current government is continuing to expand the
relationship, while cognizant of US and EU concerns.54
For B, law is mainly Greek administrative and corporate law, in the
shadow of EU law; A’s world of law is entirely foreign to her.
In-between A and B, C is a partner in the Almaty office of X, Y and Z
LLP, a global ‘big law’ firm. He is only aged twenty-eight, actually born
on the day that Kazakhstan declared sovereignty on its territory just
before the dissolution of the Soviet Union. He is considered something
of a maverick in the Kazakh energy and infrastructure law scene. Fluent
in Kazakh, Russian and English, his legal education is exclusively from
law schools in Kazakhstan. He is a deal-maker, building on his excellent
family connections. His legal specialty is project finance, and he sees BRI
as the future – breaking away from Russia, disengaging from the USA
(with which he has become personally disillusioned), China is the way
forward to Kazakhstan’s prosperity and international recognition.55

52
According to public opinion polls (2017), between 50 and 60 per cent of the Greek
population considers China favourably; see P. Le Corre, ‘China’s Rise as a Geoeconomic
Inﬂuencer: Four European Case Studies’, Carnegie Endowment for International Peace
Working Paper (2018), p. 20, https://carnegieendowment.org/ﬁles/WP_LeCorre_China_
Final_Web.pdf.
53
For more details of COSCO’s Piraeus deals, see ibid. at 15.
54
See S. Lau, ‘Amid Headwinds, Greece Gives Cosco Green Light for Partial Piraeus Port
Upgrade’, South China Morning Post (11 October 2019), www.scmp.com/news/china/diplo
macy/article/3032618/amid-headwinds-greece-gives-cosco-green-light-partial-piraeus.
55
See N. Kassenova, ‘China’s Silk Road and Kazakhstan’s Bright Path: Linking Dreams of
Prosperity’ (2017) 24 Asia Policy 110–16.

56
See http://equator-principles.com/ and www.unglobalcompact.org/ respectively.
57
A. Higgins, ‘China’s Ambitious New “Port”: Landlocked Kazakhstan’, New York Times (1
January 2018), www.nytimes.com/2018/01/01/world/asia/china-kazakhstan-silk-road
.html; and H. Ruehl, ‘The Khorgos Hype on the Belt and Road’, The Diplomat
(27 September 2019), https://thediplomat.com/2019/09/the-khorgos-hype-on-the-belt-
and-road/.
58
Kazakhstan is highly ranked in the World Bank’s ‘Ease of Doing Business’ index (see
https://data.worldbank.org/indicator/IC.BUS.EASE.XQ), but its business and corporate
law is a patchwork of different legal foundations and practices, itself a legal entanglement;
see F. Karagussov, ‘Development of Company Law in Kazakhstan: Main Issues and
Trends’ (2016) 24 Juridica International 84–95; and Baker and McKenzie, ‘Doing
Business in Kazakhstan 2019’ (2019), www.bakermckenzie.com/-/media/ﬁles/insight/
guides/2019/doing-business-in-kazakhstan-2019.pdf?la=en.
59
Consider T. Yu, ‘China’s “One Belt, One Road Initiative”: What’s in It for Law Firms and
Lawyers?’ (2017) 5 The Chinese Journal of Comparative Law 1–21. The article deals
primarily with gains to lawyers in China, but clearly the same question is asked by lawyers
around the world.

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,   ()  
with a lease until 2059. At twenty-four, he was extremely disappointed
with the 2018 surrender of the leadership of the Baloch Liberation Army
(BLA), which seems to him connected to China’s increased involvement
in the region.60 He is very concerned that Chinese control in his home-
land will beneﬁt elites and not trickle down to his people. Weighing his
steps carefully, he is not excluding the possibility of joining militant
factions and insurgents that advocate taking armed action against the
Chinese presence and have even attacked Chinese engineers under the
name of the BLA, if only to gain more political traction, even independ-
ence, by raising political risk to BRI operations.61
For D, law, in general, is not very relevant. There is tribal law, there are
social norms, but he is not concerned with Pakistani law or with con-
tracts beyond a handshake (that is to say, legality can be entangled with
an absence of legality too). A’s, B’s and C’s worlds of legality are as distant
from him as are their air-conditioned ofﬁces.
Even more distant, occupying her own tempered chambers, E is a
western European Judge in the European Court of Human Rights.
Trained in the best law schools of Europe, a well-respected professor
of law in her country and with several honorary doctorates around the
world, for her, Strasbourg is no less than the centre of the normative
universe (forget about Geneva, Washington, DC or Karlsruhe,
let alone San Jose or Beijing), and the European Convention for the
Protection of Human Rights and Fundamental Freedoms is her moral
compass. It is of course the law, and even more so, it is a constitution.
Yes, it can get messy sometimes with the overburdened caseload, and
the unclear effectiveness and the constitutional orders of the Council
of Europe members, such as Georgia and Azerbaijan. These are BRI
states, but now also Greece, Italy, Hungary, Serbia and fourteen
other Central and Eastern European states are. BRI is not remotely
on her judicial radar, though if something relevant comes up in the

60
F. Bokhari and K. Stacey, ‘China Woos Pakistan Militants to Secure Belt and Road
Projects’, Financial Times (19 February 2018), www.ft.com/content/063ce350-1099-
11e8-8cb6-b9ccc4c4dbbb.
61
See D. R. Chaudhury, ‘Baloch Liberation Army Attacks Chinese Assets for 3rd Time
Since Aug 2018’, Economic Times (1 April 2019), https://economictimes.indiatimes.com/
news/defence/baloch-liberation-army-attacks-chinese-assets-for-3rd-time-since-aug-
2018/articleshow/68664144.cms?from=mdr; and M. A. Notezai, ‘Will Balochistan Blow
up China’s Belt and Road?’, Foreign Policy (30 May 2019), https://foreignpolicy.com/
2019/05/30/will-balochistan-blow-up-chinas-belt-and-road/.

5.4 Between Entanglement and Interdependence:

Bringing Separate Strands Together
In light of the extreme plurality of law and viewpoints of practice –
entangled legalities along the New Silk Road – as described only
indicatively in Section 5.3, many questions may arise regarding their
interdependence, especially as I have so far emphasized their separate-
ness. For example, how might Chinese officials like A link their efforts
and rules with the legalities found in the places where they are doing
business and seeking influence, when they come into contact with people
like B and C? How would the last two and their corollaries along the BRI
navigate potential tensions between Chinese expectations and their own
laws and norms? How should Chinese actors engage with normative
sensibilities they may risk offending, such as those of E – and also of
D? To be sure, these questions are worthy of real rather than hypothetical
research, whether through doctrinal legal analysis or through political,
sociological and anthropological field research. Instead, within the
bounds of this chapter, we can look at a brief case study, to appreciate
the interdependence of separate entangled strands of legality in action.
The following is a brief descriptive analysis of such a case, based on
mainly secondary sources.
The case relates to the ongoing project for the modernization of the
train line between Belgrade and Budapest, the capitals of Serbia and

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,   ()  
Hungary respectively, and the entanglement of BRI project-related law
with EU law. The project, which will include high-speed trains, fits in
with the broader vision of modernized train lines from Piraeus/Athens
into the heart of central Europe,62 and indeed with its engagement
strategy with Central and Eastern European countries, which preceded
BRI – the so-called ‘16+1 initiative’ informally launched in 2011,63 now
often referred to as ‘17+1’, including Greece. Our focus here is on the
segment that lies in Hungarian territory and the project’s interaction with
EU law (Serbia not being an EU member state). Hungary was the first EU
member state to sign a BRI MOU with China, in 2015.64 In November of
the same year, China, Hungary and Serbia signed a US$1.9 billion
government-to-government (G2G) agreement regarding the Belgrade–
Budapest line, and the project’s main contractor was named – a consor-
tium between the Hungarian State Railways corporation and two Chinese
railway companies. This legal relationship – the China–Hungary MOU
and the infrastructure construction and financing agreement – constitute
one strand in this story of entangled legality. The second strand emerged
and entangled with the first once the EU launched a preliminary
infringement procedure against Hungary in May 2017, based on con-
cerns that the absence of a competitive tender for the huge contract
violated EU competition and procurement law; and that the role of the
Hungarian corporation, with only 15 per cent of the deal (and 85 per cent
of the project to be funded through twenty-year loans from China) was
unclear. Reportedly, the Hungarian government was of the position that
since the infrastructure agreement was not within the commercial com-
petence of the EU, it was ‘none of Brussels’ business’.65
Even at this early stage of the story – the plot is soon to thicken,
though the general setup is the same – one can think of the sources of
both separateness and interdependence in this case of entangled legality,
at least on a speculative basis. If one is charitable, at least regarding intent

62
For external analysis, see ‘The Potential for Growth through Chinese Infrastructure
Investments in Central and South-Eastern Europe along the “Balkan Silk Road”’, report
prepared by Dr Jens Bastian for the European Bank for Reconstruction and Development
(July 2017), www.ebrd.com/documents/policy/the-balkan-silk-road.pdf.
63
See T. Matura, ‘The Belt and Road Initiative Depicted in Hungary and Slovakia’ (2018) 7
(2) Journal of Contemporary East Asia Studies 174–89, section 4.
64
Ibid., section 5.1.2.
65
J. Spike, ‘EC Launches Infringement Proceeding Concerning Budapest–Belgrade Railway
Project’, Budapest Beacon (16 September 2016), https://budapestbeacon.com/ec-
launches-infringement-proceeding-concerning-budapest-belgrade-railway-project/.

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  
rather than legal capacity, perhaps the Hungarian public and most likely
also private lawyers (think of variations of B and C) involved in the rail
infrastructure agreement truly thought that it had nothing to do with EU
law, having been signed between three governments in an area that
generally is (so Hungary claims) not within EU competence. Perhaps
they just didn’t think of it, being so cognitively focused on making the
deal on the legal separateness of this kind of agreement. Or, less charit-
ably, maybe they were aware of possible problems, but took the chance in
order to make progress with China, and with the hope that the EU would
back down for political reasons. Least charitably, they had other incen-
tives that perhaps justified EU scrutiny.
China’s lawyers – A’s colleagues in a different department of a different
ministry and their counterparts in the Chinese corporations – were either
oblivious to EU law and/or did not consider the possibility that a govern-
mental party to a G2G agreement would make representations of this
nature with any real legal (or political) risk, or perhaps thought that if there
were a problem it would be handled as it would have been in China, or
were so self-motivated that they chose to ignore all of these issues, or
deliberately took this chance in order to signal to the EU their determin-
ation to engage with EU member states and corporations directly.
What about the EU Commission lawyers, whom we can to some
extent analogize to E? For them, there is no question that EU law on
competition, procurement, corporations and more are applicable,
answerable and supreme. To them, the infrastructure agreement is no
different than any of the multitude of structurally similar agreements that
are subject to EU law. Maybe this one required additional scrutiny due to
its size and mainly because of its role in bringing Chinese influence into
the heart of Europe.66
Apparently, conceding interdependence, Hungary issued a tender for
the project later in 2017,67 and a new one in late 2018, which was won in
April 2019 by a similar Chinese–Hungarian consortium, with a similar
financial structure,68 but for the fact that the Hungarian partner would be

66
See J. Kynge, A. Beesley and A. Byrne, ‘EU Sets Collision Course with China over “Silk
Road” Rail Project’, Financial Times (20 February 2017), www.ft.com/content/003bad14-
f52f-11e6–95ee-f14e55513608.
67
‘Hungary to Launch Tender on Budapest–Belgrade Rail Project’, RailPro (5 October
2017), www.railwaypro.com/wp/hungary-launch-tender-budapest-belgrade-rail-project/.
68
‘Hungarian–Chinese Consortium Wins Budapest–Belgrade Rail Contract’, IE – Industry
Europe (29 April 2019), https://industryeurope.com/hungarian-chinese-consortium-
wins-budapest-belgrade-rail-contract/.

5.5 Between Entanglement, State and Empire:

Beyond a Conclusion
In Sections 5.3 and 5.4, we saw that entangled legalities entail both
separateness and interdependence of legal systems. In Section 5.1, we
saw that legal entanglement need not be the result of chance or accident,
but can be a deliberately preferred form of international governance. We
can now add to this a ﬁnal observation: that entangled legalities as a form
of governance can be a preference of empire builders and empire bidders
(though not exclusively so), and an aggregation of the preferences and
attitudes of actors at a variety of levels of action.
In the realm of modern public international law, a similar point has been
made with respect to institutional and normative fragmentation by Eyal
Benvenisti and the late George Downs: powerful states thrive in fragmented
legal environments and encourage them because they divide and rule along
functional lines. These environments create high transaction costs for
normative integration, and cause ambiguity that deﬂects accountability
despite the existence of power.70 In a less positivistic mode, however,
sociologists have suggested that we should ‘look at empire as a set of

69
See ‘Talks on Budapest–Belgrade Rail Financing to be Accelerated’, Budapest Business
Journal (24 September 2019), https://bbj.hu/economy/talks-on-budapest-belgrade-rail-
ﬁnancing-to-be-accelerated_171667.
70
E. Benvenisti and G. W. Downs, ‘The Empire’s New Clothes: Political Economy and the
Fragmentation of International Law’ (2010) 60 Stanford Law Review 595–631.

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  
slow-moving, temporally based, entrenched, yet also changing political
formations that need to be studied to understand how they change, adapt
and move on to maintain themselves, partly through reproduction and
partly through innovation of their institutional structures’.71 Histories of
the British and other European empires,72 and of the American ‘non-
empire’,73 confirm the relationship between legal pluralism and the creation
of imperial domination over extended periods of time. It is no coincidence
that Queen Elizabeth included the statement that ‘Rome was not built in a
day’, albeit in different circumstances, in an address at the University of
Cambridge in 1564.74 No empire, new or old, is so built.
This ‘set of slow moving [. . .] political formations’ would seem to inevit-
ably lead to ‘entangled legalities’, or in other words, to a set of separate, but
enmeshed, legal and governance constructs. Although these constructs may
seem to lack a hierarchy or ‘centre’, they nevertheless constitute a system of
non-national power allocation, however vague it may be, for example
globalization as empire, selon Hardt and Negri.75 Alternatively, in a more
historified manner, empires may be built on entangled legalities as ‘trans-
national organizations that aim[ed] to mobilize the resources available not
only within their areas, but outside them as well’ that ‘[w]hatever their
origins, [. . .] ow[ed] their existence and their unity to the broad network of
connections that they manage[d] to establish’.76
These understandings of empire are not, of course, without contro-
versy or critique, as fitting to the topic itself.77 They are brought out here
to accentuate – once again, descriptively but implicitly critically – that
BRI, with its attributes and character of entangled legalities, shares
similarities with other imperialist projects, representing a shift ‘beyond
the state’ and perhaps postnational or transnational trends, at a time that

71
K. Barkey, Empire of Difference: The Ottomans in Comparative Perspective (Cambridge
University Press, 2008), p. 5.
72
L. Benton and R. J. Ross (eds), Legal Pluralism and Empires, 1500–1850 (New York
University Press, 2013).
73
D. Immerwahr, How to Hide an Empire: A History of the Greater United States (Farrar,
Straus and Giroux, 2019).
74
J. Nichols, The Progresses and Public Processions of Queen Elizabeth, Vol. 1 (John Nichols
and Son, 1823), p. 176.
75
M. Hardt and A. Negri, Empire (Harvard University Press, 2000).
76
H. Kamen, Empire: How Spain Became a World Power, 1492–1763 (Harper Collins,
2003).
77
F. Cooper, ‘Empire Multiplied: A Review Essay’ (2004) 46 Comparative Studies in Society
and History 247–72.

78
Ibid., 248, describing Hardt and Negri.

International Law and Its Interfaces

Giving Due Consideration

A Normative Pathway between UN Human Rights
Treaty-Monitoring Bodies and Domestic Courts

          

6.1 Introduction
Human rights law is one of the fields of law that creates the subject
matter overlap between international and domestic law. Human rights
treaties purport to regulate the governmental authority exercised over
individuals, which is, in parallel, regulated by domestic constitutional and
administrative law. This overlap creates the deliberative space between
human rights treaty-monitoring bodies and national authorities, includ-
ing domestic courts. In fact, judicial decisions can be at times ‘entangled’
with the findings of UN human rights treaty-monitoring bodies.
Domestic courts take note, discuss, accept or resist decisions, comments
or observations of UN human rights treaty-monitoring bodies. The
quality of such a deliberative space is crucial for the effectiveness of the
treaty-monitoring bodies, whose findings ultimately aim at bringing
about change to domestic legal frameworks and practices, including
those of the judiciary.
Against this background, this chapter engages in the analysis of path-
ways that guide the deliberative space involving UN human rights treaty-
monitoring bodies and domestic courts. Such pathways can be pragmatic
or sociological in nature. For instance, the unavailability of treaty body
findings in local languages significantly limits public knowledge about
them and the likelihood that litigant parties rely on general comments
and other treaty body findings. Interactions can be facilitated if judges
periodically receive training regarding the work of the monitoring bodies.
At the same time, domestic judges’ interactions with treaty body findings
have also been guided by normative pathways. They can originate in both
international and national law. In limited circumstances, such pathways
exhibit a formalistic character that Views, one of the categories of the


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  
documents produced by treaty bodies, have legal binding force. Yet it is
usually the case that normative pathways are much less dichotomous.
This chapter examines one of such normative pathways, namely that
state parties ought to give due consideration to the findings of UN
human rights treaty-monitoring bodies. The legal basis of such a duty
to consider remains contested. Furthermore, the duty to consider is
necessarily precarious, inasmuch as its effectiveness depends on how
precisely consideration is given by judges in a particular case.
Nevertheless, the duty to consider – and its normative variations, as will
be discussed in this chapter – occasionally appears in the reasoning of
domestic courts whose narrative is entangled with treaty interpretation
by UN human rights-monitoring bodies.
The chapter starts by outlining the different types of the findings of the
monitoring bodies (Section 6.2). Domestic courts’ engagement varies
depending on states, courts and judges. The limited research I have con-
ducted1 demonstrates a great deal of variance with regard to domestic
courts’ explicit engagement with the monitoring bodies. Domestic judges
may not be aware of the relevant documents; and even if they are, they
may reject the judicial relevance of such documents (Section 6.3). At the
same time, there are a number of domestic court decisions that have
explicitly invoked treaty body findings (Section 6.4). What matters for
the sake of this chapter is that judicial engagement can be guided by the
duty to consider and its variations (Sections 6.4 and 6.5). These pathways
serve as ‘interface norms’ that facilitate ties yet preserve discretion on the
part of domestic courts.2 Under limited circumstances, the duty to con-
sider may even be understood as entailing an obligation to give effect to
Views (Section 6.6). The duty to consider may not be a robust normative
path. Yet it can still pave the way for a sustainable and forward-looking
deliberative space, by creating the opportunities for learning and self-
reflection for domestic courts and the international guardians.

1
The chapter’s analysis is based on my previous publication: M. Kanetake, ‘UN Human
Rights Treaty Monitoring Bodies before Domestic Courts’ (2018) 67 International &
Comparative Law Quarterly 201–32. For the sake of the previous publication, I have
collected and analysed 150 domestic court decisions (decided from 1982 to 2016) across
forty-one jurisdictions. For the sake of the present chapter, I have additionally collected
and analysed forty other domestic court decisions (decided between 1992 and 2018) across
twenty-one jurisdictions, based on my own research, existing literature, the Oxford
Reports on International Law in Domestic Courts (ILDC) and the International Law
Reports (ILR).
2
See Chapter 1.

3
UN General Assembly, ‘Strengthening and Enhancing the Effective Functioning of the
Human Rights Treaty Body System’ (21 April 2014) UN Doc. A/RES/68/268, para. 38.
4
See N. Ando, ‘General Comments/Recommendations’, in R. Wolfrum (ed.), The Max
Planck Encyclopedia of Public International Law (Oxford University Press, 2008), para. 2.
5
This chapter consistently uses the term ‘Views’ to describe the types of ﬁndings regarding
individual communications or petitions, even if the ﬁndings can also be entitled as
‘Decisions’, etc.
6
These eight bodies are: HRC, CESCR, CERD, CEDAW, CAT, CRC, CRPD, and CED. The
CMW also anticipates the petition mechanism.
7
Report of the Secretary-General, ‘Status of the Human Rights Treaty Body System’ (10
January 2020) UN Doc. A/74/643, para. 18.

8
UNHRC, ‘Report of the Human Rights Committee, 123rd Session (2–27 July 2018), 124th
Session (8 October–2 November 2018), 125th Session (4–29 March 2019)’ (2019) UN
Doc. A/74/40, para. 25.
9
See, on the CERD’s work, R. Wolfrum, ‘The Committee on the Elimination of Racial
Discrimination’ (1999) 3 Max Planck Yearbook of United Nations Law Online 489–519, at
509.
10
CEDAW, ‘Concluding Observations on the Sixth Periodic Report of the Netherlands’
(24 November 2016) CEDAW/C/NLD/CO/6, para. 14.
11
Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits,
Judgment of 30 November 2010, [2010] ICJ Reports 639, para. 66.
12
Ibid., para. 66.
13
Ibid., para. 66 (emphasis added).
14
E.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion of 9 July 2004, [2004] ICJ Reports 136, paras 109–10. See
L. Crema, ‘The Interpretive Work of Treaty Bodies: How They Look at Evolutionary
Interpretation, and How Other Courts Look at Them’, in G. Abi-Saab et al. (eds),

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given to the HRC’s interpretation. This does not mean that the ICJ is
consistent in terms of its willingness to substantively engage with UN
human rights treaty-monitoring bodies. In the Obligation to Prosecute or
Extradite (Belgium v. Senegal) case (2012), the ICJ took a rather dismis-
sive attitude towards the CAT’s treaty interpretation.15
Methodologically, it is hard to assess the extent to which treaty body
findings alter domestic legal practices. The international bodies’ inter-
pretation can influence legal discourse indirectly and over a long period
of time. That said, one form of assessment is to measure the level of
compliance. Some treaty-monitoring bodies indicate the level of satis-
factory follow-up by states parties to the outcomes of individual com-
munications. For example, the CAT’s report of May 2017 shows that
42 per cent of its communications (55 out of 131), in which the CAT
found violations, resulted in satisfactory or partially satisfactory
outcomes.16
Yet this chapter’s focus is not on assessing general rates of compliance.
Instead, the chapter analyses the explicit reference to treaty body findings
in judicial reasoning. The cases I examine are therefore inclusive of, but
not limited to, the case-specific responses to Views. This wider coverage
is appropriate and necessary, precisely because the chapter’s focus is on
the judiciary, as opposed to other branches of the government. As
I further explain in Section 6.3, domestic courts play a relatively limited
role in providing case-specific responses to Views. The principle of res
judicata often prevents judges from reopening cases at the domestic level.
National courts may be able to give effect to Views if there are any
relevant pieces of domestic law that allow judges to reopen a case.17
Illustrative in this regard is a Norwegian example. By the Act of 15 June
2001 No. 63 which amended the Criminal Procedure and the Civil
Procedure Acts, Norway allowed the reopening of cases following the

Evolutionary Interpretation and International Law (Hart Publishing, 2019) p. 77–90, at

p. 84.
15
Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment of 20 July 2012,
[2012] ICJ Reports 422, para. 101. Cf. separate opinion of Judge Cançado Trindade at
551–2, paras 161–5.
16
CAT, ‘Report of the Committee against Torture, Fifty-eighth session (25 July–12 August
2016), Fifty-ninth session (7 November–7 December 2016), Sixtieth session (18 April–12
May 2017)’ (2017) UN Doc. A/72/44, para. 87.
17
See R. van Alebeek and A. Nollkaemper, ‘The Legal Status of Decisions by Human Rights
Treaty Bodies in National Law’, in H. Keller and G. Ulfstein (eds), UN Human Rights
Treaty Bodies: Law and Legitimacy (Cambridge University Press, 2012) pp. 356–413, at
pp. 360–82.

6.3 Judicial Non-engagement

6.3.1 Domestic Courts’ Practices
As noted in Section 6.2, while the monitoring bodies adopt a number of
general and country-specific findings, their practical relevance ultim-
ately relies upon domestic acceptance. While it is methodologically
challenging to have an overview of the practices of national courts’
engagement with the monitoring bodies, the analysis of judicial deci-
sions I have conducted21 provides some ideas about the patterns of
engagement. To begin with, the pronouncement of the monitoring
bodies has not been used as an independent and free-standing basis
for the final decisions of domestic courts. Namely, Views, and much less
General Comments and Concluding Observations, do not serve as the
basis on which domestic courts decide the wrongfulness of acts or the
legality of law.
In light of this, attempts to construe Views as an autonomous legal
basis for judicial decisions have met with rejection.22 Illustrative in this
regard is the Irish Supreme Court’s decision in Kavanagh v. Governor of
Mountjoy Prison (2002),23 forming a part of the case-specific response to
the HRC’s Views in which Ireland was found in breach of Article 26 of

18
UNHRC, ‘Consideration of Reports Submitted by States Parties under the Covenant,
Fifth Periodic Report, Norway’ (3 December 2004) CPR/C/NOR/2004/5, para. 157. See
also para. 158 (establishment of the Criminal Cases Review Commission to assist
petitioners).
19
UNHRC, ‘Concluding Observation of the Human Rights Committee, Norway’ (25 April
2006) CCPR/C/NOR/CO/5, para. 3(b) (establishment of the Commission to assist
petitioners).
20
See, e.g., X v. Council of Ministers, Appeal judgment ILDC 2520 (ES 2015), ROJ: STS 507/
2015, ECLI: ES:TS:2015:507 (Spain, Supreme Court, Administrative Chamber, 6 February
2015) paras 41–5 (OUP page numbers).
21
See n. 1 above.
22
See nn. 17–19 and accompanying text on the principle of res judicata and the need for
speciﬁc pieces of legislation.
23
Kavanagh v. Governor of Mountjoy Prison [2002] 3 IR 97; 132 ILR 380 (Ireland, Supreme
Court, 1 March 2002) 404.

24
UNHRC, Kavanagh v. Ireland (No.1), Views, Communication No. 819/1998, CCPR/C/
71/D/819/1998, adopted 4 April 2001, paras 10.3 and 11.
25
Kavanagh v. Governor of Mountjoy Prison, 404 (referring to Article 34.1 of the Irish
Constitution).
26
Ibid.
27
Wilson v. Ermita and ors, Petition for mandamus, GR No 189220, ILDC 3005 (PH 2016)
(Philippines, Supreme Court, 7 December 2016).
28
Ibid., paras 3–6 (paragraph numbers added by Oxford University Press (OUP)).
29
UNHRC, Albert Wilson v. The Philippines, Views, Communication No. 868/1999, CCPR/
C/79/D/868/1999 (11 November 2003).
30
Ibid., paras 7.3–8 (violations of Articles 7, 9(1)–(3), 10(1)–(2)).
31
Ibid., para. 9.
32
Wilson v. Ermita, para. 17 (OUP numbers).
33
Ibid., paras 32–3 (OUP numbers). The Court’s view on the domestic effect of the ICCPR
seems inconsistent with the Court’s own jurisprudence: see E. K. P. Aguilan, ‘Analysis:
ILDC 3005 (PH 2016)’ (2019), para. A3.
34
Wilson v. Ermita, para. 34 (OUP numbers).

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The court’s conclusion in Wilson v. Ermita is nothing new.
Noteworthy still, however, is that the Supreme Court of the Philippines
invoked the HRC’s General Comment No. 33 in the course of denying
the applicability of Views to case-specific judicial responses. In General
Comment No. 33 (advanced unedited version of November 2008), the
HRC regarded its Views as exhibiting ‘some important characteristics of
a judicial decision’.35 The Supreme Court quoted this phrase, observing
that the HRC’s Views ‘only displays “important characteristics of a
judicial decision”’.36 According to the court, the Views are thus ‘mere
recommendations to guide the State it is issued against’.37 While the
Supreme Court of the Philippines at least engaged with the narrative of
General Comment No. 33, the court’s use of the finding was rather ironic.
Judges used it in order to dismiss, as opposed to augment, the judicial
relevance of the Views of the HRC.
These examples again remind us of the structurally limited role of the
judiciary in providing case-specific follow-up.38 Yet even outside case-
specific circumstances, some domestic courts have much more ‘distanced
relations’39 with UN treaty-monitoring bodies and have taken a dismissive
attitude towards the relevance of their treaty interpretation.40 In some
countries, judicial narrative accommodates little or no reference to treaty
body findings. While the International Law Association’s (ILA) Committee
on International Human Rights Law and Practice (1997–2008) conducted
extensive studies on judicial practices, the study could not specifically
identify judicial references to the monitoring bodies in, among others,
the countries of Francophone Africa or the Arab region. According to
the 2004 Berlin report of the ILA Committee, there were no identifiable
judicial practices in Bulgaria, Jordan, Egypt, Saudi Arabia, Colombia,
Ecuador, Chile, Argentina, Malaysia, Singapore or Brunei.41 The absence

35
UNHRC, ‘General Comment No. 33: The Obligations of States Parties under the
Optional Protocol’ (Advance unedited version, 5 November 2008) CCPR/C/GC/33,
para. 11.
36
Wilson v. Ermita, para. 35 (OUP numbers) (emphasis added).
37
Ibid. Any responses to such recommendations are a matter to be determined by the
legislative and executive branches of the government, the Supreme Court added – see
para. 36 (OUP numbers).
38
See nn. 17–19 and accompanying text.
39
See Chapter 1.
40
Kanetake, ‘UN Human Rights Treaty Monitoring Bodies before Domestic Courts’, 226–7.
41
ILA, Committee on International Human Rights Law and Practice, ‘Final Report on the
Impact of Findings of the United Nations Human Rights Treaty Bodies’ (2004) para. 29,
ft 28.

6.3.2 International Legal Justiﬁcation for Non-engagement

There are, no doubt, country-specific backgrounds that sustain and
justify no or very limited judicial engagement with the findings of the
monitoring bodies.43 Judges’ strong loyalty to the separation of powers,
for instance, may sustain distanced relations with formally non-binding
international documents.44 What should be remembered, however, is
that non-engagement can be explained and justified, not only by domes-
tic specificities, but also by international law. A regularly invoked ground
in this regard is the formalistic narrative that treaty body findings lack
legal binding force. As a matter of formal status, it is hard to deny that
Views themselves are not binding under international law.45 States gen-
erally consider that the HRC’s Views, as well as interim measures, are
non-binding under international law.46 The lack of binding force is even
more evident with regard to General Comments and Concluding
Observations.
The legal status of the findings themselves does not speak of the status
of the content of the committees’ findings. States, and indirectly their
courts, are obliged to give effect to the substance of the findings of the
treaty-monitoring bodies, if it reflects established treaty obligations. The
content of General Comments and Views may reflect ‘subsequent prac-
tice in the application of the treaty which establishes the agreement of the

42
S. El Boudouhi and G. Dannenberg, ‘France: Implementation of International Human
Rights Decisions in France’, in S. Kadelbach, T. Rensmann and E. Rieter (eds), Judging
International Human Rights (Springer International Publishing, 2019) pp. 453–70, at
p. 466.
43
Kanetake, ‘UN Human Rights Treaty Monitoring Bodies before Domestic Courts’,
228–30.
44
Ibid., 229–30.
45
See, e.g., ‘Report of the International Law Commission, Seventieth Session (30 April–1
June and 2 July–10 August 2018)’ (2018) UN GAOR, 73rd Sess., Supp. No. 10, UN Doc.
A/73/10, 109, para. 7, fn 614; C. Tomuschat, ‘Human Rights Committee’, in R. Wolfrum
(ed.), The Max Planck Encyclopedia of Public International Law (Oxford University Press,
2010), para. 14.
46
See van Alebeek and Nollkaemper, ‘The Legal Status of Decisions by Human Rights
Treaty Bodies’, pp. 372–3, pp. 385–90.

47
Vienna Convention on the Law of Treaties, 23 May 1969, in force 27 January 1980,
1155 UNTS 311, Article 31(3)(b).
48
ILA, ‘Final Report on the Impact of Findings’ (2004), para. 21; G. Ulfstein, ‘Individual
Complaints’, in H. Keller, G. Ulfstein and L. Grover (eds), UN Human Rights Treaty
Bodies: Law and Legitimacy (Cambridge University Press, 2012) pp. 73–115, at
pp. 97–100.
49
‘Text of the Draft Conclusions on Subsequent Agreements and Subsequent Practice in
Relation to the Interpretation of Treaties’, see ‘Report of the International Law
Commission, Seventieth Session’, 12–16.
50
‘Report of the International Law Commission, Seventieth Session’ above, 106
(Conclusion 13).
51
Ibid., 106 (Conclusion 13.3).
52
Ibid., 106 (Conclusion 13.2).
53
Ibid., 113, para. 19 (commentary regarding Conclusion 13.3).

6.4 Judicial Engagement

6.4.1 Domestic Courts’ Practices
While the lack of legally binding force may serve as a justification for
non-engagement, some other domestic courts have shown greater will-
ingness to refer explicitly to treaty body findings. General Comments,
Concluding Observations and Views can be invoked to interpret the
terms of relevant human rights treaties, which may ultimately be used
to inform the construction of domestic (constitutional) provisions
regarding fundamental rights. Admittedly, judges tend to be less hesitant
in referring to treaty body findings in such countries as Canada, the UK,
New Zealand and possibly some other common law countries.54 Yet
judicial proximity to treaty body findings is by no means limited to
jurisdictions with common law traditions.
There are abundant examples of judicial interpretive engagement.55
Among many others, for instance, the Israeli Supreme Court in Kav
Laoved v. Interior Ministry (2011), in denying the constitutionality of
the country’s work permit procedure designed for female migrant
workers, consulted the CEDAW’s General Recommendations 21 (on
equality in marriage and family relations) and 26 (on women migrant
workers), as well as the CERD’s General Recommendation 30 (on dis-
crimination against non-citizens).56 Likewise, the Israeli Supreme Court
in Adam v. Knesset (2014) invoked the Views of the HRC in order to

54
Kanetake, ‘UN Human Rights Treaty Monitoring Bodies before Domestic Courts’, 226.
55
Ibid.
56
‘Kav LaOved’ – Worker’s Hotline and ors v. Ministry of Interior and ors, Original petition
to the High Court of Justice, HCJ 11437/05, ILDC 2181 (IL 2011) (13 April 2011) (Israel,
Supreme Court as High Court of Justice), paras H3–H4 (ILDC paragraph numbers). See
CEDAW, ‘General Recommendation No. 21: Equality in Marriage and Family Relations’
(1994) UN Doc. A/49/38; CEDAW, ‘General Recommendation No. 26 on Women
Migrant Workers’ (5 December 2008) CEDAW/C/2009/WP.1/R; CERD, ‘General
Recommendation 30 on Discrimination against Non-citizens’ (2004) UN Doc. A/59/
18, 93.

57
HCJ Infiltrators Case, Adam and Ors v. The Knesset and Ors, Original petition to the High
Court of Justice, HCJ 7146/12, ILDC 2078 (IL 2013), 16 September 2013 (Israel, Supreme
Court), paras H5–H6 (ILDC report by Nita Benoliel); Y. Shany, ‘Israel’, in F. M.
Palombino (ed.), Duelling for Supremacy: International Law vs. National Fundamental
Principles (Cambridge University Press, 2019) p. 167–83, at pp. 177–8.
58
Iliafi and Others v. The Church of Jesus Christ of Latter-Day Saints Australia [2014]
FCAFC 26 (19 March 2014) (Federal Court of Australia), paras 62–4; CERD, ‘General
Recommendation 20: The Guarantee of Human Rights Free from Racial Discrimination’
(1996) UN Doc. A/51/18 (1996), annex VIII, 124.
59
Iliafi, paras 66–7, 85, 96–9, 103; HRC, ‘General Comment No. 22 (Art. 18)’ (27 September
1993) CCPR/C/21/Rev.1/Add.4; HRC, ‘General Comment No. 23: The Rights of
Minorities (Article 27)’ (26 April 1994) CCPR/C/21/Rev.1/Add.5.
60
E.g., Iliafi, paras 100–1.
61
International Convention on the Elimination of All Forms of Racial Discrimination,
21 December 1965, 660 UNTS 195, Art 5; International Covenant on Civil and Political
Rights, 16 December 1966, 999 UNTS 171, Articles 18, 27.
62
Racial Discrimination Act 1975 (Australia), Act No. 52 of 1975 (11 June 1975), section 9.
63
Iliafi, para. 62.
64
Diallo, para. 66.

65
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, 10 December 1984, 1465 UNTS 85, Art. 14(1). See Kanetake, ‘UN Human
Rights Treaty Monitoring Bodies before Domestic Courts’, 212–13.
66
See, e.g., CAT, ‘General Comment No. 3 (2012): Implementation of Article 14 by States
Parties’ (13 December 2012) CAT/C/GC/3, para. 22.
67
The CAT made it clear in its Concluding Observations addressed to Canada: CAT,
‘Concluding Observations of the Committee against Torture: Canada’ (25 June 2012)
CAT/C/CAN/CO/6, para. 15; CAT, ‘Concluding Observations on the Seventh Periodic
Report of Canada’ (21 December 2018) CAT/C/CAN/CO/7, para. 41.
68
Jones v. Saudi Arabia [2006] UKHL 26; (2007) 1 AC 270 (UK, House of Lords,
14 June 2006).
69
Ibid., para. 23 (Lord Bingham).
70
Ibid., para. 57 (Lord Hoffmann). See also Jones and Others v. The United Kingdom, App.
Nos. 34356/06 and 40528/06, Judgment of 14 January 2014, para. 208 (disagreeing with
the CAT’s interpretation).
71
Kazemi (Estate) v. Islamic Republic of Iran 2014 SCC 62, [2014] 3 S.C.R. 176 (Canada,
Supreme Court, Judgment of 10 October 2014), para. 148.
72
Ibid., para. 148.
73
Suresh v. Canada, (2002) 208 DLR (4th) 1 (2002) 124 ILR 343 (Canada, Supreme Court,
11 January 2002), para. 73; Kanetake, ‘UN Human Rights Treaty Monitoring Bodies
before Domestic Courts’, 211.

6.4.2 Normative Pathway: Authorization to Consider

Domestic courts’ discretionary reference to treaty body findings is no
doubt conditioned by domestic sociological and legal contexts. At the
same time, it must be once again noted that international law also
explains and justifies domestic courts’ discretionary engagement.
Namely, states, and indirectly their courts, may consider the findings of
UN human rights treaty-monitoring bodies as part of ‘supplementary
means of interpretation’ under Article 32 of the Vienna Convention on
the Law of Treaties.79
In fact, Article 32 of the Vienna Convention on the Law of Treaties has
been mentioned by domestic courts in consulting treaty body findings.
For example, in Minister for Immigration and Citizenship v. Anochie

74
Kazemi (2014), para. 147.
75
Ibid., para. 148.
76
Ibid.
77
Ibid., para. 224 (Justice Abella in dissent, agreeing with the Canadian Bar Association’s
remark).
78
Ibid., para. 226 (Justice Abella in dissent).
79
E.g., Y. Iwasawa, ‘Domestic Application of International Law’ (2016) 378 Recueil des
Cours 236–7 (regarding Japanese courts’ practices); Kanetake, ‘UN Human Rights Treaty
Monitoring Bodies Before Domestic Courts’, 220–1.

80
Minister for Immigration and Citizenship v. Anochie and Another [2012] FCA 1440,
(2012) 209 FCR 497 (Australia, Federal Court, 18 December 2012). The subsequent
decision did not refer to the Committee’s ﬁndings: Anochie v. Minister for Immigration
and Citizenship [2013] AATA 391 (Australia, Administrative Appeals Tribunal,
12 June 2013).
81
UNHRC, ‘General Comment No. 15: The Position of Aliens under the Covenant’ (11
April 1986) HRI/GEN/1/Rev.9 (Vol. I); HRC, ‘General Comment No. 31: Nature of the
General Legal Obligation Imposed on States Parties to the Covenant’ (29 March 2004)
CCPR/C/21/Rev.1/Add.13.
82
Anochie, paras 40–50.
83
Ibid., para. 45.
84
Ibid., paras 45–6.
85
ICCPR, Article 40(4).
86
Optional Protocol to the International Covenant on Civil and Political Rights,
16 December 1966, 999 UNTS 302, Article 1. The Federal Court also noted the fact that
the HRC’s Views are forwarded to the individual and the state party concerned, according
to Article 5(4) of the Optional Protocol.
87
Anochie, para. 48. This is based on the Federal Court’s earlier case: Minister for
Immigration and Multicultural and Indigenous Affairs v. Al Masri (2003) 126 FCR 54,
para. 148.
88
Ibid., para. 49.

6.5 Beyond Discretionary Judicial Engagement

6.5.1 Domestic Courts’ Practices
As noted in Section 6.4, states, and indirectly their courts, are authorized
under international law to consider the findings of UN human rights
treaty-monitoring bodies. At the same time, the survey of domestic court
decisions92 indicates the existence of normative expectations beyond
mere discretionary consideration. Some courts referred to a normative
expectation to consider, both in and outside the context of case-specific
responses to Views on individual communications.
For instance, in the Jamaican case of Lewis (2000),93 the Judicial
Committee of the Privy Council observed that the HRC’s Views should
be considered in case-specific contexts. The Lewis case involved appel-
lants who had been sentenced to death by the Jamaican courts and had
petitioned the HRC. According to the Privy Council, ‘[w]hen the report
of the international human rights bodies is available that should be
considered and if the Jamaican Privy Council do [sic] not accept it [then]
they should explain why’.94 This observation is significant, in that the
Privy Council found it necessary, not merely to consider Views, but also
to provide explanation in case of disagreement. The Dutch
Administrative High Court in its decision of July 2006 seems to have
given an even stronger assertion in favour of Views. The Court regarded

89
ICCPR, Article 28(2).
90
Anochie, para. 49.
91
Ibid. See n. 64 and accompanying text.
92
See n. 1 on the scope of the research on which the chapter is based.
93
Lewis v. Attorney General of Jamaica (2000) 134 ILR 615 (Jamaica, Judicial Committee of
the Privy Council, 12 September 2000).
94
Ibid., 635.

95
Appellante v. de Raad van Bestuur van de Sociale Verzekeringsbank, 21 July 2006, LJN:
AY5560 (the Netherlands, Central Appeals Tribunal); cited in van Alebeek and
Nollkaemper, ‘The Legal Status of Decisions by Human Rights Treaty Bodies’, p. 402,
fn 199.
96
See nn. 17–19 and accompanying text on the principle of res judicata. In this vein, see,
e.g., X v. Council of Ministers, paras 41, 43 (OUP numbers).
97
Decision No T-025 of 2004 (2004) (Constitutional Court, Colombia, 22 January 2004,
English translation www.brookings.edu), para. 8.3.2 (‘como intérprete autorizado del
Pacto sobre la materia’).
98
Test Trial Fund Clara Wichmann (Stichting Proefprocessenfonds Clara Wichmann) and
Ors v. Netherlands, First instance decision (2005) HA ZA 03/3395, LJN: AU2088, ILDC
221 (NL 2005) (the Netherlands, District Court, 7 September 2005), para. 3.18.
99
Cal v. Attorney-General (2007) 71 WIR 110; 135 ILR 77 (Belize, Supreme Court,
18 October 2007), para. 125.
100
German Federal Constitutional Court (BVerfG), Order of the First Senate of 26 July 2016,
1 BvL 8/15 (English translation www.bverfg.de/e/ls20160726_1bvl000815en.html).

6.5.2 Normative Pathway: An Obligation to Consider

and Its Variations
The aforementioned judicial narratives – such as those in Test Trial Fund
Clara Wichmann in the Netherlands, Cal in Belize and the Order of 26 July
2016 in Germany – are nuanced. By no means do they elucidate an
obligation to consider or give due consideration to certain types of ﬁnd-
ings. Yet the courts’ nuanced position ought to be understood in light of
some of the limitations extant at the national level for domestic courts vis-
à-vis legislative and executive bodies.105 Normative expectations expressed
by judges cannot be separate from a contested obligation to consider,
incumbent on states parties themselves. In discussing such an obligation,
it is necessary to distinguish different types of treaty body ﬁndings.

101
CRPD, ‘General Comment No. 1 (2014), Article 12: Equal Recognition Before the Law’
(19 May 2014) CRPD/C/GC/1, para. 26; CRPD, ‘Concluding Observations on the Initial
Report of Germany’ (13 May 2015) CRPD/C/DEU/CO/1, paras 25–6; CRPD,
‘Guidelines on Article 14 of the Convention on the Rights of Persons with Disabilities:
The Right to Liberty and Security of Persons with Disabilities’ (September 2015), paras
11–12.
102
German Federal Constitutional Court, 1 BvL 8/15, para. 91.
103
Ibid., para. 90.
104
Ibid., para. 90.
105
See nn. 17–19 and accompanying text.

106
Optional Protocol to the Convention on the Elimination of All Forms of Discrimination
against Women, 6 October 1999, 2131 UNTS 83, Article 7(4).
107
Optional Protocol to the International Covenant on Economic, Social and Cultural
Rights, 10 December 2008, UN Doc. A/63/435, Article 9(2).
108
Optional Protocol to the Convention on the Rights of the Child on a communications
procedure, 19 December 2011, UN Doc. A/RES/66/138, Article 11(1).
109
Optional Protocol to the ICCPR (n 86).
110
VCLT, Article 26.
111
See R. Kolb, Good Faith in International Law (Hart Publishing, 2017), pp. 166–9.
112
UNHRC, ‘General Comment No. 33: The Obligations of States Parties under the
Optional Protocol’ (25 June 2009) CCPR/C/GC/33, para. 15. Cf. UNHRC, ‘Draft
General Comment No 33 (Second Revised Version as of 18 August 2008)’ (25 August
2008) CCPR/C/GC/33/CRP.3, para. 16.
113
S. Joseph, ‘Committees: Human Rights Bodies’, in R. Wolfrum (ed.), The Max Planck
Encyclopedia of Public International Law (Oxford University Press, 2010), para. 9.

114
See van Alebeek and Nollkaemper, ‘The Legal Status of Decisions by Human Rights
Treaty Bodies’, p. 386.
115
UNHRC, Erlingur Sveinn Haraldsson and Örn Snævar Sveinsson v. Iceland,
Communication No. 1306/2004, CCPR/C/91/D/1306/2004 (14 December 2007). The
communication concerned discrimination in the business of commercial ﬁshing quotas.
See G. Gauksdottir and T. Ingadottir, ‘Compliance with the Views of the UN Human
Rights Committee and the Judgments of the European Court of Human Rights in
Iceland’, in A. Eide, J. T. Möller and I. Ziemele (eds), Making Peoples Heard: Essays
on Human Rights in Honour of Gudmundur Alfredsson (Nijhoff, 2011) pp. 511–36, at
pp. 526–9.
116
Letter from the government of Iceland concerning the Views adopted by the Human
Rights Committee on 24 October 2007, cited in Gauksdottir and Ingadottir, ‘Compliance
with the Views of the UN Human Rights Committee’, pp. 530–1.
117
Ibid., p. 531.
118
Ibid., p. 531.
119
Ibid. Iceland’s readiness to review its system has led the HRC to close the follow-up
examination of the case: ‘Report of the Human Rights Committee, Volume I, 103rd
Session (17 October–4 November 2011), 104th Session (12–30 March 2012)’, (2012) UN
Doc. A/67/40 (Vol. I), at 114–15 (with a ﬁnding of a partly satisfactory implementation
of the recommendation).

6.5.2.2 Outside Case-Speciﬁc Responses

It has been further argued that the obligation to consider is not limited
to states’ case-speciﬁc follow-up to the Views addressed to them. In the

120
Tomuschat, ‘Human Rights Committee’, para. 14.
121
Ibid.
122
Ibid.
123
European Commission for Democracy through Law (Venice Commission), ‘Report on
the Implementation of International Human Rights Treaties in Domestic Law and the
Role of Courts’ adopted by the Venice Commission at its 100th plenary session (Rome,
10–11 October 2014), CDL-AD(2014)036 (8 December 2014), para. 78.
124
Christian Tomuschat, Human Rights: Between Idealism and Realism (Oxford University
Press, 2014), p. 267.
125
Ibid.
126
Tangiora v. Wellington District Legal Services Committee (1999) [2000] 1 WLR 240;
124 ILR 570 (New Zealand, Judicial Committee of the Privy Council, 4 October 1999).
127
Ibid., 575.
128
Ibid.

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  
commentary to its draft conclusions adopted in 2018, the ILC acknow-
ledge that ‘State parties may have an obligation, under a duty to cooper-
ate under certain treaties, to take into account and to react to a
pronouncement of an expert treaty body’129 where the pronouncement
is ‘specifically addressed to them or to individual communications
regarding their own conduct’.130 The ILC’s commentary signals that
the dual obligations to consider and react may be applicable, not only
to Views, but also to Concluding Observations addressed to a specific
state party. The 2016 Final Report of the ILA International Human
Rights Law Committee may have even gone beyond the ILC’s suggestion.
According to the Final Report, the ‘jurisprudence’ developed by human
rights bodies ‘constitutes res interpretata within the treaty system
accepted by the state’.131 On this basis, the ILA’s Final Report observed
that domestic courts implement the good faith obligation by ‘giving
serious consideration’ to the decisions of human rights bodies.132 The
ILA’s Final Report indicated that the treaty bodies’ ‘jurisprudence’ – and
not necessarily limited to Views in case-specific follow-up – ought to be
considered seriously.
It seems plausible to argue that states parties’ obligation to cooperate
with the committees, based on the obligation to perform a treaty in good
faith,133 is applicable to Concluding Observations as they are addressed
to specific states. One cannot be certain, however, whether this obligation
is applicable to General Comments. Further contested is whether the
presumption of substantive correctness applies to findings outside case-
specific follow-up to Views. In para. 66 of Diallo, the ICJ was prepared to
accord ‘great weight’ to the HRC’s ‘interpretation’ or ‘jurisprudence’ in
general.134 Interestingly, the ICJ’s justification for doing so was not only
because the Committee is the ‘independent body that was established
specifically to supervise the application of that treaty [i.e. the ICCPR]’.135

129
‘Report of the International Law Commission, Seventieth Session’ above, p. 113, para. 19
(commentary regarding Conclusion 13.3) (emphasis added).
130
Ibid. (emphasis added).
131
S. Kadelbach, ‘The Domestic Implementation of Judgments/Decisions of Courts and
Other International Bodies That Involve International Human Rights Law: Final Report
of the ILA International Human Rights Law Committee (Part 2)’, in S. Kadelbach, T.
Rensmann and E. Rieter (eds), Judging International Human Rights (Springer
International Publishing, 2019) pp. 51–100, at pp. 70–1.
132
Ibid., p. 71.
133
See nn. 110–113 and accompanying text.
134
See Diallo, para. 66.
135
See ibid.

6.6 Engagement and Acceptance

6.6.1 Domestic Courts’ Practices
In contrast with the nuanced engagement of domestic courts with UN
human rights treaty-monitoring bodies, the Spanish Supreme Court in its
judgement of July 2018 (Judgment No. 1263/2018) has taken a different
and dichotomous path.137 In this exceptional yet signiﬁcant case, the
Spanish highest court established the binding character of the Views of
the CEDAW at the domestic level. The Supreme Court’s decision came
after many years of legal battles by the appellant, González Carreño.138
Having been subject to physical and psychological violence by her part-
ner, González Carreño ﬁled a number of complaints in order to bring the
abuses to the attention of the Spanish authorities.139 While local courts
took some measures to protect the appellant, they did not fully take into
account the risks that her partner could pose, not only to the appellant,
but also to her daughter, Andrea.140 In May 2002, a Spanish local court
allowed the partner, with respect to whom the appellant had obtained an
order of marital separation, to visit their daughter Andrea without
supervision.141 In April 2003, during the scheduled visit, the daughter
was shot by her father who eventually killed himself.

136
See ibid.
137
Judgment No. 1263/2018 of 17 July 2018, ROJ: STS 2747/2018, ECLI: ES:TS:2018:2747
(Tribunal Supremo [Supreme Court], Sala de lo Contencioso-Administrativo
[Contentious-Administrative Chamber]) (Spain). For detailed analysis, see M.
Kanetake, ‘María de los Ángeles González Carreño v. Ministry of Justice’ (2019) 113
American Journal of International Law 586–92.
138
For facts, see CEDAW, Angela González Carreño v. Spain, Communication No. 47/2012
(16 July 2014), paras 2.1–2.21.
139
Ibid., para. 2.5.
140
See, e.g., ibid., para. 2.12.
141
Ibid., para. 2.13.

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  
After the tragic incident, González Carreño went through a series of
domestic court proceedings, trying to prove the pecuniary liability of the
state which failed to protect her and her late daughter. From April
2004 to October 2010, her liability claims met rejection four times before
Spanish courts.142 Her constitutional claim was likewise rejected by the
Constitutional Court in April 2011.143 Having exhausted domestic rem-
edies, on 19 September 2012, González Carreño brought her petition to
the CEDAW. The Committee rendered its Views on 16 July 2014, ﬁnding
the Spanish government in violation of her Conventional rights.144
Having found a violation of the state’s obligations under the
Convention,145 the Committee recommended Spain to provide compen-
sation and conduct an exhaustive and impartial investigation.146 At the
domestic level, however, the CEDAW’s recommendations in July
2014 did not result in any changes to the situation of the appellant.
A year later, in July 2015, the CEDAW still expressed its concern about
the ‘lack of follow-up to the Committee’s views’ on the part of the state
party regarding González Carreño.147 Meanwhile, she launched a series
of new administrative and judicial proceedings, ultimately before the
Supreme Court, requesting the government to give effect to the
CEDAW’s Views.148
In its judgement of 17 July 2018, the Spanish Supreme Court regarded
the Views of the CEDAW as binding at the domestic level, ordering the
government to pay €600,000 for moral damages suffered by the appel-
lant.149 The Supreme Court reached such a conclusion on the basis of
both international and domestic laws. With regard to the international
legal basis, the Spanish court held that the Views of the CEDAW have a
‘binding/obligatory’ character.150 The court ascribed such a character to
Views, despite its acknowledgement that the CEDAW Convention does
not oblige states parties to adopt any speciﬁc procedures in order to give

142
Ibid., paras 2.18–2.20.
143
Ibid., para. 2.21.
144
Ibid., para. 10.
145
CEDAW, Angela González Carreño, para. 10 (Articles 2(a–f ), 5(a) and 16(1)(d) of the
CEDAW Convention).
146
Ibid., para. 11(a).
147
CEDAW, ‘Concluding Observations on the Combined Seventh and Eighth Periodic
Reports of Spain’ (29 July 2015) CEDAW/C/ESP/CO/7–8, paras 10–11.
148
See further Kanetake, ‘María de los Ángeles González Carreño’, 588–9.
149
Judgment No. 1263/2018 of 17 July 2018, 14.
150
Ibid., 12.

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   
effect to Views.151 The court derived the ‘binding/obligatory’ character
on the basis of Article 24 of the CEDAW Convention and Articles 7(4)
and 1 of the Optional Protocol.152
The Supreme Court’s reasoning was further supported by domestic
law. The court reiterated that the CEDAW Convention, on which the
Committee and its Views are based, forms part of the domestic legal
order under Article 96 of the Spanish Constitution.153 Pursuant to Article
10(2) of the Constitution, fundamental rights shall be interpreted in
accordance with human rights treaties ratified by Spain.154 An important
aspect of the court’s reasoning was the manner in which the court
invoked Article 9(3) of the Spanish Constitution. The provision guaran-
tees ‘the principle of legality and the normative hierarchy’, according to
which international obligations relating to the execution of the decisions
of the CEDAW form part of the Spanish internal order and enjoy a
hierarchical position above ordinary domestic law.155 On this basis, the
Supreme Court observed that the Convention and the Views ‘can and
should be a decisive element’ in proving the possible infringement of the
fundamental rights of the appellant.156 While the Supreme Court empha-
sized the particularities of the appellant’s case, the court took the position
that the CEDAW’s Views must be considered as a ‘valid basis’ for
bringing a claim concerning the pecuniary liability of the state.157
Otherwise, as articulated by the Supreme Court, the ‘absence of a specific
procedure for executing’ the Views of the Committee constitutes ‘in itself
a breach of a legal and constitutional mandate by Spain’.158
The Spanish Supreme Court’s reasoning pertains only to the
CEDAW’s Views on individual communications, and not to other
types of findings. Yet it would be good to reiterate once again that
each monitoring body engages with its own previous findings. In the
CEDAW’s Views in Angela González Carreño v. Spain, the Committee’s

151
Ibid., 12.
152
Ibid., 12.
153
See ibid., 12.
154
Ibid., 12.
155
Ibid., 12. It must be noted that international obligations are superior to ordinary
domestic law – but not above the Constitution – based on Articles 95 and 96 of the
Constitution, instead of Article 9(3) itself.
156
Ibid., 12.
157
Judgment No. 1263/2018 of 17 July 2018., 13.
158
Ibid., 13.

6.6.2 Normative Pathway: An Obligation to Comply

The Spanish Supreme Court’s identiﬁcation of the binding character of
the Views of the CEDAW resembles the draft version of the HRC’s
General Comment No. 33 concerning the general obligations of states
parties. In an early draft of what became the HRC’s General Comment
No. 33, the HRC characterized its role as an ‘authentic interpreter’ of the
Covenant162 and regarded its Views as exhibiting ‘most of the character-
istics of a judicial decision’.163 Also, in the draft version, the HRC
translated the obligation to cooperate with the Committee as entailing
‘an obligation to respect the views of the Committee in the given case’.164
The HRC is not the only body that attempted to put forward an impera-
tive tone. Within the CAT, one of its members observed that, ‘[w]hile the
Committee’s decisions were not strictly mandatory, States parties had an
obligation to comply with them in good faith’, which also justiﬁes the
CAT’s follow-up mechanism.165

159
CEDAW, ‘General Recommendation No. 19: Violence against Women’ (1992).
160
Ibid., para. 9.
161
CEDAW, Angela González Carreño, para. 10.
162
UNHRC, ‘Draft General Comment No 33’, para. 14 (‘the [an] authentic interpreter’).
See, further, Kanetake, ‘UN Human Rights Treaty Monitoring Bodies Before Domestic
Courts’, 205–6.
163
UNHRC, ‘Draft General Comment No 33’, para. 11. On differences between the
adoption of Views and judicial decision making, see, e.g., L. S. Borlini and L. Crema,
‘The Legal Status of Decisions by Human Rights Treaty Bodies: International
Supervision, Authoritative Interpretations or Mission Éducatrice?’ (2019) 18 Global
Community Yearbook of International Law and Jurisprudence, section III C.
164
Ibid., ‘Draft General Comment No 33’, para. 16.
165
CAT, ‘Thirty-Sixth Session, Summary Record of the 717th Meeting’ (1 June 2006) CAT/
C/SR.717, para. 65 (Mr. Mariño Menéndez, emphasis added). The remarks were also
endorsed by the chairperson: see para. 66 (Mr. Mavrommatis).

166
Kanetake, ‘UN Human Rights Treaty Monitoring Bodies before Domestic Courts’,
205–6.
167
UNHRC, ‘Draft General Comment No 33’, para. 14; UNHRC, ‘General Comment
No. 33’, para. 13. Regarding the distinction between authentic and authoritative inter-
pretation, see Iwasawa, ‘Domestic Application of International Law’, 239–41.
168
UNHRC, ‘Draft General Comment No 33’, para. 16.
169
PM v. Criminal Chamber of the Supreme Court, Constitutional Appeal (recurso de
amparo), ILDC 1794 (ES 2002), STC 70/2002, para. 7 of the section on legal foundations
(Spain, Constitutional Court, 3 April 2002) (‘Dictámenes no pueden constituir la
interpretación auténtica del Pacto’). The Constitutional Court’s narrative was repro-
duced by the Spanish Supreme Court in its judgment of 8 June 2015: Judgment of the
Supreme Court of 8 June 2015 (Spain, Supreme Court, Third Chamber, Contentious-
Administrative), https://supremo.vlex.es/vid/575807258.
170
Judgment No. 1263/2018 of 17 July 2018, 12; CEDAW Convention, Article 24.
171
Optional Protocol CEDAW, Article 7(4).
172
See nn. 107–108.

6.7 Conclusion
The shortcomings of human rights protection at the domestic level have
sustained the need for institutional mechanisms at the international level
that monitor and assist states’ implementation of human rights treaties.
The ten human rights treaty-monitoring bodies, within their significantly
limited resources, actively adopt general and specific findings. Each
treaty-monitoring body generates and reiterates its own interpretation
of relevant treaty obligations by cross-referencing previous findings.
Despite the accumulation of instruments adopted, the effectiveness of
treaty body findings ultimately relies on the degree to which their treaty
interpretation becomes entangled with the practice of states parties,
including their judiciary.
As illustrated by some examples discussed in this chapter, the treaty
interpretation built by UN human rights treaty-monitoring bodies has
been intertwined with the discourse of domestic court decisions. Various
courts have shown their willingness to take into account General
Comments, Concluding Observations and Views in the course of inter-
preting applicable human rights treaties and relevant domestic legal
provisions. Judges’ proximity to the international monitoring bodies
varies, depending on sociological contexts in which judges have been
situated. If UN treaty-monitoring bodies are not integrated in judges’
legal training, it may be unrealistic to expect them to see the relevance of
treaty body findings.
At the same time, a connecting point between UN treaty-monitoring
bodies and domestic courts can also be normative, at least in part. One
such normative pathway which generates ‘discursive entanglement’173 is
the obligation to consider. As illustrated in the present chapter, there are
a number of variations surrounding such an obligation, from mere
encouragement to take into account to an obligation to implement.
While normative expectations may be limited to certain types of treaty

173
See Chapter 1.

174
E.g., ‘Guidelines on the Independence and Impartiality of Members of the Human
Rights Treaty Bodies (“the Addis Ababa Guidelines”)’ (2 August 2012) UN Doc. A/67/
222 Annex I.

The Social Life of Entanglements

International Investment and Human Rights Norms in
and beyond ISDS

 

7.1 Introduction
Metaphors may be helpful tools to think about law. They may also help
us to imagine what happens when law makes its actual appearance in the
plural rather than in the singular. Consider the following statement:
[W]estbrook’s intriguing metaphor of cream poured into coffee, swirling
and billowing before blending into a homogenized liquid, is suggestive.
But this only captures part of what we should be concerned with. The
cream comes from a single outside source, it is poured from above, the
ﬂow is in one direction, and the blending is relatively harmonious; but
many of our stories of diffusion of law are more complex often involving
two or more reciprocally interacting change agents, crossing of levels, and
repression, resistance, or avoidance.1

A former judge of the International Court of Justice (ICJ) employed a

similar rhetorical device as he imagined how investment protection and
human rights norms could be brought in relation. He observed:
[O]il and water do not mix, at least not readily. Is this also true of human
rights and the protection of foreign investment-here also in the sense that
they ought to be kept apart? Some observers, or rather stakeholders, might
think so. There is, of course a way to overcome this separation: science

I am grateful to Nico Krisch for his constructive comments and criticism on earlier versions
of this work. I also thank Tomáš Morochovič for his careful editing and helpful suggestions
on this text. I gratefully acknowledge ﬁnancial support by the Swiss National Science
Foundation, which made this research possible.
1
W. Twining, ‘Diffusion and Globalization Discourse Symposium: Diffusion of Law in the
21st Century: Interaction and Inﬂuence’ (2006) 47 Harvard International Law Journal
507–16.



From a legal theory perspective, the observation of contemporary

phenomena akin to the interactions captured by these metaphors has
led to the hypothesis that, particularly in contexts of societal disagree-
ment and institutional pluralization, law has become ‘entangled’.3
International legal scholarship has diagnosed similar dynamics in
disputes over the relationship between global economic governance
and human rights.4 From this perspective, efforts to establish human
rights obligations for multinational corporations in 2003, followed by
the UN Guiding Principles in 2011 and leading to current discussions
at the UN about a new international instrument on transnational
corporations,5 may be seen as fragments belonging to a common
dynamic process of deﬁning relations between business and human
rights norms.6
To illustrate this process, this chapter investigates forms of interaction
between international investment and human rights law. As these forms
depend on the contexts in which they are construed, I focus on govern-
ance sites where actors have disagreed about the best way to order the
encounter of multiple legalities. Examining the ‘social life’ of this encoun-
ter, I seek to understand when and how ‘entangled legalities’7 emerge –
where, how and by whom have they been produced? Drawing upon the
conceptual framework of the volume, I analyse competing claims of
actors and institutions through which investment protection and human
rights norms have been brought in relation over time.
The chapter has three sections, in addition to an introduction and a
conclusion. Section 7.2 identiﬁes the rational and ideational parameters

2
B. Simma, ‘Foreign Investment Arbitration: A Place for Human Rights?’ (2011) 60
International & Comparative Law Quarterly 573–96.
3
See Chapter 1.
4
P. Alston, ‘Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply
to Petersman’ (2002) 13 European Journal of International Law 815–44; see also, in the
context of the interface between trade and environment, Chapter 8.
5
OEIGWG Chairmanship, ‘Second Revised Draft, Legally Binding Instrument to Regulate,
in International Human Rights Law, the Activities of Transnational Corporations and
Other Business Enterprises’ (6 August 2020) www.ohchr.org/Documents/HRBodies/
HRCouncil/WGTransCorp/Session6/OEIGWG_Chair-Rapporteur_second_revised_
draft_LBI_on_TNCs_and_OBEs_with_respect_to_Human_Rights.pdf.
6
N. Krisch, F. Corradini and L. Lu Reimers, ‘Order at the Margins: The Legal Construction
of Interface Conﬂicts Over Time’ (2020) 9 Global Constitutionalism 343–63.
7
See Chapter 1.

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that are likely to affect whether and how ‘forms of entanglement’8 in
international investment law have come about and developed. On the
one hand, these forms may be an effect of competing interests of actors
with unequal access to resources and knowledge to shape and organize
them. Rational actors’ attitudes towards what they represent as ‘other’
legalities may depend upon the potential gains involved in that deter-
mination. On the other hand, actors’ mindsets and the cultural setting
of investment arbitration are bound to have repercussions on how the
boundaries of international investment law and its relations with com-
peting legalities are shaped. Against this background, Section 7.3 exam-
ines how actors have actually dealt with multiple legalities, in particular
with human rights norms, in the context of investor–state dispute
settlement (ISDS) and analyses the various forms that they have gener-
ated there. As actors’ responses to multiplicity have varied considerably
in practice, the emerging picture is not coherent. When interpreting
investment treaty standards, investment adjudicators have disregarded
human rights norms in some cases, while in other cases they accorded
them some weight, but always doing so from the perspective of their
own legality. Actors’ strategic interests and ideational context may
partly account for the diversity of interpretive practices observed.
As the institutions of international investment protection face
growing challenges from national governments, academics and non-
governmental actors, linkages with human rights may be beneﬁcial to
their cause.
Section 7.4 examines similar dynamics of convergence and divergence
between legalities in contexts of international investment law reform,
where the norm of ISDS itself has become the object of acute contest-
ation. Human rights experts have articulated a mode of ordering multi-
plicity that is similar to the dominant forms of relationing observed in
foreign investment litigation. Associated as they are to a systemic vision
of order, human rights lawyers have also relied on norms of internal
hierarchy according to which different legalities have to be ‘consistent’
with human rights and the rule of law. Some of these experts went so far
as to claim that human rights norms have priority over conﬂicting
legalities.

8
See Chapter 1. For the purpose of this chapter, I use ‘entanglement’ and
‘enmeshment’ interchangeably.

7.2.1 Competing Interests

Societal actors’ interests are a ﬁrst potential determinant of entangled
legalities.15 From a rational choice perspective, international investment

9
J. Pauwelyn, ‘Rational Design or Accidental Evolution? The Emergence of International
Investment Law’, in Z. Douglas, J. Pauwelyn and J. E. Viñuales (eds), The Foundations of
International Investment Law: Bringing Theory into Practice (Oxford University Press,
2014), pp. 11–43; A. Roberts, ‘Clash of Paradigms: Actors and Analogies Shaping the
Investment Treaty System’ (2013) 107 The American Journal of International Law 45–94.
10
Z. Douglas, ‘The Hybrid Foundations of Investment Treaty Arbitration’ (2003) 74 British
Yearbook of International Law 151–289, referring to the ‘laws applicable to an investment
dispute’ at 194.
11
J. Viñuales, ‘Sources of International Investment Law: Conceptual Foundations of Unruly
Practices’, in S. Besson and J. d’Aspremont (eds), Oxford Handbook on the Sources of
International Law (Oxford University Press, 2017).
12
See Chapter 1, Section 1.4.1.
13
On this notion, see Chapter 1, Section 1.2.
14
On ISDS as a mechanism and form of global governance, see S. Schill, ‘W(h)ither
Fragmentation? On the Literature and Sociology of International Investment Law’
(2011) 22 European Journal of International Law 875–908.
15
See Chapter 1, Section 1.4.1.

16
J. Bonnitcha, L. N. S. Poulsen and M. Waibel, The Political Economy of the Investment
Treaty Regime (Oxford University Press, 2017), at 127.
17
On the competition of interests involved, see M. Sornarajah, The International Law on
Foreign Investment (Cambridge University Press, 2017), ‘Introduction’.
18
T. Schultz, Transnational Legality: Stateless Law and International Arbitration (Oxford
University Press, 2014), pp. 26–30.
19
Roberts, ‘Clash of Paradigms’, 48.
20
J. Pauwelyn, ‘The Rule of Law without the Rule of Lawyers? Why Investment Arbitrators
Are from Mars, Trade Adjudicators from Venus’ (2015) 109 American Journal of
International Law 761–805, at 782.
21
T. Schultz and C. Dupont, ‘Investment Arbitration: Promoting the Rule of Law or Over-
empowering Investors? A Quantitative Empirical Study’ (2015) 25 European Journal of
International Law 1147–68.
22
N. Tzouvala, ‘The Academic Debate about Mega-Regionals and International Lawyers:
Legalism as Critique?’ (2018) 6 London Review of International Law 189–209, at 200.

23
‘[I]nvestors will not invoke the kind of international law that may weaken their legal
position’, A. van Aaken, ‘Fragmentation of International Law: The Case of International
Investment Protection’ (2008) 17 Finnish Yearbook of International Law 91–130, at 93.
24
On the ‘strategic function of human rights references in investment arbitration’, see S.
Steininger, ‘What’s Human Rights Got To Do With It? An Empirical Analysis of Human
Rights References in Investment Arbitration’ (2018) 31 Leiden Journal of International
Law 33–58, at 45–9.
25
Pauwelyn, ‘The Rule of Law’, at 782.
26
T. Schultz, ‘Arbitral Decision-Making: Legal Realism and Law and Economics’ (2015) 6
Journal of International Dispute Settlement 231–51.
27
S. Puig, ‘Social Capital in the Arbitration Market’ (2014) 25 European Journal of
International Law 387–424, at 390.
28
M. Langford, D. Behn and R. H. Lie, ‘The Revolving Door in International Investment
Arbitration’ (2017) 20 Journal of International Economic Law 301–32.

7.2.2 Ideational Contexts

A second possible cause of entanglements is the ideational context in
which they come about. In investment arbitration, this context is shaped
by multiple factors, including actors’ ‘shared understandings’ of inter-
national investment law and their role in the ‘community of practice’
they form a part of.33 ‘Epistemic communities – that is, social groups of
professionals and academics that shape the discursive policies’34 in
investment arbitration have played a role in the formation of those
understandings,35 with possible implications for the ‘interface norms’
and practices emerging from the inside of that community of practice
and its discourse. From this perspective, situations of enmeshment may

29
T. Schultz, ‘The Ethos of Arbitration’, in T. Schultz and F. Ortino (eds), Oxford Handbook
of International Arbitration (Oxford University Press, 2020).
30
Schultz, ‘Arbitral Decision-Making’.
31
M. Langford and D. Behn, ‘Managing Backlash: The Evolving Investment Treaty
Arbitrator?’ (2018) 29 European Journal of International Law 551–80.
32
See Chapter 1, Section 1.2. See also Steininger, ‘What’s Human Rights’, at 49–50.
33
See Chapter 1, Section 1.2. On the concepts of ‘shared understanding’ and ‘communities
of practice’, see J. Brunnée and S. Toope, ‘Interactional International Law: An
Introduction’ (2011) 3 International Theory 307–18.
34
A. Bianchi, ‘Epistemic Communities in International Arbitration’, in T. Schultz and
F. Ortino (eds), The Oxford Handbook of International Arbitration (Oxford University
Press, 2020).
35
Roberts, ‘Clash of Paradigms’; E. Gaillard, ‘Sociology of International Arbitration’ (2015)
1 Arbitration International 1–17.

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     
be driven by how different actors regard international investment law, for
example by adopting primarily an international public law, commercial
arbitration or public law approach.36
Investment tribunals will often understand their role as strictly con-
ﬁned to the determination of whether foreign investors’ rights have been
violated or not. In that determination, arbitrators will see themselves
primarily as interpreters of the legal basis creating those rights (e.g. a
treaty), with implications for their room for manoeuvre to create rela-
tions with bodies of norms perceived as external. ISDS participants’
choice of ‘conceptual maps’37 is likely to impact whether and how
legalities are brought together or kept apart and with which effects.
This choice may depend upon actors’ background and projects. For
instance, investment arbitrators with knowledge in public international
law have drawn on the judgements of the ICJ, while others with experi-
ence in trade law have relied on the World Trade Organization (WTO)
jurisprudence.38 The same holds true for arbitrators emphasizing a
‘universalistic’ versus ‘particularistic’ perspective of the interaction
between ‘general international law’ and other ‘special regimes’. For
example, a former ICJ judge has situated ‘international investment law’
within ‘general international law’ in keeping with his vision about the
relationship between ‘special regimes’ within the wider ‘universe of
international law’.39 Similarly, lawyers believing in a uniﬁed ‘inter-
national legal system’ as opposed to a ‘fragmented’ one will consider
linkages between international investment and human rights law with
less hesitancy.40
However, previous sociological analysis of the ‘investment arbitration
culture’ has concluded that lawyers with a strong background in public
international law are the minority in investment arbitration settings
while the ‘commercial arbitration paradigm’ appears as the dominant

36
Roberts, ‘Clash of Paradigms’.
37
Ibid.
38
Ibid., at 55.
39
Simma, ‘Foreign Investment Arbitration’. B. Simma and J. Kill, ‘Harmonizing Investment
Protection and International Human Rights: First Steps Towards a Methodology’, in C.
Binder, U. Kriebaum, A. Reinisch and S. Wittich (eds), International Investment Law for
the 21st Century: Essays in Honour of Christoph Schreurer (Oxford University Press,
2009), pp. 679–707.
40
P.-M. Dupuy, ‘Uniﬁcation Rather than Fragmentation of International Law? The Case of
International Investment Law and Human Rights Law’, in P.-M. Dupuy, E.-U.
Petersmann and F. Francioni (eds), Human Rights in International Investment Law and
Arbitration (Oxford University Press, 2009), pp. 45–62.

7.3 Navigating Multiplicity in ISDS Practice

7.3.1 Varying Forms of Relation
As claims about human rights have begun to be heard in investment
arbitration, ISDS participants have faced the challenge of ‘navigating’

41
M. Hirsch, ‘The Sociological Dimension of International Arbitration: The Investment
Arbitration Culture’, in T. Schultz and F. Ortino (eds), Oxford Handbook of International
Arbitration (Oxford University Press, 2020).
42
Pauwelyn, ‘The Rule of Law’.
43
Puig, ‘Social Capital’, 402.
44
M. Hirsch, Invitation to the Sociology of International Law (Oxford University Press,
2015), pp. 129–55.
45
Ibid., p. 131.
46
M. Gicquello, ‘The Reform of Investor–State Dispute Settlement: Bringing the Findings of
Social Psychology into the Debate’ (2019) 10 Journal of International Dispute Settlement
561–81.
47
M. Waibel and Y. Wu, ‘Are Arbitrators Political? Evidence from International Investment
Arbitration?’ (2017) www.yanhuiwu.com/documents/arbitrator.pdf.
48
Gaillard, ‘Sociology of International Arbitration’.
49
Hirsch, Invitation to the Sociology.
50
Langford and Behn, ‘Managing Backlash’.

7.3.2 Hierarchies and Separation

Foreign investors and states have dealt with multiplicity by relying on
hierarchies, as exempliﬁed in the CMS Gas Transmission Company
case.54 The dispute arose after Argentina adopted measures to protect
the welfare of the population, including by guaranteeing access to public
services, amid an economic crisis at the end of the 1990s. At the time,
CMS, a US corporation with an investment in the gas transportation
sector of Argentina, claimed it suffered ﬁnancial losses as a result of those
exceptional measures and invoked its rights under the Argentina–United
States BIT to protect its interests through ICSID arbitration. While
Argentina and CMS disagreed over the ultimate source of authority to
decide their dispute, they both referred to norms about hierarchy to
order the relation between bodies of norms. Particularly contentious

51
See Chapter 1.
52
J. E. Alvarez, Boundaries of Investment Arbitration: The Use of Trade and European
Human Rights Law in Investor-State Disputes (Juris, 2018). Already in 1990, the AAPL
tribunal stated that an investment treaty ‘is not a self-contained closed legal system
limited to provide for substantive material rules of direct applicability, but it has to be
envisaged within a wider juridical context in which rules from other sources are inte-
grated through implied incorporation methods, or by direct reference to certain supple-
mentary rules, whether of international character or of domestic law nature’. Asian
Agricultural Products Ltd v. Republic of Sri Lanka, ICSID Case No ARB/87//3, Award,
27 June 1990, 21.
53
Steininger, ‘What’s Human Rights’; Alvarez, Boundaries of Investment Arbitration.
54
CMS Gas Transmission Co v. Argentine Republic, ICSID Case No. ARB/01/8, Award,
12 May 2005.

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was the question of the ‘applicable law’.55 While the investor regarded the
BIT and international law as lex specialis, Argentina not only considered
its constitutional order relevant but also superior to the BIT. Drawing on
its constitution, public law and international customary rules on state of
necessity, Argentina said that obligations to safeguard constitutional
rights prevailed over its BIT commitments, including investor’s fair and
equitable treatment (FET) claims.56 Argentina situated and construed the
relation between the legalities at play within an order where constitu-
tional public law and human rights had primacy over investment treaties.
Drawing on a ‘more pragmatic and less doctrinaire’ approach and
‘taking the facts of the case and the arguments of the parties into
account’,57 the tribunal concurred with Argentina that both the inter-
national and the domestic legal orders applied to the dispute. It found ‘a
close interaction between the legislation and the regulations governing
the gas privatization, the Licence and international law, as embodied
both in the Treaty and in customary international law’.58 While the
tribunal emphasized that the multiple legalities were ‘inseparable’, it also
specified that they were to be applied ‘to the extent justified’.59 As a
consequence, the tribunal decided against Argentina that ‘while treaties
in theory could collide with the Constitution, in practice this is not very
likely’60 and ‘in this case, the tribunal does not find any such collision’
partly because ‘there is no question of affecting fundamental human
rights when considering the issues disputed by the parties’.61 The tribunal
highlighted that ‘the specific domestic legislation of Argentina and rules
of international law applied by the Tribunal will be discussed in connec-
tion with the issues contended’.62 By assigning a specific ‘role’ to domes-
tic and international law in relation to the ‘facts’ of the dispute, the
tribunal created distance between these legal orders. It insisted on
regarding the two laws as separate legal orders that could simultaneously
apply in the circumstances of the case, rather than creating a hierarchical

55
Ibid., para. 109.
56
Ibid., para. 114.
57
‘It is no longer the case of one prevailing over the other and excluding it altogether.
Rather both sources have a role to play’. Ibid., para. 116–18.
58
CMS Gas Transmission., above, para. 117.
59
Ibid., para. 117.
60
Ibid., para. 120.
61
Ibid., para. 121.
62
Ibid., para. 122.

7.3.3 Proximity and Distance

NGOs have played an important role in tying human rights and ISDS.
For example, they have highlighted conflicts between human rights and
investment protection norms, as reflected in the Glamis dispute.63 The
case was initiated by a Canadian mining company, investing in the
United States, claiming that the mandatory backfilling requirements
adopted by California violated its right of FET and of protection from
‘expropriation without compensation’, under chapter 11 of the North
American Free Trade Agreement (NAFTA).64 Indigenous communities
inhabiting the surrounding areas were affected by the investment project.
Although the United States remained silent on the relation between
NAFTA chapter 11 and Indigenous rights, representatives from the
Quechan Indian Nation situated the dispute within a wider juridical
context including the international legal framework for the protection
of Indigenous cultural heritage rights.65 They argued that the tribunal
ought to ‘be guided by’ Indigenous people’s norms when interpreting
investors’ rights to avoid an ‘arbitrary and discriminatory decision’ that
would violate ‘international law’.66 They employed the flexible interface
norm of ‘taking into account’, expressed in article 31(3)(c) of the Vienna
Convention on the Law of Treaties (VCLT), through which they weaved
together article 1105 (minimum standard of treatment), article 1110
(compensation for expropriation) of NAFTA and the rights of
Indigenous people. They also referred to the need of ensuring consistency
with ‘public international law’ within which they situated the multiple
legalities. Yet the tribunal’s interpretation of its mandate had the effect of
narrowing down the relevant laws at play, thereby creating distance from
other bodies of norms.67 Based on the understanding that its task was to
undertake a ‘case-specific arbitration with awareness of the NAFTA

63
Glamis Gold, Ltd. v. United States of America, ICSID, Award, 8 June 2009.
64
Ibid., para. 353.
65
Glamis Gold, Ltd. v. United States of America, ICSID, Non-party supplemental submis-
sion of the Quechan Indian Nation, 16 October 2006.
66
Glamis Gold, Ltd. v. United States of America, ICSID, Non-party supplemental
submission.
67
On the implications of this interpretative practice for the construction of relations with
human rights norms, see Hirsch, Invitation to the Sociology, p. 148.

68
Glamis Gold, Ltd., Award, para. 3.
69
Ibid., para. 8.
70
Ibid., para. 8.
71
Suez, Sociedad General de Aguas de Barcelona S.A., and Vivendi Universal S.A. v. The
Argentine Republic, ICSID Case No. ARB/03/19, Decision on Liability, 30 July 2010.
72
These were the Argentine–France BIT, the Argentine–Spain BIT and the Argentine–
UK BIT.
73
Suez, Decision on Liability, para. 255.
74
Centro de Estudios Legales y Sociales (‘CELS’) et al., ‘Amicus Curiae Submission in ICSID
Case No. ARB/03/19’ (2007).
75
On the background of the dispute see J. Calvert, ‘Civil Society and Investor–State Dispute
Settlement: Assessing the Social Dimensions of Investment Disputes in Latin America’
(2018) 23 New Political Economy 46–65.
76
Centro de Estudios Legales y Sociales (‘CELS’) et al., ‘Amicus Curiae’.
77
On this requirement as a type of overarching norm, see Chapter 1.
78
‘[I]n order to judge whether a treaty provision has been violated, for example the
provision on fair and equitable treatment’, the ‘Tribunal must take account of the context

7.3.4 Taking into Account

A selected integrationist perspective on the relation between investment
treaty norms and human rights was articulated in the Al-Warraq case.81
The dispute originated from criminal proceedings in absentia by
Indonesian authorities against an investor from Saudi Arabia holding
shares in an Indonesian bank. The investor brought claims against
Indonesia under a multilateral investment treaty (OIC Agreement)82
and used international human rights law to interpret its provisions.
Drawing on the ‘principle of systematic integration of international law
norms’,83 the investor brought the right to a fair trial under article 14(2)
of the International Covenant on Civil and Political Rights (ICCPR), the
UN Human Rights Committee’s General Comment 13, regional human
rights institutions’ pronouncements on ‘presumption of innocence’,84 the

in which Argentina acted and that the human right to water informs that context’. See
Suez, Decision on Liability, para. 252.
79
‘[A]rgentina is subject to both international obligations, i.e. human rights and treaty
obligation, and must respect both of them equally’. Suez, Decision on Liability, para. 262.
80
J. E. Viñuales, Foreign Investment and the Environment in International Law (Cambridge
University Press, 2012), p. 155.
81
Hesham T. M. Al Warraq v. Republic of Indonesia, ICSID, Award, 15 December 2014. For
a commentary, see L. Cotula, ‘Human Rights and Investor Obligations in Investor-State
Arbitration: Hesham Talaat M. Al-Warraq v The Republic of Indonesia, UNCITRAL
Arbitration, Final Award, 15 December 2014 (Bernardo M. Cremades, Michael Hwang,
Fali S. Nariman)’ (2016) 17 The Journal of World Investment & Trade 148–57.
82
Agreement for the Promotion, Protection and Guarantee of Investment among Member
States of The Organization of the Islamic Conference.
83
Al-Warraq, Award, para. 519.
84
The European Convention on Human Rights (ECHR), the African Commission on
Human and People’s Rights and the Inter-American Court of Human Rights.

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‘basic rights’ and the fair and equitable treatment standard under the
OIC Agreement into relation.85
The tribunal concurred with the investor that certain civil and political
rights were part of investment protection norms, but it distanced the
notion of ‘basic rights’ under the OIC Agreement from human rights
norms by highlighting the particular ‘object and purpose’ of the former
(i.e. investment promotion and protection).86 However, the tribunal
construed greater proximity between the FET standard and the norm
against ‘denial of justice’ under various human rights instruments, in
particular article 14(3) of the ICCPR. Eventually, the tribunal decided
that ‘denial of justice constitutes a clear violation of the FET standard’.87
The tribunal brought ICCPR norms and the FET standard in relation
after claiming that ‘the ICCPR is now regarded as a part of “general
international law”’, which suggests that ‘general international law’ was
used as an ‘overarching norm’ to connect ICCPR norms to the invest-
ment legal order.88 The Urbaser dispute89 between foreign investors and
Argentina, related to a concession for water and sewage services under
the terms of the Spain–Argentina BIT, partly redefined the openness of
ISDS to human rights. The question of the relation between international
investment agreements and human rights emerged in the context of a
counterclaim by Argentina seeking compensation for damages from the
investor, which affected basic human rights.90 In contrast to the Suez
dispute, investors did not consider human rights ‘irrelevant’ but dis-
tanced them through interpretive practices. The investors claimed that
human rights were duties of the state rather than of private companies
and said that Argentina was under the ‘obligations regarding the
population’s right to water, and its obligations towards international
investors’, which ought to be fulfilled ‘simultaneously’,91 reflecting the
approach of the CMS and Suez awards. The investors also drew on the
precedent of the Biloune v. Ghana dispute, in which the tribunal decided
that ‘a ruling on human rights violations is outside the scope of its

85
Al-Warraq, Award, paras 177–82.
86
Ibid., paras 519–22.
87
Ibid., para. 621.
88
On this type of interface norm, see Chapter 1. For a similar observation in the context of
international trade law, see Chapter 8.
89
Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa
v. The Argentine Republic, ICSID Case No. ARB/07/26, Award, 8 December 2016.
90
Ibid., para. 1156.
91
Ibid., para. 694.

92
‘[W]hile the acts alleged to violate the international human rights of Mr Biloune may be
relevant in considering the investment dispute under arbitration, this Tribunal lacks
jurisdiction to address, as an independent cause of action, a claim of violation of human
rights’. Antoine Biloune and Marine Drive Complex Ltd. v. Ghana Investment Centre and
the Government of Ghana, Awards of 27 October 1989 and 30 June 1990, Yearbook
Commercial Arbitration XIX (1994) p.11 (CUL-207). Cited in Urbaser., Award,
para. 1129.
93
Urbaser., Award, para. 548.
94
Ibid., para. 555.
95
Ibid., para. 1192.
96
In the Tulip case, the investor invoked art. 6 of the ECHR on the right to a fair trial.
Turkey, the respondent state, argued that the invoked provision was irrelevant in the
context of the dispute as the ECHR and the ICSID Convention belonged to two ‘different
regimes’. In the view of the Annulment Committee, human rights were relevant and ‘shall
be taken into account’ in light of Article 31(3)(c) of the ‘VCLT’. Tulip Real Estate and
Development Netherlands B.V. v. Republic of Turkey, ICSID Case no. ARB/11/28,
Decisions on Annulment, 30 December 2015, paras 86–92, where the ad hoc
Committee refers to the ‘principle of systemic integration’, stating that resort to author-
ities stemming from the ﬁeld of human rights is a ‘legitimate method of
treaty interpretation’.
97
Urbaser, Award, para. 1200.

98
Ibid., para. 1201.
99
Bear Creek Mining Corporation v. Republic of Peru, ICSID Case No. ARB/14/2, Award,
30 November 2017.
100
Ibid., paras 267–9.
101
The two organizations were the Association of Human Rights and the Environment-
Puno together with Mr. Carlos Lopez, and the Columbia Center on Sustainable
Investment (CCSI). Eventually, only the former organization was allowed to participate
as ‘other persons’ under the FTA whereas the latter’s application was rejected by the
tribunal.
102
The CCSI placed strong emphasis on legal relationships and on the relevance of the legal
context to the interpretation of the FTA. See CCSI, ‘Application to File a Written
Submission as an “Other Person” Pursuant to Article 836 and Annex 836’.
103
Bear Creek Mining Corporation v. Republic of Peru, ICSID Case No. ARB/14/2, Partial
Dissenting Opinion of Professor P. Sands, 30 November 2017, at 11.
104
Ibid., pp. 38–40.
105
I am indebted to Tomáš Morochovič for this observation.

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both statements strengthened the expectation that international
investment agreements cannot be interpreted in isolation from other
parts of the legal order.106 Claims about the primacy of human rights
over investment protection norms were formulated by the state in the
South American Silver dispute, related to an investment in mining activ-
ities in Bolivia under the terms of the United Kingdom–Bolivia BIT. The
dispute stemmed from measures adopted by Bolivia to protect
Indigenous communities inhabiting the areas surrounding the invest-
ment project. The parties to the dispute disagreed over the relation
between the BIT and international law and between the BIT and the
Bolivian national legal system. The investor deemed the BIT to be the
‘primary source of law and lex specialis, as supplemented by general
principles of law, as needed’.107 It distanced domestic law, arguing that
it did not form part of the ‘law applicable to the merits of the arbitration
proceeding’108 and contended that recourse to supplementary means to
interpret the BIT was ‘unnecessary’.109 By contrast, Bolivia demanded
that a wider body of norms be taken ‘in consideration’ when interpreting
the applicable law.110 The state said that its constitution and inter-
national norms on the protection of Indigenous rights111 were ‘supple-
mentary’ to the BIT and prevailed over norms in investment treaties in
case of conﬂict.112 The investor contested this representation, arguing
that the invoked rights could not be taken into consideration by the
tribunal since they were not binding on the United Kingdom and did not
constitute customary international law or general principles of law.113
Having identiﬁed the BIT as ‘the principal instrument’114 for resolving
the dispute, the tribunal found that the tool of ‘systemic interpretation’
under article 31(3)(c) of the VCLT is not limitless and must be applied

106
On this type of overarching norm, see Chapter 1.
107
South American Silver Limited v. Plurinational State of Bolivia, PCA Case No. 2013–15,
Award, 22 November 2018, para. 187.
108
Ibid., para.193.
109
Ibid., para. 261.
110
Ibid., para. 200.
111
Bolivia referred to the 1969 American Convention on Human Rights, the 1994 Inter-
American Convention on the Prevention, Punishment and Eradication of Violence
against Women, ILO Convention No.169, the 2007 United Nations Declaration on the
Rights of Indigenous Peoples and the Political Constitution of the Plurinational State of
Bolivia. Ibid., para. 199.
112
Ibid., para. 196.
113
Ibid., para. 190.
114
Ibid., para. 208.

7.3.5 Constrained Entanglements

The previous analysis of ISDS cases suggests that strategic, institutional
and cultural factors impacted the way actors brought international
investment law and ‘other’ legalities in relation. In a context with high
institutional barriers to access and with an unequal representation of the
interests involved, certain claims were accorded greater weight than
other, competing ones. In particular, investment arbitrators and lawyers
representing investors and states played a dominant role, whereas the
voice of other affected polities was silenced.
The ‘tension between proximity and distance’117 in investment treaty
disputes was shaped by the interplay of a limited number of actors.
Understandably, with the exception of the Al-Warraq dispute, investors
had clear incentives to keep human rights law at bay in investment
disputes. By contrast, states had stronger incentives to draw on that law
to formulate their defences. Non-disputing parties and actors not repre-
sented in ISDS – workers, Indigenous groups, poor communities – had
limited access to inform investment arbitrators’ decisions. In the Bear
Creek dispute, arbitrators denied a request for participation as amicus
curiae by one academic institution, showing little consideration for actors
other than the parties to the dispute, including disputes generating
‘public interest’.118
As a consequence, entangled legalities in ISDS have mainly reﬂected
the preferences of foreign investors, states and investment arbitrators.
From this perspective, greater participation from affected outsiders119

115
Ibid., para. 212.
116
Ibid., para. 216.
117
See Chapter 1, Section 1.4.
118
Langford and Behn, ‘Managing Backlash’.
119
E. Benvenisti, ‘Democracy Captured: The Mega-Regional Agreements and the Future of
Global Public Law’ (2016) 23 Constellations: An International Journal of Critical and
Democratic Theory 58–70.

120
Brunnée and Toope, ‘Interactional International Law’.
121
J. Alvarez, ‘“Beware: Boundary Crossings” – A Critical Appraisal of Public Law
Approaches to International Investment Law’ (2016) 17 The Journal of World
Investment & Trade 171–228.
122
R. Michaels and J. Pauwelyn, ‘Conflict of Norms or Conflict of Laws: Different
Techniques in the Fragmentation of Public International Law’ (2012) 22 Duke Journal
of Comparative & International Law 349–76.
123
On reception norms, see Chapter 1; Michaels and Pauwelyn, ‘Conflict of Norms or
Conflict of Laws’.
124
On the institutional context of ICSID, see Pauwelyn, ‘The Rule of Law’. On the ‘invest-
ment arbitration culture’, see Hirsch, ‘The Sociological Dimension’.
125
Bianchi, ‘Epistemic Communities’, 588.
126
On how different ways of thinking about law impact legal practice, see A. Bianchi,
International Law Theories: An Inquiry into Different Ways of Thinking (Oxford
University Press, 2016). On the implications of actors’ situatedness for the construction
of entanglements, see Chapter 1.

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environment that does not create strong incentives to question the
dominant schemes for thinking and practising law, much less to depart
from them. For example, these specialists have to behave in conformity
with the rules of the game of the institutional site in which they oper-
ate127 in order to pursue or maintain reputation.128 These rules include
shared presuppositions about the nature of ‘international investment
law’, its ‘sources’, institutional circumstances and the ‘rituals’129 of inter-
national arbitration. According to the recognized norms of investment
arbitration, the rules on jurisdiction, applicable laws and consent of the
parties have narrowed the space for linking bodies of norms in prac-
tice.130 For example, the doctrine of the limitation of tribunals’ jurisdic-
tion131 to ‘investment disputes’ has enabled adjudicators to create
distance between bodies of norms and strengthen the autonomy of their
legal order from the interference of competing legalities. Similarly, inter-
national investment lawyers perceive that there must be ‘legal grounds’
for tribunals to consider human rights norms.132 ISDS insiders may
benefit from the dominant mode of ordering legalities in this setting –
therefore there seem to be fewer incentives to change the status quo than
to maintain it.
In summary, the dominant interests, institutional structures and ‘legal
culture’133 in ISDS seem to have influenced the way situated actors have
ordered multiplicity in that setting. However, ultimate conclusions on the
implications of actors’ ideational context and strategic interests for the
particular forms of enmeshment observed seem premature. For example,
it is not clear whether investment arbitrators’ background had more
influence than the material incentives associated with the international
investment dispute settlement culture.134 Not only did arbitrators with
expertise in public international law decide in favour of foreign investors
in some cases, they also kept investment protection and human rights

127
Pauwelyn, ‘The Rule of Law’.
128
Schultz, ‘Arbitral Decision-Making’.
129
Gaillard, ‘Sociology of International Arbitration’.
130
On these rules, see Sornarajah, The International Law.
131
F. Balcerzak, ‘Jurisdiction of Tribunals in Investor–State Arbitration and the Issue of
Human Rights’ (2014) 29 ICSID Review 216–30.
132
F. G. Santacroce, ‘The Applicability of Human Rights Law in International Investment
Disputes’ (2019) 34 ICSID Review – Foreign Investment Law Journal 136–55.
133
Hirsch, Invitation to the Sociology, p. 146.
134
R. Howse, ‘Venus, Mars, and Brussels: Legitimacy and Dispute Settlement Culture in
Investment Law and WTO Law: A Response to Joost Pauwelyn’ (2015) 109 AJIL
Unbound 309–15.

7.4 Entangled Legalities at the Margins

7.4.1 Beyond ISDS
Thus far, I have contextualized interpretative practices through which
international investment and human rights norms have been brought in
relation in investment adjudication settings. The statements of invest-
ment arbitrators and of the lawyers representing foreign investors and
states have been given greater weight than those of other stakeholders,
partly due to the dominant interests and ideational context of investment
treaty arbitration. Civil society input has remained limited and only a few
legal specialists have been authorized to determine the relative weight of
legalities at play at that site. Yet ISDS is not, and should not be, the only
global governance site for determining relations between these legalities.
Rather, the claims of institutions and affected actors ‘at the margins’ of
that context and its discourse should also be accounted for when apprais-
ing the enmeshment of the overall order. Against the background of the
so-called ‘legitimacy crisis’ of international investment law,138 expres-
sions of contestation have encouraged a reform of investment agreements

135
For example, in the CMS dispute.
136
Howse, ‘Venus, Mars, and Brussels’.
137
J. Viñuales, ‘Foreign Investment and the Environment in International Law: Current
Trends’, in K. Miles (ed.), Research Handbook on Environment and Investment Law
(Edward Elgar, 2019), pp. 12–37.
138
Langford and Behn, ‘Managing Backlash’, 554–8.

7.4.2 Reforming Investment Agreements

At sites of treaty negotiation, states have responded to the legitimacy
crisis of international investment law by rearticulating their relation with
it through different lawmaking practices. While countries like Ecuador,
Venezuela, Argentina and Bolivia have withdrawn or intended to with-
draw from the ICSID Convention and BITs, others have amended
existing investment treaties.139 The wording of these texts indicates that
state parties have given human rights some consideration.140 Similar
references have appeared in ‘new generation international investment
agreements’, originally championed by the United States and Canada and
subsequently adopted by the EU.141 The concept of ‘governments’ right
to regulate’, included in the 2017 Colombia model BIT as well as in the
2019 Dutch Model BIT,142 has opened a space to construe connections
with states’ obligations under international human rights law.143

139
M. Langford, D. Behn and O. Fauchald, ‘Backlash and State Strategies in International
Investment Law’, in T. Aalberts and T. Gammeltoft-Hansen (eds), The Changing
Practices of International Law (Cambridge University Press, 2018), pp. 70–102.
140
The 2012 US Model BIT mentions in a relatively open-ended way the interface between
‘investment and the environment’ (art. 12) and ‘investment and labor’ (art. 13); the New
Zealand–Australia BIT, refers to the Treaty of Waitangi; the 2015 Norwegian Model BIT
refers to the Universal Declaration of Human Rights; the 2016 BIT between Morocco
and Nigeria imposes human rights obligations on investors too (art. 18). N. Zugliani,
‘Human Rights in International Investment Law: The 2016 Morocco–Nigeria Bilateral
Investment Treaty’ (2019) 68 International and Comparative Law Quarterly 761–70.
141
C. Titi, ‘International Investment Law and the European Union: Towards a New
Generation of International Investment Agreements’ (2015) 26 European Journal of
International Law 639–61.
142
Article 7(5) states: ‘[t]he Contracting Parties express their commitment to the inter-
national framework on Business and Human Rights, such as the United Nations Guiding
Principles on Business and Human Rights and the OECD Guidelines for Multinational
Enterprises, and commit to strengthen this framework’. For a commentary, see K.
Duggal and L. van de Ven, ‘The 2019 Netherlands Model BIT: Riding the New
Investment Treaty Waves’ (2019) 35 Arbitration International 343–74.
143
L. W. Mouyal, International Investment Law and the Right to Regulate: A Human Rights
Perspective (Routledge, 2016).

144
Joint Interpretative Instrument on the Comprehensive Economic and Trade Agreement
(CETA) between Canada and the European Union and Its Member States, 2017.
145
E. Meidinger, ‘TPP and Environmental Regulation’, in B. Kingsbury et al. (eds),
Megaregulation Contested (Oxford University Press, 2019), pp. 175–95.
146
Benvenisti, ‘Democracy Captured’.
147
Similarly, references to international investment law in human rights instruments
provide little guidance in this respect. Principle 9 of the UN Guiding Principles on
Business and Human Rights expects state parties to investment agreements to ‘maintain
adequate domestic policy space to meet their human rights obligations’. The
Commentary to this article is not very helpful either in its explanation that: ‘States
should ensure that they retain adequate policy and regulatory ability to protect human
rights under the terms of such agreements, while providing the necessary investor
protection.’ OHCHR, ‘Guiding Principles on Business and Human Rights:
Implementing the United Nations “Protect, Respect and Remedy” Framework’ (United
Nations, 2011).
148
S. Schill and V. Djanic, ‘International Investment Law and Community Interests’, in E.
Benvenisti and G. Nolte (eds), Community Interests Across International Law (Oxford
University Press, 2018), pp. 122–48.

7.4.3 Human Rights Claims

Similarly to the main type of interface norms construed in investment
adjudication contexts, human rights experts have approached investment
protection norms through overarching norms, which might be explained
by taking account of the ideational and institutional context in which
they operate. For example, in the Sawhoyamaxa case,150 involving a
dispute over human rights of Indigenous communities in Paraguay, the
Inter-American Court of Human Rights articulated its view of the rela-
tionship between international investment law and the Inter-American
Convention on Human Rights. Paraguay sought to justify non-
enforcement of the Indigenous people’s property rights by arguing that
the land, which had been bought by a German investor, was protected
under an investment treaty between Paraguay and Germany.151 Yet the
court regarded the Inter-American Convention as the ultimate frame of
reference and accorded it more weight than investment agreements. It
ruled that ‘the enforcement of bilateral commercial treaties [. . .] should
always be compatible with the American Convention, which is a multi-
lateral treaty on human rights that stands in a class of its own and that
generates rights for individual human beings and does not depend
entirely on reciprocity among States’.152 Under the presidency of Judge

149
Mattias Kumm has argued that one general presupposition of these actors is to favour
‘stronger, rather than weaker investor protection’. See ‘An Empire of Capital?
Transatlantic Investment Protection as the Institutionalization of Unjustiﬁed Privilege’,
Verfassungsblog (27 May 2015), https://verfassungsblog.de/an-empire-of-capital-transat
lantic-investment-protection-as-the-institutionalization-of-unjustiﬁed-privilege/.
150
Sawhoyamaxa Indigenous Community v. Paraguay, Judgment (Merits, Reparations and
Costs), 29 March 2006.
151
Ibid., para. 115.
152
Ibid., para. 140.

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     
Cançado Trindade, the court’s interpretation reflected a strong commit-
ment to human rights law.
Similarly, the Office of the United Nations High Commissioner for
Human Rights (OHCHR) has approached investment agreements
through ‘overarching norms’, reflecting a conception of order under
international law where human rights are accorded primacy.153 For
example, the former independent expert on the promotion of a demo-
cratic and equitable international order has claimed that ‘in case of
conflict, only the highest public courts can decide in the light of the
totality of international law. Until amended by States Members, the
Charter of the United Nations remains the principal treaty that deter-
mines the structure and functioning of the international order.’154
Therefore ‘[s]tates must ensure that all trade and investment agreements
recognize the primacy of human rights and specify that, in case of
conflict, human rights obligations prevail’.155 In the eyes of the independ-
ent expert, international investment norms and human rights were to be
integrated within a hierarchical form ordered through the principle of
binding character of treaties, good faith and in conformity with article
103 of the United Nations Charter.156
In its General Comment 24, the UN Committee on Economic, Social
and Cultural Rights articulated a similar hierarchical conception of order
between competing legalities.157 The Committee claimed that: ‘[s]tates
parties should identify any potential conflict between their obligations
under the Covenant and under trade or investment treaties, and refrain
from entering into such treaties where such conflicts are found to exist, as
required under the principle of the binding character of treaties’.158 The
group of experts distinguished ‘investment treaties currently in force’
from ‘future treaties’. In the first case, interpretation ‘should take into

153
See Chapter 1.
154
OHCHR, ‘Report of the Independent Expert on the Promotion of a Democratic and
Equitable International Order, Alfred-Maurice de Zayas’ (2015) UN Doc. A/HRC/30/44.
155
OHCHR, ‘Report of the Independent Expert’, 20.
156
‘[P]acta sunt servanda requires States to fulﬁl their human rights treaty obligations in
good faith and prohibits them from entering into agreements that would delay, circum-
vent, undermine or make impossible the fulﬁlment of their human rights treaty obliga-
tions’. OHCHR, ‘Report of the Independent Expert’, para. 18.
157
Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment
No. 24 (2017) on State Obligations under the International Covenant on Economic,
Social and Cultural Rights in the Context of Business Activities’ (2017), UN Doc E/C.12/
GC/24.
158
CESCR, ‘General Comment No. 24’.

159
Ibid.
160
Ibid.
161
See www.ohchr.org/Documents/Issues/Business/Forum2018CrowdDrafting.pdf.
162
‘[A] human rights-based approach to trade and investment entails considering how
States’ obligations under trade/investment law agreements might impact on their ability
to fulﬁl their human rights obligations’, see further at: www.ohchr.org/EN/Issues/
Globalization/Pages/GlobalizationIndex.aspx.
163
UNHRC, ‘Report of the Special Rapporteur on the Right to Food, Olivier De Schutter.
Addendum, Guiding Principles on Human Rights Impact Assessments of Trade and
Investment Agreements’ (2011) UN Doc. A/HRC/19/59/Add.5.
164
Columbia Center on Sustainable Development and OHCHR, ‘Impacts of the
International Investment Regime on Access to Justice’ (Roundtable outcome document,
September 2018).
165
P. Muchlinski, ‘Negotiating New Generation International Investment Agreements: New
Sustainable Development Oriented Initiatives’, in S. Hindelang and M. Krajewski (eds),
Shifting Paradigms in International Investment Law (Oxford University Press, 2016),
pp. 41–64.

7.4.4 Reforming Investment Adjudication

The effects of entangled legalities have often been located in the Global
South, in places where foreign investments affect local communities. At
these sites, often characterized by a multilayered and scattered legal
landscape where transnational and domestic bodies of norms contradict
each other,167 local populations have mobilized human rights against the
state and global capital.168 Local communities have contested the prox-
imity of investment protection norms to their domestic legal order,169
but their claims have received little consideration in investment jurispru-
dence.170 In recent years, struggles against investment protection have
become visible in the Global North, too. Particularly in Europe, citizens,
environmental activists and other political actors have used contestatory
mechanisms to distance investment treaties from their domestic legal
orders. Protests and claims of political parties and NGOs against the
intrusion of the Transatlantic Trade and Investment Partnership (TTIP),
CETA and the ISDS norm into the European legal order and the
constitutional order of EU member states have been one manifestation
of this practice of resistance.171 In this context, European institutions and
courts, too, have become important actors. The European Commission’s

166
OEIGWG Chairmanship ‘Second Revised Draft, Legally Binding Instrument’.
167
S. Randeria, ‘The State of Globalization: Legal Plurality, Overlapping Sovereignties and
Ambiguous Alliances between Civil Society and the Cunning State in India’ (2007) 24
Theory, Culture & Society 1–33.
168
B. Rajagopal, ‘The Role of Law in Counter-Hegemonic Globalization and Global Legal
Pluralism: Lessons from the Narmada Valley Struggle in India’ (2005) 18 Leiden Journal
of International Law 345–87.
169
B. Rajagopal, ‘Counter-Hegemonic International Law: Rethinking Human Rights and
Development as a Third World Strategy’ (2006) 27 Third World Quarterly 767–83.
170
There have been calls to give more attention to these ‘invisible’ actors. See N. Perrone,
‘The “Invisible” Local Communities: Foreign Investor Obligations, Inclusiveness, and
the International Investment Regime’ (2019) 113 AJIL Unbound 16–21.
171
J. Rone, ‘Contested International Agreements, Contested National Politics: How the
Radical Left and the Radical Right Opposed TTIP in Four European Countries’ (2018) 6
London Review of International Law 233–53. See also M. Kumm, ‘An Empire of
Capital?’; Legal Statement on Investment Protection and Investor–State Dispute
Settlement Mechanisms in TTIP and CETA, 2016.

172
Robert Howse has concluded that ‘a multilateral court system is best suited to offering
standing or intervention to a wide range of actors who have concerns of international
justice that relate to foreign investment’. See R. Howse, ‘International Investment Law
and Arbitration: A Conceptual Framework’ (2017) IILJ Working Paper 2017/1 MegaReg
Series 69.
173
The Court ruled that EU law precludes: ‘a provision in an international agreement
concluded between Member States [. . .] under which an investor from one of those
Member States may, in the event of a dispute concerning investments in the other
Member State, bring proceedings against the latter Member State before an arbitral
tribunal whose jurisdiction that Member State has undertaken to accept’. Judgment in
Slovak Republic v. Achmea B.V. (Case C-284/16).
174
The Court found that the international investment system is compatible with EU law.
See Opinion 1/17 of the Court (Full Court) (CETA Opinion), 30 April 2019.
175
On different states’ approaches to ISDS reform, see A. Roberts, ‘Incremental, Systemic,
and Paradigmatic Reform of Investor–State Arbitration’ (2018) 112 American Journal of
International Law 410–32.
176
OHCHR, ‘Letter to the UNCITRAL Working Group III on ISDS Reform, Urging
Systemic Changes to the ISDS System’ (7 March 2019).
177
Ibid.

7.5 Conclusion
This chapter has analysed how relations between international invest-
ment and human rights norms have been construed in multiple global
governance sites. Investment treaty arbitration has remained a central
arena where foreign investors, states, investment adjudicators and NGOs
have supplied competing forms of relation between bodies of norms,
especially when defining the law applicable to the dispute. These relations
have reflected the preferences and the ideational context of the actors
involved in their construction.
In the majority of cases examined, the claims of investment arbitrators,
investors and states have been given greater consideration than the
claims by NGOs and the public at large, limiting room for contestation.
Foreign investors have sought to narrow the scope of relevant bodies of
norms whereas states and NGOs have aimed at expanding it. Over time,
ISDS participants, and investment adjudicators in particular, have tended
to regard relations with human rights norms with less hesitancy.
Although the decisions of investment tribunals affect many constitu-
encies, possibilities for these affected outsiders to make their claims heard
in investment arbitration have been limited. Their priorities have often
been silenced in sites of investment treaty negotiation too.
The analysis has observed an evolution in the way actors have dealt
with human rights in ISDS over time, although dialectic tendencies of
proximity and distancing persist. Initially, foreign investors adopted a
clear rhetoric against the relevance of human rights in ISDS. In a second
phase, they recognized their relevance but they kept them at a distance to
downplay any potential conflict with investment protection standards. As
states began to refer to human rights norms in their defences, investment
tribunals had to find ways to articulate relations with them. The current
phase seems marked by a very limited reliance on human rights on the
part of investors and tribunals and more frequent linkages construed by

178
Ibid.
179
United Nations Commission on International Trade Law et al., ‘Possible Reform of
Investor–State Dispute Settlement (ISDS) Submission from the Government of South
Africa’ (2019) UN Doc A/CN.9/WG.III/WP.176.

International Trade Law

Legal Entanglement on the WTO’s Own Terms

  

8.1 Introduction
Ever since the inception of the contemporary globalized trade regime,
environmental concerns found their way into the regulatory system
framed by international trade law. The interaction (and tension) between
trade and environmental interests further intensified with the develop-
ment of international environmental law, and global trade was placed
under the scrutiny of two overlapping regulatory regimes which are
commonly perceived as having diverging aims and rationales.
A pronounced outlet for this relationship was found within the World
Trade Organization (WTO) system, particularly in trade disputes in
which WTO rules interacted with public policies seeking to address
environmental externalities. This chapter explores the way in which the
relationship between international trade law and norms governing envir-
onmental protection are construed from within the WTO dispute settle-
ment system. The findings shine a light on evolving forms of legal
entanglement that challenge the dominant perception of the WTO as
an insular regime prima facie hostile to international environmental law.
Surprisingly, the analysis shows that even in controversial trade environ-
ment disputes (e.g. infamously Tuna Dolphin I), all parties to the dispute
routinely refer to norms of international environmental law to make their
respective claims. With respect to the Panels and the Appellate Body, the
findings indicate that external environmental norms are allowed to
penetrate WTO law more often than commonly assumed, although such
linkages do not necessarily result in more ‘environmentally friendly’
interpretations/applications of trade law. Moreover, without centralized
coordination, WTO judicial bodies tend to construe the relationship with
outside norms in an ad hoc and discretionary way, relying on ‘interface
norms’ to invoke external rules of international environmental law on a



8.2 Trade and Environment: Resetting the Stage for an

Age-Old Debate
8.2.1 Trade and Environment: Unresolved Tensions
and Emerging Forms of Entanglement
The General Agreement on Tariffs and Trade (GATT) was signed in
1947 on the cusp of what has been dubbed the ‘Great Acceleration’, a
period of intensiﬁed human impact on the Earth that over the latter half
of the twentieth century signiﬁcantly contributed to the global environ-
mental challenges we face today.1 International environmental law was
still in its ‘early glimmers’.2 Nevertheless, the 1947 GATT already ‘recog-
nized environmental concerns in its Article XX(b) and (g) exceptions’.3
By 1994, and the founding of the WTO, the extent of human-wrought
environmental degradation had become increasingly apparent, and
international environmental law had developed and matured into its
modern incarnation of a sprawling global governance complex. Two
years prior, the United Nations Conference on Environment and
Development had taken place in Rio de Janeiro, and produced a number
of instruments, including the Rio Declaration, Agenda 21, the United
Nations Framework Convention on Climate Change (UNFCCC) and the
Convention on Biodiversity (CBD).
Notably, modern international environmental law evolved within an
international legal environment in which international trade rules were
already long established and could not be ignored. The drafters in Rio
took these existing legal structures into account by explicitly integrating
international trade norms into the new instruments. Principle 12 of the

1
W. Steffen, W. Broadgate, L. Deutsch, O. Gaffney and C. Ludwig, ‘The Trajectory of the
Anthropocene: The Great Acceleration’ (2015) 2 The Anthropocene Review 81–98.
2
E. B. Weiss, ‘The Evolution of International Environmental Law’ (2011) 54 Japanese
Yearbook of International Law 1–27, at 2.
3
Ibid., 12.

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    ’   
Rio Declaration, for example, emphasizes the importance of ‘an open
international economic system’ and states that ‘[t]rade policy measures
for environmental purposes should not constitute a means of arbitrary or
unjustiﬁable discrimination or a disguised restriction on international
trade’, which is almost a word-for-word copy of the chapeau of GATT
Article XX.4 Notably, the same wording is reproduced in Article 3(5) of
the UNFCCC.5 Thus, international environmental law was actively
entangled with the body of norms that governs the multilateral
trading system.
From within the trade law sphere, efforts at legal entanglement with
international environmental law were more tentative. While a reference
to sustainable development was included in the preamble to the
Marrakesh Agreement establishing the WTO (1994), the 1947 GATT
was incorporated wholesale into the new WTO Agreement, with no
changes or additions to the environmental provisions of the original text
indicating how WTO law should relate to international environmental
law. This was problematic because a host of new multilateral environ-
mental agreements (MEAs) had sprung up since 1947, some of which
explicitly relied on potentially GATT-inconsistent trade measures for
their implementation (e.g. the Basel Convention and the Montreal
Protocol).6 Further, the extent to which WTO rules restricted national
environmental policy space also remained unclear, particularly in rela-
tion to environmental measures targeting processing and production
methods (PPMs) and the applicability of the precautionary principle.7
The lack of relationing can be explained by GATT signatories’ diver-
ging interests with regard to trade and environment concerns at the time
(and still prevailing today). While developed countries supported the
integration of environmental standards into international trade policy
to counter ‘environmental dumping’, developing countries resisted,
fearing market access restrictions due to ‘green protectionism’.8 Thus, a
meaningful debate for greater integration of environmental concerns
within the trade regime was ‘out of the question’. Politically, the

4
United Nations Conference on Environment and Development, ‘Rio Declaration on
Environment and Development’ (New York, 1992), Principle 12.
5
UNEP, ‘United Nations Framework Convention on Climate Change (UNFCCC)’ (1992).
6
A. Tancredi, ‘Trade and Inter-Legality’, in J. Klabbers and G. Palombella (eds), The
Challenge of Inter-legality (Cambridge University Press, 2019), pp. 158–87, at p. 159.
7
T. Santarius, H. Dalkmann, M. Steigenberger and K. Vogelpohl, ‘Balancing Trade and
Environment: An Ecological Reform of the WTO’, Wuppertal Papers (2004), p. 63.
8
Ibid., p. 10.

8.2.2 The Question of Insularity

According to the provisions of the Dispute Settlement Understanding
(DSU) the WTO dispute settlement mechanism ‘has exclusive [as well as
compulsory and quasi-automatic] jurisdiction to resolve disputes arising
from violations of the WTO covered agreements’.12 The WTO Dispute
Settlement Body (DSB) in particular has ‘the authority to establish
panels, adopt panel and Appellate Body reports, maintain surveillance
of implementation of rulings and recommendations, and authorize sus-
pension of concessions and other obligations under the covered agree-
ments’.13 Without a centralized mechanism for resolving international
trade and environment conﬂicts, nor a specialized environmental court,
the DSB has become central to coordinating the relationship between
WTO law and international environmental law. The Panels’ and the
Appellate Body’s (unanticipated and unofﬁcial) role in mediating the

9
Ibid., p. 10.
10
WTO, ‘WTO Ministerial Declaration Adopted on 14 November 2001’ (20 November
2001) WT/MIN(01)/DEC/1, para. 31.
11
R. Howse, ‘The World Trade Organization 20 Years on: Global Governance by Judiciary’
(2016) 27 European Journal of International Law 9–77.
12
G. Marceau, ‘The Primacy of the WTO Dispute Settlement Mechanism’ (2015) 23
Questions of International Law 3–13, at 4.
13
Article 2(1) of the WTO DSU on Rules and Procedures Governing the Settlement of
Disputes, Marrakesh Agreement Establishing the World Trade Organization, Annex 2,
1869 U.N.T.S. 401, 33 I.L.M. 1226 (1994).

14
G. Z. Marceau, ‘A Call for Coherence in International Law’ (1999) 33 Journal of World
Trade 87–152; J. P. Trachtman, ‘The Domain of WTO Dispute Resolution’ (1999) 40
Harvard International Law Journal 333–77; G. Z. Marceau, ‘Conflicts of Norms and
Conflicts of Jurisdictions, the Relationship between the WTO Agreement and Meas and
Other Treaties’ (2001) 35 Journal of World Trade 1081–131, at 1116.
15
J. Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to
Other Rules of International Law (Cambridge University Press, 2003), p. 460. Pauwelyn
argues that the applicable law before a WTO panel is limited only by four factors: the
claims that can be brought to a WTO panel; the defences invoked by the defending party;
the scope of the relevant rules ratione materiae, ratione personae and ratione temporis;
and any conflict rules in the WTO treaty, general international law and other non-WTO
treaties.
16
Ibid., p. 460.
17
Articles 1(1), 3(2), 7(1) and 11 of the DSU.
18
L. Bartels, ‘Applicable Law in WTO Dispute Settlement Proceedings’ (2001) 35 Journal of
World Trade 499–519, at 504 et seq. Article 7 of the DSU, for example, has been used to
justify both closed and open positions with regard to the applicable law in WTO dispute
settlement procedures – although the provision itself is rather ambiguous. Indeed, while
Article 7 requires Panels to examine disputes ‘in light of’ relevant provisions in the
covered agreements, and to address relevant provisions in any covered agreement cited
by the parties to the dispute, it does not prevent Panels from addressing other sources of
law in the course of deciding the dispute.
19
Korea – Measures Affecting Government Procurement (2000) WTO Doc. WT/DS163/R,
para. 7.96.

8.3 Irritative Norm Conﬂict and Contingent Forms

of Entanglement over Time
The debate about whether trade liberalization and environmental pro-
tection are in conflict with one another is not new and does not need to
be rehashed in detail here.23 Suffice to say that many environmentalists
and scholars have long criticized the legal framework established by the
GATT and the WTO as ‘inherently biased against environmental protec-
tion and towards economic growth’.24 GATT jurisprudence, beginning
with the Tuna Dolphin I, seemed to confirm the prioritization of inter-
national trade obligations vis-à-vis environmental protection.25 However,
a close reading of the trade and environment disputes over time reveals
subtle shifts in the relationship between the WTO and environmental
norms and a modicum of responsiveness of the GATT – and later the
WTO – dispute settlement bodies towards evolving social context and
external pressures, most prominently in Shrimp-Turtle.

20
Ibid., para. 7.101.
21
Tancredi, ‘Trade and Inter-Legality’.
22
O. Perez, Ecological Sensitivity and Global Legal Pluralism: Rethinking the Trade and
Environment Conﬂict (Hart Publishing, 2004), p. 51.
23
Trachtman, ‘The Domain of WTO Dispute Resolution’.
24
M. Jeffery, ‘Environmental Imperatives in a Globalized World: The Ecological Impact of
Liberalizing Trade’ (2007) 7 Macquarie Law Journal 25–52, at 29.
25
J. P. Trachtman, ‘WTO Trade and Environment Jurisprudence: Avoiding Environmental
Catastrophe’ (2017) 58 Harvard International Law Journal 273–310.

8.3.1 Tuna Dolphin I

8.3.1.1 Overview
Tuna Dolphin I was a highly controversial trade and environment case
brought to the GATT dispute settlement mechanism by Mexico in
1991.26 The dispute concerned US measures aimed at reducing dolphin
mortality incidental to tuna fishing, a practice common in the Eastern
Tropical Pacific (ETP) region. The measures comprised an embargo on
yellowfin tuna caught with purse seine nets in the ETP, certification
requirements for imported tuna and a prohibition on marking tuna
products harvested in the ETP with purse seine nets as ‘dolphin safe’.
While the dispute became notorious for the Panel’s hard-line position on
environmental trade measures, it is notable from the perspective of legal
entanglement as – contrary to expectations – both parties to the dispute
referred to international environmental law to support their respective
claims. Tuna Dolphin I was closely followed by the filing of a second
dispute in 1992 – known as Tuna Dolphin II – in which the European
Communities (EC) challenged the United States’ secondary embargo
against countries that re-exported tuna from countries under the primary
embargo.27

8.3.1.2 Legal Entanglement

Notably, both the United States and Mexico implicitly accepted the
relevance of international environmental treaty law to the dispute at
hand (in addition to relevant GATT provisions). The United States,
invoking the Convention on International Trade in Endangered Species
(CITES), argued that countries should not be forced to allow access to
their markets as an incentive to depleting the populations of species that
are vital components of the ecosystem.28 Mexico countered by stating

26
United States – Restrictions on Imports of Tuna – Report of the GATT Panel,
(3 September 1991) DS21/R (unadopted) (‘Tuna Dolphin I’).
27
United States – Restrictions on Imports of Tuna – Report of the GATT Panel, (16 June
1994), DS29/R (unadopted) (‘Tuna Dolphin II’).
28
Tuna Dolphin I Panel report, para. 3.49.

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   
that CITES ‘did not include in its Appendix I list of species in danger of
extinction any of the species of dolphins which the United States was
claiming to protect’.29
The Panel, finding a violation of the GATT’s substantive provisions
(relating to quantitative restrictions and non-discrimination), turned to
the environmental exceptions contained in GATT Article XX. In a fateful
decision, the Panel interpreted a purely domestic scope to Article XX and
ruled that its exceptions could not be invoked to justify extraterritorial
measures.30 Trade restrictions in response to other countries’ environ-
mental policies or practices were per se inconsistent with the GATT.31
However, the Panel proceeded to argue that even if the GATT permitted
extraterritorial protection of life and health, the United States had to first
exhaust all GATT-consistent measures available to it, in particular
through the negotiation of international cooperative agreements.32 This
reasoning already hints at a general (though still implicit) understanding
that environmental measures should be based on multilateral consensus
in order to be taken into account by the WTO DSB/within the GATT
framework, a notion that was further developed in subsequent case law.
Ultimately, the Panel ruled in favour of Mexico, concluding that the
US trade embargo was inconsistent with the GATT and not justified
under Article XX. Crucially, the Panel also set up the ‘infamous product/
process distinction’ – prompting a debate that continues to this day – by
ruling that the US was not allowed to embargo tuna products from
Mexico based on the way tuna was produced.33 The Panel took a more
environmentally favourable stance with regard to the ‘dolphin-safe’ label,
ruling that it did not violate the GATT ‘because the labelling regulations
governing the tuna caught in the ETP [. . .] applied to all countries whose
vessels fished in this geographical area and thus did not distinguish
between products originating in Mexico and products originating in
other countries’.34 Notably, this measure became subject to a subsequent

29
Ibid., para. 3.44.
30
Tuna Dolphin I Panel report, para. 5.28.
31
Howse, ‘The World Trade Organization 20 Years On’, 36. The rulings in Tuna Dolphin I
and II are widely regarded as having no textual basis in the GATT but to have been
informed instead by ‘some intuitive notion that allowing trade measures to address global
environmental externalities was somehow countenancing the slippery slope towards
unconstrained green protectionism’.
32
Tuna Dolphin I Panel report, para. 5.28.
33
Ibid., para. 5.12 – 5.15. Also see Howse, ‘The World Trade Organization 20 Years On’, 37.
34
Tuna Dolphin I Panel report, para. 5.43–5.44.

8.3.1.3 Aftermath
Although the report remained unadopted, the Panel’s reasoning in Tuna
Dolphin I generated widespread ‘controversy over the capacity of the
multilateral trading system to accommodate legitimate environmental
concerns’.36 The United States, arguably one of the most powerful
‘shapers’ of the GATT/WTO legal regime, threatened to push for amend-
ments to the GATT in light of international environmental objectives.37
Proposals made towards this endeavour included a new ‘Environmental
Code’ as a side agreement to the GATT and establishing an international
tradeable pollution allowance system (similar to what was later instituted
in the Kyoto Protocol) under the auspices of the GATT.38 Although
neither of the Tuna Dolphin I and II Panels’ reports were ever adopted
and they retained little to no legal value following subsequent Appellate
Body rulings, they signiﬁcantly contributed to the perception of WTO
insularity in relation to global environmental concerns.39

8.3.2 Shrimp-Turtle
8.3.2.1 Overview
The legal outcome of the Shrimp-Turtle dispute was seen by many
environmentalists as a breakthrough in the trade environment debate,
indicating a more environmentally friendly interpretation of WTO law

35
The new WTO dispute settlement mechanism instituted a reverse consensus rule, making
the adoption of post 1994 panel reports virtually automatic.
36
World Trade Organization, CITES and the WTO: Enhancing Cooperation for Sustainable
Development (WTO, 2015) p. 3.
37
T. E. Skilton, ‘GATT and the Environment in Conﬂict: The Tuna-Dolphin Dispute and
the Quest for an International Conservation Strategy’ (1993) 26 Cornell International
Law Journal 455–94. The US House of Representatives promptly passed a resolution
mandating the US representative to actively seek GATT reform in order to make
international trade rules more amenable to national and international environmental
laws and to secure a working party on trade and environment within the GATT as soon
as possible.
38
Ibid., 192.
39
G. M. Duran, ‘NTBs and the WTO Agreement on Technical Barriers to Trade: The Case
of PPM-Based Measures Following US – Tuna II and EC – Seal Products’ (2015) 6
European Yearbook of International Economic Law 87–136, at 109.

8.3.2.2 Legal Entanglement

Like in Tuna Dolphin I, both the complainants and the defendant state
invoked outside environmental norms – especially treaty law – to support
their respective claims. The United States referred to the CITES
Appendix I, implying that CITES provided a legal basis for its environ-
mental trade measure.41 The USA further claimed that the use of TEDs
had evolved into an international standard, invoking Agenda 2142 as well
as the UN Fish Stocks Agreement to support its claim.43 The complain-
ants, on the other hand, argued that the US measure was not only in
violation of the GATT but also inconsistent with CITES: while CITES did
prohibit trade in sea turtles, it did not sanction restrictions on shrimp
imports as shrimp were not an endangered species listed in any of
CITES’s annexes.44
The reference to sustainable development in the Preamble of the WTO
Agreement signiﬁcantly altered the ‘backdrop’ against which substantive
WTO obligations were to be interpreted. The USA noted that the WTO
Agreement was the ﬁrst multilateral trade agreement concluded after the
Rio Conference, and argued that trade rules should now operate ‘in a
manner that [respected] the principle of sustainable development and
[protected] and [preserved] the environment’.45 The complainants,

40
Howse, ‘The World Trade Organization 20 Years On’, 37.
41
United States – Import prohibition of certain shrimp and shrimp products – Panel
Report (15 May 1998) WT/DS58/R (‘Shrimp-Turtle’), para. 3.94 Additionally, the USA
also invoked the UN Convention on the Law of the Sea (UNCLOS) Articles 61(2), (4) and
119(1)(b), and Agenda 21 in support of this claim.
42
Shrimp-Turtle Panel report, para. 7.57. Speciﬁcally, the USA referred to paragraph 17.46
(c) of Agenda 21, which promotes ‘the development and use of selective ﬁshing gear and
practices that minimize [. . .] the bycatch of non-target species’ as a ‘multilateral environ-
mental standard to minimize bycatch’.
43
Shrimp-Turtle Panel report, para. 3.95.
44
Ibid., paras 3.5 and 3.98 (India); para. 3.221 (Malaysia).
45
Ibid., para. 3.146.

46
Pakistan, for example, referred to the concept of sustainable development as an environ-
mental norm to be taken into consideration while Pakistan exercises its sovereignty to
decide on the conservation measures to be taken within its jurisdiction (ibid., para. 3.54).
Pakistan also noted that the preamble required members to enhance their means for
protecting and preserving the environment in a manner consistent with the member’s
respective needs and concerns at different levels of economic development (para. 3.85).
47
Ibid., para. 3.95; para. 3.41; and para. 3.157.
48
Ibid., para. 3.274.
49
Ibid., para. 7.45.
50
Shrimp-Turtle Panel report, para. 7.52.
51
Article 5 of the CBD promotes the principle of international cooperation when it comes
to matters of mutual interest for the conservation and sustainable use of
biological diversity.
52
Shrimp-Turtle Panel report, para. 7.53.
53
Ibid., para. 7.58 et seq.

8.3.2.3 Appeal
On appeal, the Appellate Body acknowledged the right of WTO members
to legislate for the protection of natural resources extraterritorially,
overruling the Panel’s ﬁnding.56 Accordingly, Article XX could justify
measures conditioning market access on the adoption of certain conser-
vation policies by exporting members.57 Contrary to the Panel, the
Appellate Body proceeded to take full advantage of the reference to
sustainable development in the WTO Agreement in order to interpret
the environmental exceptions of Article XX. It noted that the preamble
gives ‘colour, texture and shading’ to the substantive obligations in the
WTO agreements.58 In particular, the Appellate Body held that because
migratory sea turtles were listed under CITES as being in danger of
extinction, they constituted ‘exhaustible natural resources’ within the

54
Ibid., para. 7.58.
55
Ibid., para. 7.59.
56
United States – Import Prohibition of Certain Shrimp and Shrimp Products – Appellate
Body Report (12 October 1998) WT/DS58/AB/R, paras 121–2.
57
Duran, ‘NTBs and the WTO Agreement on Technical Barriers to Trade’, 110. See also
Shrimp-Turtle Appellate Body Report, para. 121: ‘It is not necessary to assume that
requiring from exporting countries compliance with, or adoption of, certain policies
(although covered in principle by one or another of the exceptions) prescribed by the
importing country, renders a measure a priori incapable of justification under Article XX.
Such an interpretation renders most, if not all, of the specific exceptions of Article XX
inutile, a result abhorrent to the principles of interpretation we are bound to apply.’
58
D. A. Wirth, ‘Some Reflections on Turtles, Tuna, Dolphin, and Shrimp’ (1998) 9
Yearbook of International Environmental Law 40–7, at 42.

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meaning of Article XX(g) of the GATT.59 The Appellate Body further
stated that ‘[t]he words of Article XX(g) “exhaustible natural resources”
[. . .] must be read by a treaty interpreter in the light of contemporary
concerns of the community of nations about the protection and conser-
vation of the environment [. . .] From the perspective embodied in the
Preamble of the WTO Agreement, the generic term of “natural
resources” in Article XX(g) is not “static” in its content or reference
but is rather, “by definition evolutionary”’.60
Ultimately, however, the Appellate Body found that while ‘the overall
approach of the US shrimp ban was acceptable under the WTO’, the USA
had failed to do justice to the requirements of the chapeau of Article
XX.61 The Appellate Body held that in its application, the US measure
had ‘intended an actual coercive effect on the specific policy decisions
made by foreign governments’ since the application of the measure
required other WTO members to demonstrate that a regulatory scheme
was in place, which was essentially the same as in the USA.62 In addition,
the Appellate Body also faulted the United States for having negotiated
seriously with some but not other members about arrangements for sea
turtle protection (as an alternative to the embargo), which had a discrim-
inatory effect.63 To determine whether the discrimination was also
‘unjustifiable’ in relation to the stated objective of protecting sea turtles,
the Appellate Body turned to international environmental law.64
Invoking the Rio Declaration (Principle 12), Agenda 21 and the CBD
(Article 5), the Appellate Body found that the protection and conser-
vation of highly migratory species of sea turtles demanded ‘concerted and
co-operative efforts’,65 and that, in general, transboundary/global envir-
onmental problems should be dealt with through cooperation and con-
sensus to the greatest extent possible.66

59
Shrimp-Turtle Appellate Body Report, paras 128–31.
60
Shrimp-Turtle Appellate Body Report, paras 129–30.
61
Howse, ‘The World Trade Organization 20 Years On’, 42.
62
M. Bowman, P. Davies and C. Redgwell, Lyster’s International Wildlife Law (Cambridge
University Press, 2010), p. 664.
63
P. Sands, J. Peel and R. MacKenzie, Principles of International Environmental Law
(Cambridge University Press, 2012), p. 970.
64
R. Howse, ‘The Appellate Body Rulings in the Shrimp/Turtle Case: A New Legal Baseline
for the Trade and Environment Debate’ (2002) 27 Columbia Journal of Environmental
Law 491–521, at 506.
65
Shrimp-Turtle Appellate Body Report, para. 168.
66
Sands, Peel and MacKenzie, Principles of International Environmental Law, p. 970.

8.3.3 EC-Hormones
8.3.3.1 Overview
The EC-Hormones dispute before the WTO illustrates how the
Agreement on Sanitary and Phytosanitary Measures (SPS Agreement)
operates in relation to international standards and in relation to other
norms of international law, speciﬁcally the precautionary principle.69
Like the Agreement on Technical Barriers to Trade (TBT Agreement)
(see US-Tuna II), the SPS Agreement goes beyond the non-
discrimination principles enshrined in the GATT by promoting ‘global
regulatory harmonization through the application of international stand-
ards’.70 By requiring WTO members to base their measures on either
international standards or on science and risk assessment (Articles 3.1

67
Howse, ‘The World Trade Organization 20 Years On’, 41.
68
Ibid., 42.
69
European Communities – Measures Concerning Meat and Meat Products (Hormones)
(Canada) – Panel report (19 August 1997) WT/DS48/R/CAN; European Communities –
Measures Concerning Meat and Meat Products (Homones) (US) – Panel report,
(18 August 1997) WT/DS26/R/USA (‘EC Hormones’).
70
Tancredi, ‘Trade and Inter-Legality’, p. 171.

8.3.3.2 Legal Entanglement

The CAC had already developed standards for some of the hormonal
substances concerned. The USA therefore contested the EC’s measures
on the grounds that they were not based on the relevant international
standards, guidelines or recommendations and that this departure from
international standards could not be scientifically justified. The EC coun-
tered that WTO members had the right to choose their own levels of
protection, which may be higher than those recommended by inter-
national standards, invoking the precautionary principle as a justification
for a higher protection level.74 While the SPS Agreement requires

71
Annex A.3 SPS.
72
Article 3.2 SPS.
73
EC Hormones Panel Report (US), para. 3.2 With regard to the SPS Agreement, the USA
claimed inter alia that the measures were not based on an assessment of risk and therefore
inconsistent with Article 5.1, that they lacked sufficient scientific evidence in contraven-
tion of Article 2.2, that they were not justified as a provisional measure under Article 5.7
and that they were not based on scientific principles thereby breaching Articles 2.2 and
5.6, that they were applied beyond the extent necessary to protect human life or health,
and that they were more trade restrictive than required to achieve the appropriate level of
sanitary protection.
74
Ibid., para. 4.203.

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members to base their measures on risk assessments and available scien-
tific data, the precautionary principle allows countries to take measures
in the face of scientific uncertainty. Notably, the EC did not invoke
Article 5.7 of the SPS Agreement which permits members to take interim
measures in the face of insufficient scientific evidence and is generally
viewed as reflecting the precautionary principle in the context of the SPS
Agreement. The EC reasoned that this decision was deliberate because
the measures were considered definitive and not provisional.75 The EC
also pointed out that the Codex standards had been adopted by a very
slim margin in what was ordinarily a consensus-based system. By ques-
tioning the level of support for the Codex standards the EC expressed
expectations about the substantive dimensions of the interface norm
contained in the SPS Agreement: international standards should only be
taken into account if they are considered legitimate, as indicated by
widespread to universal acceptance during adoption.76 The Panel
rejected the need to consider by what margin any relevant standard
was adopted,77 and found that the EC measure violated the SPS
Agreement by deviating from the relevant international standard (in
the sense that it afforded a higher level of protection) without sufficient
justification.78 Further, the Panel found that the precautionary principle
(to the extent that it could be considered as part of customary inter-
national law) ‘would not override the explicit wording’ of SPS provisions
relating to risk assessment techniques (and scientific evidence), ‘in par-
ticular since the precautionary principle [had] been incorporated
and given specific meaning in Article 5.7 of the SPS Agreement’.79 The
harmonization logic of the SPS Agreement thus contributed to lowering a
member’s chosen protection threshold – in accordance with international
standards adopted with only tenuous international support – while a

75
EC Hormones Panel Report (US), para. 4.239.
76
P. Delimatsis, The Law, Economics and Politics of International Standardisation
(Cambridge University Press, 2015), p. 90. The EU and other countries have repeatedly
expressed this claim that the Codex should respect consensus-based decision-making as
one of the fundamental principles of the organisation; see a recent example: Codex
Alimentarius Commission (35th Session) Rome, 2–7 July 2012, EU Statement on racto-
pamine ‘for standards to be universally applicable, they also need to be universally
accepted’.
77
EC Hormones Panel Report (US), para. 8.69.
78
Ibid., paras 8.75–8.77.
79
Ibid., para. 8.157.

8.3.3.3 Appeal
The EC appealed the ruling, arguing that the precautionary principle’s
applicability extended beyond Article 5.7 to influence risk assessment
(and risk management) under Article 5.1 of the SPS Agreement, and thus
operated to justify higher protection thresholds.80 Notably the EC did not
refer to the precautionary principle in the context of international envir-
onmental law but in the context of general and customary international
law. The Appellate Body, siding with the Panel, found that while the
precautionary principle may have crystallized in the field of international
environmental law, its status as customary international law or a general
principle of law was less certain. By relegating the principle to the
confines of international environmental law, the Appellate Body down-
played its relevance for the dispute at hand. Further, the Appellate Body
stated that ‘the precautionary principle does not, by itself, and without a
clear textual directive to that effect, relieve a panel from the duty of
applying the normal (i.e. customary international law) principles of
treaty interpretation in reading the provisions of the SPS Agreement’.81
In effect, the Appellate Body communicated that whatever the state of the
precautionary principle in international law was, ‘the principle could not
override the explicit obligations contained in the SPS Agreement and it
could not be used to justify measures otherwise inconsistent with the SPS
Agreement’.82 The EC ultimately ‘lost’ the case as its measures were
found not to have been based on appropriate risk assessment: the EC
could neither prove ‘laboratory scientific evidence’ nor ‘real-world risk’
(misuse in the administration of hormones to animals).83 This ruling flies
in the face of the precautionary principle (as codified for example in
Principle 15 of the Rio Declaration), the purpose of which is precisely to
empower governments in the face of scientific uncertainty.

80
European Communities – Measures Concerning Meat and Meat Products (Hormones) –
Report of the Appellate Body (16 January 1998), WT/DS26/AB/R and WT/DS48/AB/R,
para. 16.
81
EC Hormones Appellate Body Report, paras 124–5.
82
M. L. Maier and C. Gerstetter, ‘Risk Regulation, Trade and International Law: Debating
the Precautionary Principle in and around the WTO’, TranState working papers
(2005), 12.
83
Howse, ‘The World Trade Organization 20 Years On’, 58.

8.3.3.4 Aftermath
Following the EC-Hormones disputes, the EC made a concerted push for
strengthening the precautionary principle in international law. After
having unsuccessfully advocated for a renegotiation of relevant provi-
sions within the SPS Agreement, the EC turned its attention to multilat-
eral fora outside the WTO.86 In 2000, the Cartagena Protocol on
Biosafety to the Convention on Biological Diversity (the ‘Biosafety
Protocol’) was agreed upon, which regulates risks associated with the
transboundary movement of living modified organisms. The Biosafety
Protocol ‘[reaffirms] the precautionary approach contained in Principle
15 of the Rio Declaration on Environment and Development’87 and
grants importing states the right to make decisions that would avoid or
reduce potential adverse effects in the face of scientific uncertainty.88 The
Biosafety Protocol thus ‘multilateralizes the EU regulatory approach’
towards sanitary measures, opening the door to other countries to adopt
restrictive, EU-style market access rules.89 Unsurprisingly, one of the

84
EC Hormones Appellate Body Report, para. 172.
85
Maier and Gerstetter, ‘Risk Regulation, Trade and International Law’, 16.
86
Santarius et al., ‘Balancing Trade and Environment’. Notably, environmental organiza-
tions/groups – such as the Forum Umwelt und Entwicklung – and states had long been
pushing for the precautionary principle to be incorporated into WTO law in more
unrestricted form.
87
UNEP, Preamble, ‘Cartagena Protocol on Biosafety to the Convention on Biological
Diversity (the Biosafety Protocol)’ (2000).
88
This is in the context of the ‘advanced informed agreement’ procedure which applies to
the first transboundary movement of a living modified organism that is intended to be
released into the environment of an importing party.
89
G. E. Isaac and W. A. Kerr, ‘The Biosafety Protocol and the WTO: Concert or Conflict?’,
in R. Falkner (ed.), The International Politics of Genetically Modified Food: Diplomacy,
Trade and Law (Palgrave Macmillan, 2006), pp. 195–212, at p. 196.

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most contentious issues during the negotiation process was the
Protocol’s relationship with international trade law.90 In this regard,
the preamble ‘[recognizes] that trade and environment agreements
should be mutually supportive with a view to achieving sustainable
development’ and ‘[emphasizes] that [the] Protocol shall not be inter-
preted as implying a change in the rights and obligations of a Party
under any existing international agreements’ (while also ‘understanding
that the above recital [was] not intended to subordinate [the] Protocol
to other international agreements’). The EC also successfully campaigned
for the inclusion of the precautionary principle in the risk assessment
techniques developed by the Codex Alimentarius Commission.91 As
a result, two newly negotiated documents, the 2003 and 2007 Working
Principles for Risk Analysis for Food Safety for Application by
Governments, recognize precaution as an inherent element of risk
assessment.92
After several years of keeping its genetically modified organism
(GMO) measures in place while accepting the punitive tariffs imposed
by the USA and Canada in return, the EC was able to produce scientific
evidence to prove risk from synthetic growth hormones. The EC subse-
quently amended its law to bring them into compliance with the
Appellate Body’s ruling.93 Nevertheless, the USA and Canada continued
to retaliate, prompting the EC to challenge the legality of continued
retaliatory measures in 2005. This ‘follow-up dispute’ Canada/US –
Continued Suspension (2008), gave the Appellate Body the opportunity
to revisit its previous ruling (in light of the new normative developments
that had occurred outside the WTO). In Canada/US – Continued
Suspension, the Appellate Body developed the concepts of ‘risk assess-
ment’ and ‘sufficiency of scientific evidence’ as ‘relational concepts’
implying that issues such as ‘the appropriate level of protection’ chosen
by a government could shape the methodology and questions studied in

90
P. E. Hagen and J. B. Weiner, ‘The Cartagena Protocol on Biosafety: New Rules for
International Trade in Living Modiﬁed Organisms’ (2000) 12 The Georgetown
International Environmental Law Review 697–717, at 702.
91
Maier and Gerstetter, ‘Risk Regulation, Trade and International Law’.
92
FAO, Principle 11, ‘Working Principles for Risk Analysis for Application in the
Framework of the Codex Alimentarius’ (Risk Analysis Principles Applied by the Codex
Committee on Food Additives and Contaminants) (2003); FAO, Principle 12, ‘Working
Principles for Risk Analysis for Food Safety for Application by Governments (CAC/GL
62–2007)’ (2007).
93
Delimatsis, The Law, Economics and Politics of International Standardisation, p. 97.

8.3.4 EC-Biotech
8.3.4.1 Overview
The EC-Biotech dispute represents another deliberation on the extent to
which the precautionary principle is applicable in relation to the SPS
Agreement. In 2003, three exporters of agricultural products containing
GMOs – the United States, Canada and Argentina – challenged the EC
on some of its measures relating to GMOs. The EC had instituted a
moratorium on the approval of GMOs during the period of October
1998 and August 2003 and, in addition, some EC member states had put
in place national restrictions on GMOs and genetically modiﬁed foods.
Notably, the EC’s regulatory regime for GMOs was (and is) signiﬁcantly
informed by the precautionary principle.
The dispute came on the heels of the adoption of the Biosafety
Protocol, which was not only substantively relevant to the dispute at
hand (namely GMO-related measures) but also incorporated a more
robust version of the precautionary principle than the SPS
Agreement.97 Indeed, the complaint has been viewed as implicitly
targeting the Biosafety Protocol in order to weaken its relevance for the
SPS Agreement.98 With regard to the trade–environment interface, the
Panel’s reasoning in EC-Biotech is widely viewed as a setback for a
mutually supportive relationship as the Panel prima facie dismissed the
relevance of the Biosafety Protocol to the dispute.

94
Ibid., p. 97 et seq.
95
Ibid., p. 98.
96
Howse, ‘The World Trade Organization 20 Years On’, 58.
97
J. Zhao, ‘The Role of International Organizations in Preventing Conﬂicts between the SPS
Agreement and the Cartagena Protocol on Biosafety’ (2020) 29(2) Review of European,
Comparative & International Environmental Law 1–11.
98
Isaac and Kerr, ‘The Biosafety Protocol and the WTO’, p. 196.

8.3.4.3 Aftermath
The EC decided not to appeal the ruling of the Panel and instead pursued
a ‘Mutually Agreed Solution’, decided between Canada and the EU in
2009, which established ‘a bilateral dialogue on agricultural biotech

99
European Communities – Measures Affecting the Approval and Marketing of Biotech
Products – Panel report (29 September 2006) WT/DS291/292/293/R (‘EC-Biotech’),
para. 7.55.
100
EC-Biotech Panel report, para. 4.600.
101
CIEL, ‘EC-Biotech: Overview and Analysis of the Panel’s Interim Report’ (Mach 2006),
p. 46.
102
Ibid., p. 49.

8.3.5 US-Tuna II
8.3.5.1 Overview
Following the GATT Panels’ rulings in Tuna Dolphin I and II, ‘the
United States eventually allowed all tuna, no matter how it had been

103
European Communities – Measures Affecting the Approval and Marketing of Biotech
Products – Mutually Agreed Solution between Canada and the European Communities
(15 July 2009) WT/DS292/40, G/L/628/Add.1.
104
A. Arcuri, ‘Is CETA Keeping up with the Promise? Interpreting Certain Provisions
Relating to Biotechnology’ (2017) 41 Questions of International Law, Zoom-Out 35–58.
105
Ibid., 47 et seq.

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harvested, to be sold in its market’ while reserving the ‘dolphin-safe’ label
for tuna harvested in a particular manner.106 In 2008, Mexico requested
consultations with the United States with regard to its ‘dolphin-safe’
labelling requirements, initiating the next phase of the long-running tuna
dolphin dispute. This section will focus primarily on how the Appellate
Body in US-Tuna II (Mexico) (not to be confused with Tuna Dolphin II,
the 1994 dispute initiated by the EC against the USA concerning its
secondary embargo against re-exported tuna) shed light on how the
relationship between the TBT Agreement and international standards
should be construed. Like the SPS Agreement, the TBT Agreement
requires the harmonization of national regulations on the basis of inter-
national standards (Article 2.4). However, unlike the SPS Agreement,
which provides a list of international standard-setting organizations
(such as the Codex Alimentarius Commission), the TBT Agreement does
not list any institutional/authoritative sources of international standards.
The question of what counts as an international standardizing body is
important as such a classiﬁcation automatically triggers the harmoniza-
tion obligation (i.e. pressure for entanglement) established in Article 2.4
of the TBT.107
Mexico challenged the ‘dolphin-safe’ labelling requirements as incon-
sistent with inter alia the TBT Agreement.108 Notably, the (state-
administered) voluntary labelling scheme was considered to be a manda-
tory technical regulation, thus falling within the remit of the TBT
Agreement.109 As such, Mexico claimed that the US measure should
have been based on the relevant international standard (according to
Article 2.4), speciﬁcally the labelling scheme established under the
Agreement on the International Dolphin Conservation Program
(AIDCP). Notably, the AIDCP is only a regional organization to which
only a subset of WTO members adheres. The Panel and the Appellate
Body were tasked with determining whether the AIDCP labelling scheme

106
P. C. Mavroidis, ‘Last Mile for Tuna (to a Safe Harbour): What Is the TBT Agreement
All About?’ (2019) 30 European Journal of International Law 279–301, at 280.
107
TBT 2.4 requires national technical regulations, standards and conformity assessments
to be based on relevant international standards except where such standards would be an
ineffective or inappropriate means for the fulﬁlment of the legitimate objectives pursued.
108
M. A. Crowley and R. Howse, ‘Tuna–Dolphin II: A Legal and Economic Analysis of the
Appellate Body Report’ (2014) 13 World Trade Review 321–55, at 321.
109
Both the Panel and the Appellate Body in Tuna Dolphin II found that the US measure
constituted a mandatory technical regulation because it prescribed by law minimum
requirements for accessing the ‘dolphin-safe’ labelling scheme in the USA.

8.3.5.2 Legal Entanglement/Appeal

For the purposes of the TBT Agreement, ‘international standards are
those adopted by international standardizing bodies, meaning those with
recognized activities in standardization that are open on a non-
discriminatory basis to relevant bodies of at least all WTO
Members’.110 While the Panel agreed with Mexico that the AIDCP was
an international standardizing body,111 the Appellate Body found that it
did not fulfil the requirement of ‘openness’ because countries could only
accede to the AIDCP by invitation.112 As a result, the ‘AIDCP dolphin-
safe definition and certification’ scheme did not constitute an inter-
national standard within the meaning of the TBT Agreement, and the
USA was not required to base its domestic ‘dolphin-safe’ regulation
upon it.
However, the Appellate Body did not stop there, clarifying further the
meaning of ‘recognized’ activities in standardization. Considering that
the resulting standards would apply to all WTO members, the Appellate
Body found that recognition of international standardization activities
had to go beyond the subset of WTO members participating in the
standard-setting process, therefore ‘the larger the number of countries
that participate in the development of a standard, the more likely it can
be said that the respective body’s activities in standardization are “recog-
nized”’.113 Moreover, ‘[e]vidence of a body’s compliance with procedural
and substantive safeguards formulated by WTO Members would be
relevant for the question of whether its standardizing activities are
“recognized” for the purposes of the TBT Agreement’.114 In this context,
the Appellate Body referred to a TBT Committee Decision from the

110
P. V. den Bossche and D. Prévost, Essentials of WTO Law (Cambridge University Press,
2016), p. 190.
111
United States – Measures Concerning the Importation, Marketing and Sale of Tuna and
Tuna Products – Panel report (15 September 2011) WT/DS381/R (‘US-Tuna II’),
para. 7.691.
112
United States – Measures Concerning the Importation, Marketing and Sale of Tuna and
Tuna Products – Report by Appellate Body (16 May 2012) WT/DS381/AB/R, para. 399.
113
US-Tuna II Appellate Body Report, para. 390.
114
Ibid., para. 377.

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    ’   
year 2000 (‘the Decision’), which sets out guiding principles and
procedures that standardizing bodies should observe when developing
international standards, inter alia transparency, openness, impartiality
and consensus.115 The Decision is significant as it spells these principles
out in some detail, thus defining a relatively precise guidance for the
entanglement of WTO law with standards from other sources. In an early
case under the TBT Agreement, EC-Sardines, the Panel had dismissed the
Decision as ‘a [mere] policy statement of preference and not the control-
ling provision in interpreting the expression “relevant international
standard” as set out in Article 2.4 of the TBT Agreement’.116 In Tuna
Dolphin II, the Appellate Body reversed this finding, stating that the
Decision constituted a subsequent agreement of the parties in the mean-
ing of Article 31(3)(a) VCLT and should be read together with the
TBT.117
The weight that the Appellate Body gave to the Decision is significant
because it directly clarifies several points of contention with regard to
interpreting the TBT and how it relates to international standards.
Principle three, for example, explicitly emphasizes consensus as a require-
ment for international standards in the TBT Agreement, even though an
explanatory note to TBT Annex I.2 states that the TBT also covers
documents not based on consensus. Notably, the Appellate Body in
EC-Sardines had rejected the consensus requirement.118 The Appellate
Body’s ruling in EC-Sardines had also implied a large measure of regula-
tory harmonization and ‘a very close fit or relationship between any
technical regulation and the international standard, providing very little
flexibility for regulatory diversity’.119 By contrast, the Appellate Body in
US-Tuna II resisted ‘demands for regulatory harmonization through
Article 2.4’ by emphasizing the criteria contained in the Decision relating
to transparency and meaningful participation.120 Thus, the Appellate
Body effectively transformed the Decision into ‘a code of administrative

115
TBT Committee, ‘Decision on Principles for the Development of International
Standards, Guides and Recommendations’ (13 November 2000) G/TBT/9, Annex 4.
116
European Communities – Trade Description of Sardines – Panel report (29 May 2002)
WT/DS231/R, para. 7.91.
117
US-Tuna II Appellate Body Report, para. 372.
118
European Communities – Trade Description of Sardines – Report by Appellate Body
(26 September 2002) WT/DS231/AB/R, para. 224.
119
Howse, ‘The World Trade Organization 20 Years On’, 56.
120
Ibid., 56.

8.3.5.3 Aftermath
In response to the Panel and the Appellate Body reports, the United
States modified its dolphin-safe labelling requirements to comply with
the Appellate Body’s ruling. However, the US measure continued to
impose different certification and tracking and verification requirements
depending on the fishery where the tuna was caught, with more burden-
some requirements for tuna caught in the ETP. After several rounds of
compliance proceedings, in which Mexico continued to challenge the
United States’ measure due to discriminatory effects and with both
parties repeatedly appealing, the Panel found that the US measure was
not discriminatory and exonerated the USA from responsibility, a finding
that the Appellate Body confirmed. The distinctions made in the United
States’ measure (i.e. its discriminatory elements) were found to be cali-
brated to the different levels of risk posed by the practice of ‘setting’ on
dolphins vis-à-vis other fishing methods. Thus, the detrimental impact
caused by the US measure stemmed exclusively from a legitimate regula-
tory distinction and did not result in ‘treatment less favourable than that
accorded to like products from the United States and other countries’
(consistency with Article 2.1 as well as with the chapeau of GATT Article
XX).122 The final compliance report (with no finding of non-compliance)
was circulated to members in December 2018, and adopted in January
2019, thereby concluding a dispute that had run on for almost thirty
years.

121
Crowley and Howse, ‘Tuna–Dolphin II’, 342.
122
United States – Measures Concerning the Importation, Marketing and Sale of Tuna and
Tuna Products – Recourse to Article 21.5 of the DSU by the United States; United
States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna
Products – Recourse to Article 21.5 of the DSU by Mexico, Report by Appellate Body (14
December 2018) WT/DS381/AB/RW/USA; WT/DS381/AB/RW2, paras 7.1–7.14.

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    ’   
8.4 Main Findings
8.4.1 Irritative Norm Conflict Over Time
The unadopted Panel report in Tuna Dolphin I set the stage for an
antagonistic relationship between the GATT-based multilateral trading
system and environmental trade measures for the achievement of global
environmental objectives. Through repeated ‘irritations’ of trade law by
environmental norms (through litigation in the WTO combined with
external pressure), subsequent rulings by Panels and the WTO Appellate
Body significantly corrected/recalibrated controversial aspects of the
trade and environment interface, a process that is referred to here as
irritative norm conflict over time.123
The ‘Tuna Dolphin saga’ (in which Shrimp-Turtle constitutes a crucial
building block) illustrates how irritative norm conflict over a period of
almost thirty years allowed WTO judicial bodies to adjust elements of
previous jurisprudence that had ‘gone too far’ in asserting trade object-
ives over members’ right to regulate. Although Tuna Dolphin I had found
unilateral environmental trade measures with extraterritorial effects
prima facie incapable of justification under the GATT, the Appellate
Body in Shrimp-Turtle reversed this finding and clarified that GATT
Article XX could, in fact, justify measures conditioning market access on
environmental policies/PPMs abroad – as long as the measures do not
amount to arbitrary or unjustifiable discrimination.124 As a result, the
ruling of the Appellate Body in Shrimp-Turtle was widely perceived as ‘a
bold attempt to construct a broader societal vision of the WTO [. . .]
more sensitive to environmental concerns’.125 Both the Shrimp-Turtle
import requirements and the Tuna Dolphin/US-Tuna II labelling provi-
sions were ultimately found to be consistent with WTO law; however,
this was only after the United States had been subjected to several (costly)
rounds of litigation and revisions of the law. Thus, while environmental
norms have gained clout in the WTO, the fundamental objective of the
WTO system – an open international economic system – is preserved
through the meticulous enforcement of non-discrimination principles.

123
On irritative norm conﬂicts, see N. Krisch, F. Corradini and L. L. Reimers, ‘Order at the
Margins: The Legal Construction of Interface Conﬂicts over Time’ (2020) 9 Global
Constitutionalism 343–63.
124
J. Pauwelyn, ‘Recent Books on Trade and Environment: GATT Phantoms Still Haunt the
WTO’ (2004) 15 European Journal of International Law 575–92.
125
Perez, Ecological Sensitivity and Global Legal Pluralism, p. 65.

8.4.2 Legal Entanglement (and Mechanisms of Distancing)

The narrative of competing objectives between international trade law
and international environmental law obscures the way in which the two
bodies of norms are already entangled, going as far back as Tuna Dolphin
I (in which both parties made legal claims relating to international
environmental law). All participants in the GATT/WTO dispute settle-
ment system regularly invoke outside bodies of norms to justify their
claims. The judicial bodies themselves have on several occasions inquired
into possible legal bases/defences for WTO-inconsistent measures,
grounded in international environmental law (e.g. the Panel in Shrimp-
Turtle), and routinely draw on international environmental norms in
their legal reasoning. Notably, this is not always done to advance ‘trade-
friendly’ arguments. WTO disciplines on non-discrimination are often
brought into relation with international environmental norms that
emphasize international cooperation (e.g. the Panel and Appellate Body
in Shrimp-Turtle). Consequently, a closer relationship between

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    ’   
international trade law and international environmental law will not
necessarily result in more ‘environmentally friendly’ rulings. In this vein,
some of the foundational critiques directed at the multilateral trading
system can also be levelled against the international environmental
regime, which has incorporated into its body of norms a bias against
unilateral trade measures and has embraced the objective of liberalized
trade (e.g. Principle 12 of the Rio Declaration). The two bodies of norms
have always been more entangled (and mutually reinforcing) than
generally assumed.
The reference to sustainable development in the Preamble of the
WTO Agreement plays a central ‘entangling’ function at the interface
between trade and environment, opening the door for outside environ-
mental norms to enter WTO law through GATT Article XX (e.g. in
Shrimp-Turtle). However, such forms of relationing between inter-
national trade law and outside bodies of norms are tenuous and remain
contingent on the Panels’ and Appellate Body’s willingness to take
outside norms into consideration on a case-by-case basis – essentially
at their discretion. For instance, while the Appellate Body in Shrimp-
Turtle had referred to outside treaty law not binding on all the disput-
ing parties (the CBD), the Panel in EC-Biotech rejected the applicability
of the Biosafety Protocol because the United States was not a party to it,
and it could therefore not be considered ‘applicable’ in the relations
between the parties according to Article 31(3)(c) of the Vienna
Convention.
Resistance to legal entanglement comes in the form of strategies for
distancing. In EC-Hormones, various techniques for creating distancing
between the precautionary principle and obligations under the SPS
Agreement were employed by the disputants, the Panel and the
Appellate Body, including (1) relegating the precautionary principle to
the realm of international environmental law while calling into question
the status of the precautionary principle as a general principle of inter-
national law or a rule of customary international law; (2) restricting the
applicability of the precautionary principle to its (partial) reﬂection in the
SPS Agreement (Article 5.7) but rejecting its general applicability with
regard to other provisions (namely Articles 5.1 and 5.2); and (3) pointing
to the absence of a ‘clear textual directive’ that would allow an external
norm to affect the interpretation of a provision in a WTO Agreement.
Article 3.2 of the DSU requires treaty interpreters to refer to any relevant
rules of international law applicable in the relations between the parties
(according to Article 31(3)(c) of the Vienna Convention). As customary

8.4.3 Interface Norms in the GATT/WTO Context

Although the relationship between WTO law and international environ-
mental law is not centrally regulated, both bodies of norms contain
‘interface norms’ that guide forms of relationing to the other ‘from the
inside out’. In the WTO context, Article XX of the GATT can be viewed
as a reception norm, allowing external norms to enter into GATT law.
The specific environmental terms mentioned in GATT Article XX serve
as ‘docking points’ for environmental norms to connect to. Once made,
such linkages endure even as external legal orders change over time, in
turn influencing the interpretation of ‘coupled’ WTO norms. Notably,
the chapeau of GATT Article XX sets out substantive criteria for the
application of environmental measures by conditioning ‘entry’ on non-
discrimination/even-handedness and multilateralism/international con-
sensus (see Section 8.4.4).
Not all reception norms are textually explicit, however. The concept of
‘legitimate regulatory distinction’ to justify discriminatory treatment was
read into Article 2.1 of the TBT Agreement by the Appellate Body
through successive case law (including US-Tuna II). It allows for balan-
cing TBT non-discrimination objectives/obligations with legitimate regu-
latory interventions (such as for environmental protection) and thus
fulfils the same purpose as GATT Article XX, including – conceivably –
as a reception norm. Similarly, even though Article 5.7 of the SPS
Agreement does not mention the term ‘precaution’ as such, the provision
is generally viewed as a reflection of the precautionary principle and thus
allows for external bodies of norms related to the precautionary principle
to enter into WTO law.
The reference to sustainable development in the Preamble of the WTO
Agreement connects trade rules to the vast body of international environ-
mental law (and the emerging field of ‘international sustainable develop-
ment law’). As a connecting norm, somewhat akin to the multi-sourced

8.4.4 Substantive Dimensions for Interface Norms

An important factor inﬂuencing the porosity of WTO law is whether the
external norm is of multilateral origin or constitutes an international
standard. Environmental measures based on multilateral consensus have
a higher likelihood of being taken into account in the WTO context than
unilateral measures with little international support (although this is not
guaranteed, see the Panel’s dismissal of the Biosafety Protocol in EC-
Biotech). This way of reasoning is in line with the notion that the
interface between international trade law and other norms of inter-
national law is governed primarily by the customary rules on treaty
interpretation (as codiﬁed in the Vienna Convention) that require any
relevant rules of international law applicable in the relations between the
parties to be taken into account together with context. As opposed to
external treaty norms, customary international law binds all states and
will always be binding on parties in a given trade dispute (no matter the

126
See T. Broude and Y. Shany (eds), Multi-sourced Equivalent Norms in International Law
(Bloomsbury Publishing, 2011).

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   
constellation). It follows that linkages with external norms are more
easily produced if the latter are considered general or customary inter-
national law (see Section 8.4.2), as well as when there are ‘docking norms’
in the text that can provide the Panel or the Appellate Body with a
‘textual directive’ – that is, a mandate – for linkage.
Further, entanglement between WTO law and international standards
is explicitly encouraged through the TBT Agreement and the SPS
Agreement, which promote the harmonization of national regulations
on the basis of international standards. The substantive dimensions of
entanglement between WTO law and international standards is gradually
being ‘fleshed out’ with additional (still contested) criteria such as the
level of international support for the adoption of the norm in question
(consensus, broad membership, inclusiveness/participation). For
example, in EC-Hormones the EC did not recognize a specific set of
Codex standards as being ‘international standards’ due to the narrow
margin by which it was adopted. The EC thus expressed expectations
about the substantive dimensions of the interface norm contained in the
SPS Agreement: international standards should only be taken into
account if they are considered legitimate, as indicated by broad accept-
ance during adoption (see Section 8.3.3.2). While the Panel in EC-
Hormones rejected the EC’s reasoning, the Appellate Body in US-Tuna
II gave significant weight to a 2000 TBT Committee Decision, which
contains a set of substantive criteria that qualify the appropriateness of
international standards from the perspective of the WTO (specifically the
TBT Agreement), including transparency, openness, consensus and
effectiveness. In this regard, the Appellate Body also indicated that the
number of countries participating in a standard-setting process relative
to the total number of WTO members is relevant for the entry of
international standards into WTO law via TBT Article 2.4.

8.5 Conclusion
This chapter addressed horizontal ways of relationing between inter-
national trade law and international environmental law, and explored
how these different legalities respond to each other and manage tensions
without subordination. The ﬁndings show how repeated ‘irritations’ of
trade law through environmental norms, expressed in WTO dispute
settlement and combined with external political pressure (including by
building and harnessing pressure in other multilateral fora), can prompt
‘recalibrations’ at the interface of WTO law and encourage the

Weaving Transnational Legalities

Targeting Bad Apples or the Whole Barrel?

The Legal Entanglements between Targeted and
Comprehensive Logics in Counter-Proliferation
Sanctions

    

9.1 Introduction
Jurists and legal historians have increasingly come to the realization that
the story of their discipline is not, in fact, that of the gradual diffusion of
Western concepts to the rest of the world. The emergence of new norms
of global governance and the history of international law more generally
are made up of multiple stories that have no single point of departure.1
The history of legal concepts, imaginaries and ﬁelds of practice is full of
examples of such ‘legal entanglements’ between various systems of law,
located at different scales, and generated according to different temporal-
ities and historicities.2 The new historiography on colonialism and
empires, for instance, has insisted on the two-way transport of legal
concepts and practices and the plurality of legal orders that were consti-
tuted over time during the Spanish, British, French and even German
empires.3 In many cases, scholars of colonial law have demonstrated that

This chapter is directly based on a project headed by Grégoire Mallard that received funding
from the European Research Council under the European Union’s Horizon 2020 research
and innovation program (Grant Agreement PROSANCT, ‘Bombs, Banks and Sanctions’,
Project 716216). The authors thank all the interviewees who participated in the research.
1
T. Duve, ‘Entanglements in Legal History. Introductory Remarks’, in T. Duve,
Entanglements in Legal History: Conceptual Approaches (Max Planck Institute for
European Legal History, 2014), pp. 3–25.
2
B. S. Chimni, International Law and World Order: A Critique of Contemporary Approaches
(Cambridge University Press, 2017).
3
L. Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900
(Cambridge University Press, 2001); G. Steinmetz, The Devil’s Handwriting:
Precoloniality and the German Colonial State in Qingdao, Samoa, and Southwest Africa
(University of Chicago Press, 2008); Duve, Entanglements in Legal History; J. Go, ‘Global



Fields and Imperial Forms: Field Theory and the British and American Empires’ (2008) 26
Sociological Theory 201–29; G. Mallard, Gift Exchange: The Transnational History of a
Political Idea (Cambridge University Press, 2019).
4
S. E. Merry, ‘Legal Pluralism’ (1988) 22 Law & Society Review 869–96; see also S. E. Merry,
Human Rights and Gender Violence: Translating International Law into Local Justice
(University of Chicago Press, 2009).
5
Colonial legal entanglements were not tightly tied together, and the multiple actors who
circulated from one imperial order to another well tolerated multiplicity and contradiction
in the interpretation of plural legal orders (see Benton, Law and Colonial Cultures).
6
S. C. Hofmann, ‘Overlapping Institutions in the Realm of International Security: The Case
of NATO and ESDP’ (2009) 7 Perspectives on Politics 45–52; K. J. Alter and K. Raustiala,
‘The Rise of International Regime Complexity’ (2018) 14 Annual Review of Law and Social
Science 329–49.
7
Y. Dezalay and B. Garth, The Internationalization of Palace Wars: Lawyers, Economists
and the Struggle to Transform Latin American States (Chicago University Press, 2002); Y.
Dezalay and B. Garth, Asian Legal Revivals: Lawyers in the Shadow of Empire (Chicago
University Press, 2010); Steinmetz, The Devil’s Handwriting; Go, ‘Global Fields and
Imperial Forms’; Mallard, Gift Exchange.

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      ? 
power are inscribed in norms but that it is mostly in practice where
power actually manifests itself – most often, through practices of know-
ing, classifying and reifying certain visions of the world.8 They also tend
to agree that although some hidden path dependency may well explain
the overall direction of history, the continued existence of normative
contradictions within any given ‘regime complex’9 leaves room for con-
tingencies and even sudden reversals. Importantly, scholars who use the
notion of ‘legal entanglement’ accept that normative contradictions do
not necessarily threaten the working and stability of a transnational legal
order.10 This position departs from the traditional rationalistic view that
a normative system can only be stable if it is based on clear, self-
reinforcing and non-contradictory principles, such that one can derive
from it rules of conduct and agreed-upon punishments in case of viola-
tions. The notion of ‘legal entanglement’ therefore introduces a ‘post-
modern’ perspective11 to modernity’s rationalist project of building
universal rules beyond the nation state based on clear and quasi-
constitutional foundations.
In this chapter, we adopt a similar perspective on ‘legal entanglements’
to explain contemporary dynamics in transnational legal orderings in the
ﬁeld of security. In particular, we want to explain the normative order by
which states adopt international sanctions against individuals and/or
states which have threatened international security and/or violated
agreed-upon rules. We start from the assumption that sanctions are
better thought of as bodies of norms and practices, also known as
‘sanctions regimes’.12 These sanctions regimes have long been elaborated
at the intersection of various bodies of law, both at the domestic and
international levels, which deﬁne principles related to the responsibility
of states and/or norms ensuring the protection of human rights. For

8
M. Foucault, Discipline and Punish: The Birth of the Prison (Vintage, 1995).
9
Alter and Raustiala, ‘The Rise of International Regime Complexity’.
10
T. C. Halliday and G. Shaffer, Transnational Legal Orders (Cambridge University Press,
2015); D. Halberstam and E. Stein, ‘The United Nations, the European Union, and the
King of Sweden: Economic Sanctions and Individual Rights in a Plural World Order’
(2009) 46 Common Market Law Review 13–72.
11
M. Koskenniemi and P. Leino, ‘Fragmentation of International Law? Postmodern
Anxieties’ (2002) 15 Leiden Journal of International Law 553–79.
12
T. J. Biersteker, S. E. Eckert and M. Tourinho, ‘Thinking about United Nations Targeted
Sanctions’, in T. J. Biersteker, S. E. Eckert and M. Tourinho (eds), Targeted Sanctions: The
Impacts and Effectiveness of United Nations Action (Cambridge University Press, 2016),
pp. 11–37.

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     
instance, the notion that innocent civilians should not suffer from the
application of sanctions was translated in the United Nations Security
Council (UNSC) sanctions regimes that were once ‘comprehensive’ and
showed little respect to the human rights of populations in sanctioned
areas, and that have become more targeted – or, in other words,
‘smarter’.13 This ‘miniaturization’ of UN sanctions began with various
sanctions against conﬂict actors in Africa in the late 1990s and early
2000s, and it was further developed with the well-known sanctions
regimes against Iran and North Korea, at least in their earlier stages in
the 2000s. These processes occurred according to different temporalities
and scales depending on where they were located.
This chapter argues that, on the one hand, the developments that have
affected the sanctions regime have strengthened the normative coherence
of the UN system of norms and rules, giving it more legitimacy and
unity. The new UNSC sanctions regime was indeed greeted as a recon-
ciliation of the UNSC’s main responsibility to safeguard international
peace and security with better respect for other pillars of international
law and the UN, namely human rights, which include the right to access
vital goods such as food or medical care.14 On the other hand, it remains
to be seen whether new contradictions have not also spurred from some
of the latest developments in the broader ‘sanctions regime’, which not
only includes the UNSC sanctions but also multiple domestic sanctions
regimes, in particular in the United States and Europe. In contrast to the
story of a clear paradigmatic shift characterized by the emergence of a
new ‘targeted sanctions’ paradigm, relegating to the dustbin of history all
previous forms of comprehensive sanctions that clashed with other UN
norms, we explain how, particularly in counter-proliferation sanctions,
contradictions persisted in the legal entanglements between targeted and
comprehensive logics and in overlapping multilateral and domestic legal
sources of sanctions. We further explain why the presence of such
contradictions in counter-proliferation regimes has gone largely
unnoticed by ‘targeted sanctions’ designers and advocates who do not
use the notion of ‘legal entanglement’.15

13
D. W. Drezner, ‘How Smart Are Smart Sanctions?’ (2003) 5 International Studies Review
107–10.
14
E.g., Article 25 of the Universal Declaration of Human Rights.
15
J. J. Lew and R. Nephew, ‘The Use and Misuse of Economic Statecraft: How Washington
Is Abusing Its Financial Might’ Foreign Affairs (November/December 2018), 139–49.

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      ? 
In this chapter, we will thus show the heuristic power of the notion of
‘legal entanglement’ when applied to the evolution of global sanctions
regimes in the last thirty years. To demonstrate how targeted sanctions
regimes in the field of counter-proliferation are best analysed as ‘legal
entanglements’ between targeted and comprehensive logics, as well as
between multilateral and unilateral regimes, the chapter proceeds in three
parts. In Section 9.2, we show how a discourse on the ‘targetedness’ of
sanctions was promoted by sanctions entrepreneurs, policy experts and
international governmental and non-governmental organizations in the
context of the ‘War on Terror’ during which sanctions increasingly
targeted specific individuals listed by states for their association with
non-state networks of terrorists, namely Al Qaeda, the Taliban and later
ISIS. In Section 9.3, we show how the multilateral machinery that was
created in the context of counter-terrorism initiatives, especially under
the aegis of the UNSC, extended its reach to the field of counter-
proliferation, when specific sanctions committees modelled after the Al
Qaeda Sanctions Committee were created in the UNSC to monitor UN
member states’ compliance with new UNSC Resolutions (UNSCRs) that
targeted the Democratic People’s Republic of Korea (DPRK) and Iran’s
sanctioned nuclear activities. In Section 9.4, we show how, during the
early 2010s, the targeted sanctions that the UNSC imposed on the DPRK
and Iran were ‘comprehensivized’. This process of comprehensivization,
we show, followed different pathways: the comprehensivization of UNSC
sanctions occurred either directly at the level of the UNSC (as in the case
of the DPRK), or indirectly (as in the case of Iran), because of the
entanglement between UNSC sanctions with the comprehensive logic
of domestic sanctions adopted in a unilateral fashion by the United States
and the European Union. This was the case regardless of claims by the
USA, and especially by the EU, that their ‘multilateral restrictive meas-
ures’ (as sanctions are called in EU parlance) did not amount to compre-
hensive measures.
Our analysis shows that the legal entanglements between targeted and
comprehensive logics that traverse the global sanctions regimes rest on a
few core mechanisms. These mechanisms include the assertion of judicial
authority by US regulators over the world’s financial transactions
denominated in US dollars; the use of instruments that designated central
actors within designated jurisdictions (in particular, the central banks of
sanctioned states); and the ambiguity of the concept of ‘risk’ held by
global financial actors, which allowed financial institutions to adopt a
‘zero-risk’ approach when it came to the implementation of financial

9.2 The Creation of the UNSC Counter-Terrorist Sanctions

Regime and Its Extension to the Field of Counter-Proliferation:
A Case of Isomorphism?
The application of sanctions is not new, as states have long agreed upon
historically speciﬁc appropriate responses against threats to peace and
security as well as violations of international norms and rules.18
However, the move towards targetedness appears to be a more recent
phenomenon, spurred by the UNSC’s efforts to respond to recent crises,
taking advantage of equally recent phenomena, such as the new infor-
mation technologies that facilitate the identiﬁcation of individual
targets,19 the acceptability of designating non-state actors as subjects of
international law and the desire of the international community to
protect innocent civilians during responses against state and non-state
perpetrators.
The global push towards more coherence in the UN system of norms
that affected the design and monitoring of sanctions at the UNSC came
with the realization that, after the Cold War, comprehensive sanctions

16
G. Mallard, ‘Governing Proliferation Finance: Multilateralism, Transgovernmentalism
and Hegemony in the Case of Sanctions against Iran’, in E. Brousseau, J.-M. Glachant
and J. Sgard (eds), Oxford Handbook of Institutions of International Economic
Governance and Market Regulation (Oxford University Press, 2019).
17
A. Riles, ‘Models and Documents: Artifacts of International Legal Knowledge’ (1999) 48
International and Comparative Law Quarterly 805–25.
18
M. Finnemore, The Purpose of Intervention: Changing Beliefs about the Use of Force
(Cornell University Press, 2004).
19
M. de Goede and G. Sullivan, ‘Introduction: The Politics of the List’ (2016) 34
Environment and Planning D: Society and Space 3–13; for a comprehensive review of
the legal and technical developments in the UNSC counter-terrorism sanction regime, see
G. Sullivan. The Law of the List: UN Counterterrorism Sanctions and the Politics of Global
Security Law (Cambridge University Press, 2020).

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      ? 
proved too devastating in a less divided world. From 1945 until 1989, the
world was divided into trading blocs; thus, a country that was excluded
by one bloc could still trade with the other bloc. Therefore, ‘sanctions’ in
the sense of trading restrictions applied by the West for instance may
have been comprehensive in design, but never fully sealed off a country.
Furthermore, the UNSC sanctions that were adopted in 1966 against
Rhodesia, and in 1977 against South Africa, were limited to arms embar-
goes. This changed with the end of the Cold War. In 1990, the UNSC
unanimously imposed comprehensive sanctions on Iraq after Saddam
Hussein’s invasion of Kuwait. While these sanctions were modelled on
the initiative of the West, in particular the USA, they were backed by
universal condemnation of the Iraqi act of aggression. These sanctions
initially consisted of an embargo against all Iraqi imports and exports
and were to be applied by all UN member states. Their effects were
drastic and counterproductive: even though exemptions on food and
medical supplies were gradually introduced, the impact on the civilian
population was devastating, while hardly hurting – or, by some accounts,
even strengthening – Saddam Hussein’s regime.20 This paradigmatic case
of comprehensive sanctions convinced the international community to
move towards a targeted design of sanctions to avoid hurting civilians in
sanctioned territories.21
In the following years (i.e. the late 1990s and early 2000s), a ‘trans-
national policy network’ of diplomats, national politicians and academics
promoted these targeted sanctions, consisting of tools such as assets
freezes, travel bans, sectoral economic restrictions and arms embargoes.22
These targeted sanctions became the only type of sanctions imposed by
the UNSC since, with early applications responding to internal armed

20
D. Cortright and G. A. Lopez, The Sanctions Decade: Assessing UN Strategies in the 1990s
(Lynne Rienner, 2000); J. Gordon. Invisible War: The United States and the Iraq Sanctions
(Harvard University Press, 2012).
21
M. W. Reisman and D. L. Stevick, ‘The Applicability of International Law Standards to
United Nations Economic Sanctions Programmes’ (1998) 9 European Journal of
International Law 86–141.
22
T. J. Biersteker, ‘Scholarly Participation in Transnational Policy Networks: The Case of
Targeted Sanctions’, in M. E. Bertucci and A. F. Lowenthal (eds), Narrowing the Gap:
Scholars, Policy-Makers and International Affairs (Johns Hopkins University Press, 2014),
pp. 137–54.

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     
conflicts in Angola, Sierra Leone, and Liberia in the late 1990s and early
2000s.23 Since then, as a sign of the normative appeal of targeted sanc-
tions, human rights organizations – staunch critics of the comprehensive
sanctions against Iraq – have repeatedly called for the imposition of
targeted sanctions in the context of various civil wars.24 Consequently,
academic literature on sanctions has usually spoken of a clear break
between the comprehensive Iraq sanctions and the post-Iraq era of
‘targeted sanctions’,25 whose coherence with the broader system of UN
norms is emphasized by many.26
In the late 1990s and early 2000s, a series of large-scale terrorist
attacks – most prominently 9/11 – pushed states to confront trans-
national non-state groups as significant threats to their security. The
ensuing War on Terror involved UN targeted sanctions that were similar
in their formal setup to the peacebuilding sanctions put in place in
response to African civil wars, but came with longer lists of targeted
individuals and entities. As a further difference, while early peacebuilding
sanctions included sectoral trade embargoes (such as diamonds), the
targets of counter-terrorism sanctions were too amorphous for such
measures. Instead, these sanctions regimes relied chiefly on financial
measures and travel bans. During the 2000s, under the stimulus of the
UNSC, the financial sector thus became heavily mobilized in the quest
for more efficiency and more targetedness in the fight against individual
terrorists linked to Al Qaeda.27 The range of measures imposed on those
individuals who were added to the list of identified terrorists were (and
continue to be) forceful, including asset freezes and the systematic
screening of all cross-border transactions. Immediately after 9/11, the
United States – and then the UNSC – asked the financial sector to help
them with implementing this targeted logic with measures to counter the

23
D. Cortright and G. A. Lopez, ‘Introduction: Assessing Smart Sanctions: Lessons from the
1990s’, in D. Cortright and G. A. Lopez (eds), Smart Sanctions: Targeting Economic
Statecraft (Rowman & Littleﬁeld Publishers, 2002), pp. 1–22.
24
A. Niederberger, ‘Expert Networks and the Emergence of Practice in UN Arms Embargo
Monitoring’, Paper presented at EISA PEC 2019 (2019).
25
Biersteker, Eckert and Tourinho, ‘Thinking about United Nations Targeted Sanctions’; E.
Solingen, Sanctions, Statecraft, and Nuclear Proliferation (Cambridge University Press,
2012).
26
R. Nephew, The Art of Sanctions: A View from the Field (Columbia University Press,
2017).
27
J. Zarate, Treasury’s War: The Unleashing of a New Era of Financial Warfare (Hachette,
2013).

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      ? 
financing of terrorism (CFT). This request inspired new conceptions,
practices and technologies.28 For instance, before 9/11, banks conceived
of financial fraud as a problem of organized crime and corruption and
used almost no digital technology to detect such fraud among their
clients; after 9/11, however, financial watchdogs and software companies
offered their techniques as weapons in the War on Terror, enabling
identification and blocking of specific transactions, as well as automatic
freezing of the money held in suspicious accounts.29 It was, therefore, as
part of the War on Terror that targeted financial measures were devised
and implemented on a large scale.30
Thus, after targeted sanctions were initially designed as a response to
the costly impact of comprehensive sanctions against Iraq (as explained
earlier in this section), the War on Terror played an important role in
further developing and promoting this tool. Throughout the years, the
UNSC made a consistent effort to keep the sanctions directed at the right
targets and not to harm innocent civilians by constantly improving the
technical characteristics of its mode of designation. For instance, the
UNSC sought to specify the identities of targeted terrorists with enough
detail to prevent banks from unintentionally applying the penalties
against ‘false positives’ (i.e. entities or individuals who are mistakenly
identified as sanctioned actors because their names coincide with names
on the sanctions list). After international pressure and legal conflicts in
European countries, the UNSC also created the office of the
‘Ombudsperson’ which gives listed individuals the possibility to appeal
for delisting by demonstrating that they no longer meet the listing
criteria.31 The ‘politics of lists’32 and financial surveillance thus became
intrinsic parts of the logic of targetedness that was developed in the new
War on Terror, first within the Bush administration and later by the
international community at the UNSC level.

28
See Sullivan, The Law of the List.
29
G. Mallard and A. Hanson, ‘Embedded Extra-Territoriality: US Judicial Litigation and the
Global Banking Surveillance of Digital Money Flows’, in C. Beaucillon (ed.), Research
Handbook on Unilateral and Extraterritorial Sanctions (Edward Elgar, 2021), pp. 269–86.
30
M. S. Navias, ‘Finance Warfare as a Response to International Terrorism’ (2002) 73 The
Political Quarterly 57–79.
31
M. de Goede and G. Sullivan, ‘Between Law and the Exception: The UN
1267 Ombudsperson as a Hybrid Model of Legal Expertise’ (2013) 26 Leiden Journal of
International Law 833–54.
32
De Goede and Sullivan, ‘Introduction: The Politics of the List’.

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     
New actors entered the domain of CFT, as counter-terrorism sanctions
incited new cooperation (or intensified existing cooperation) between
member states’ bureaucracies (notably intelligence agencies and treasury
departments), private companies (especially airline companies and global
banks) and international organizations.33 Prominent among the last of
these was the Financial Action Task Force (FATF): an international
organization of like-minded states that was established at a G7 summit
in 1989 with the mandate to ‘examine and develop measures to combat
money laundering’.34 In October 2001 – in the aftermath of 9/11 – the
FATF mandate was then extended from anti-money laundering (AML)
to CFT, leading to FATF’s entry into the field of international security;
as we show in Section 9.3, the mandate was later expanded to include
counter-proliferation finance (CPF). It wasn’t so much the FATF staff
which lobbied to be entrusted with these security-related tasks, as at that
time it possessed little expertise and credentials in international security.
However, according to policy insiders we interviewed, the member states
deemed it preferable to entrust a small organization, largely dependent
upon member state intel, with the tasks of improving CFT strategies and
helping the UNSC enrol the banking sector in its fight against terrorists.
The FATF worked hard to empower member states with ‘better’
legislation through the diffusion of best practices or model law in
AML, CFT or CPF fields, as well as to provide private financial insti-
tutions with knowledge about typical money-laundering and terrorism-
financing schemes.35 As such, the UNSC and the FATF have cooperated
in the elaboration of a logic of targetedness in the design of counter-
terrorism sanctions. In parallel, in the UNSCRs against Iran (for instance,
in UNSCR 1803),36 the UNSC started to make explicit references to and
praise the work of the FATF, and called on all governments to push
legislation addressing financial sector reform that would enable banks

33
See Mallard, ‘Governing Proliferation Finance’.
34
The FATF is an organization with strong expert authority and little legal authority as it
only counts thirty-seven state members (as of 2020, up from thirty-four in 2008) and two
regional organizations (the European Commission and the Gulf Co-operation Council)
among its members. Monitoring and enforcement mechanisms are restricted to its
member states, on the basis of the yearly questionnaire that FATF member states conduct
as self-evaluations of their implementation of the FATF’s core principles (namely its forty
general recommendations and its nine recommendations to counter the ﬁnancing of
terrorism), and on the basis of periodic mutual evaluations, see J. Johnson, ‘Is the Global
Financial System AML/CFT Prepared?’ (2008) 15 Journal of Financial Crime 7–21.
35
FATF, ‘Typologies Report on Proliferation Financing’ (18 June 2008).
36
UNSC Res 1803 (3 March 2008) UN Doc S/RES/1803.

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      ? 
and other private financial operators to fully cooperate with the creation
of the new system of targeted sanctions. All international organizations
with a stake in the global sanctions regimes have thus seemed to converge
towards the same goals, well in line with broader UN norms.
When applied against ‘pariah’ states designated by the Bush adminis-
tration in 2003 – in this case, Iran and the DPRK – the same logic of
targetedness that shaped the design of counter-terrorism sanctions meant
that new counter-proliferation sanctions would also avoid hurting the
civilian populations who were not responsible for the undeclared nuclear
programmes.37 After Iran’s file was sent from the International Atomic
Energy Agency (IAEA) Board of Governors to the UNSC in 2006, as well
as after the UNSC passed sanctions against the DPRK in the wake of its
first nuclear test in 2006, the UNSC adopted successive rounds of sanc-
tions against both countries that were targeted rather than comprehen-
sive in scope, and discriminatory rather than non-discriminatory in
nature.38 Their targeted nature was exemplified by the specific designa-
tion of companies and individuals allegedly associated with Iran’s or the
DPRK’s nuclear programmes. These entities were systematically listed
in the appendices of each of the UNSCRs targeting the two countries –
just like the UNSC Al Qaeda sanctions listed scores of names associated
with the terrorist network.
In the case of Iran, for instance, UNSCR 1737, passed in December
2006, banned the supply of specific goods (e.g. nuclear-related material)
to Iran and froze the assets of specific individuals and companies associ-
ated with Iran’s hidden centrifuge programme.39 Similarly, UNSCR 1929,
passed in June 2010, only called upon states to exercise vigilance over the
transactions of the assets of entities associated with the procurement of
illicit goods, such as members of the Iranian Revolutionary Guard Corps
listed in its Annex II.40 The same logic of targetedness characterized UN
sanctions against the DPRK, at least until the end of the Obama presi-
dency, whose focus was on negotiations with Iran rather than the DPRK.
Therefore, the UN counter-proliferation sanctions were indeed initially
devised as targeted sanctions.

37
G. Mallard, ‘Antagonistic Recursivities and Successive Cover-Ups: The Case of Private
Nuclear Proliferation’ (2018) 69 The British Journal of Sociology 1007–30.
38
Zarate, Treasury’s War.
39
UNSC Res 1737 (23 December 2006) UN Doc S/RES/1737.
40
UNSC Res 1929 (9 June 2010) UN Doc S/RES/1929.

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     
The institutionalization of the logic of targetedness in the domain of
counter-proliferation was facilitated by the UNSC’s cooperation with
other international organizations and by intertextuality and cross-
referencing across various actors. As with the counter-terrorism sanc-
tions, the UNSC worked in tandem with other organizations, again
notably with the FATF.41
The UNSC passed UNSCR 1803 in 2008, which commended the
guidelines issued by the FATF that same year with regard to the detection
of suspicious activities in proliferation finance.42 UNSCR 1803 ‘called
upon’ all states to exercise ‘vigilance’ regarding activities of financial
institutions in their territory with banks domiciled in Iran ‘in order to
avoid such financial support contributing to the proliferation sensitive
nuclear activities’ (para. 10), and to report to the UNSC’s Sanctions
Committee on Iran the steps undertaken to this end.
The UNSC and the FATF thus incentivized states and banks to work
towards a decentralized and autonomously targeting financial system, in
which private and public financial institutions are individually respon-
sible for establishing mechanisms to ensure compliance with sanctions
regimes. In principle, these institutions remained committed to the same
logic of targetedness: both FATF documents and UNSCRs promoted
specific measures (like ‘enhanced due diligence’ protocols) that global
banks could adopt in order to conduct proper calculations of the risk of
certain activities of their clients being related to Iran’s sanctioned nuclear
activities. Banks should only prevent those activities if the risk was
substantial. As described in interviews we conducted with US sanctions
specialists, such intertextuality and cross-referencing were strengthened
due to the fact that the same experts (largely Western experts, in particu-
lar those working on sanctions in the US State and Treasury

41
The first important FATF report on counter-proliferation financing was published in
2008, although according to its website, it was only in 2012 that combating proliferation
finance was added to the FATF’s mandate (www.fatf-gafi.org/about/whatwedo/).
42
In the context of the DPRK, it was only in 2013 that UNSCR 2094 referred to the FATF,
when it ‘welcomed’ the FATF’s recommendation 7 and the interpretative note along with
that recommendation, which was newly added to the list of FATF recommendation in
2012. The recommendation simply calls upon states to implement targeted sanctions in
compliance with UNSCRs. As the UNSC ‘urged’ states to apply this recommendation
(more precisely, the FATF’s interpretive note on the recommendation), it did so only in
the preamble of the UNSCR, that is, not as a binding Chapter VII measure. The UNSC
reinforced this call three years later, in 2016, and now in the decision part of the
resolution (UNSCR 2270 from 2016, para. 38), still referring, however, only to recom-
mendation 7 and using the less binding expression to ‘call upon’ states.

9.3 The Internal Dynamics Driving the Gradual

Comprehensivization of Sanctions: The Role of
Panels of Experts
Some analysts may argue that counter-terrorism sanctions, and most
notably the ﬁnancial measures they entailed, buttressed the normative

43
G. Mallard, F. Sabet and J. Sun, ‘The Humanitarian Gap in the Global Sanctions Regime:
Assessing Causes, Effects and Solutions’ (2020) 26 Global Governance: A Review of
Multilateralism and International Organizations 1–33.
44
OHCHR, ‘Research-Based Progress Report of the Human Rights Council Advisory
Committee Containing Recommendations on Mechanisms to Assess the Negative
Impact of Unilateral Coercive Measures on the Enjoyment of Human Rights and to
Promote Accountability’ (10 February 2015) UN Doc A/HRC/28/74; OHCHR, ‘Report
on the Negative Impact of Unilateral Coercive Measures on the Enjoyment of Human
Rights’ (30 August 2018) UN Doc A/HRC/39/54.

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     
standard of hitting those responsible while avoiding costs for innocent
civilians.45 However, we argue that those sanctions also entailed a redir-
ection of intervention practices, new types of expertise, technologies and
cooperative engagements that amounted to a loss of control in how
UNSC sanctions were to be implemented by the private parties (global
banks especially) in charge of blocking financial transactions on the basis
of suspicion rather than a demonstrated relation to the nuclear pro-
grammes of Iran or North Korea. In this section, we want to show how
the logic of targetedness that the UNSC and FATF inscribed in the
regulation of counter-proliferation finance was gradually entangled with
a logic of comprehensiveness.
The UNSC’s innovative approach to targeted sanctions went well
beyond the publicization of lists of names of suspected terrorists and
nuclear proliferators, and the description of their financial practices,
found in the documents voted upon by fifteen UNSC and thirty-seven
FATF member states. The powerful states behind the edification of the
new sanctions regimes called for implementation by all states and for
cooperation by private actors around the world (such as global banks and
airline companies), asking them to deeply reform their compliance
systems in order to catch suspicious transactions. It is thus important
to understand UN sanctions and FATF recommendations not simply as
an attempt by the UNSC or FATF to reign in one specific actor (Al Qaeda
and its individual affiliates, or the individual companies and persons
related to the nuclear programmes of Iran and the DPRK), but as an
attempt to govern states – all of them – and to convince them to reform
their banking sectors so as to ensure that they can detect suspicious
transactions and freeze the assets of terrorists and suspected nuclear
proliferators in seconds, without hurting the rest of their population.
Here is, thus, a particular mélange of international and transnational
logics inherent to targeted sanctions, as they target non-state actors
through addressing state jurisdictions. States were furthermore not just
asked to inhibit certain flows of finances, goods and people, but to change
their domestic financial regulations more broadly. This focus on broader
financial regulations was likely promoted by the FATF, as the FATF is
less concerned with individual security threats such as those emanating
from Al Qaeda, Iran or the DPRK, and more with systematic patterns
and risks of abusing the financial system. These more systematic

45
Zarate, Treasury’s War.

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      ? 
concerns were increasingly integrated into UNSC resolutions, asking all
UN member states to change their domestic jurisdictions.
These demands contain the seed of a ‘comprehensivization’ of sup-
posedly targeted sanctions, as banks worldwide were pushed by the
UNSC and FATF (through the pressure these two international organiza-
tions placed on governments) to become part of a larger governance
infrastructure, whose algorithms automatically hooked the compliance
departments of global banks to the listing decisions of the UNSC and
other entities. Even though the UNSC itself remained rather conservative
with regards to listing individuals (its list of targeted terrorists containing
about 350 individuals/entities), its regulations contributed to a dynamic
of ever-growing lists and their almost automatic adoption by global
banks: the targeting is supposed to become decentralized and automa-
tized at a systematic level, a far cry from the few handpicked, high-profile
targets of the early peacebuilding sanctions whose evolution remained
heavily centralized in the hands of the UNSC.
The banking reforms adopted by the UNSC and FATF have led to the
creation of a system of private ‘algorithmic governance’46 which led to
eternally growing lists that were supposed to capture a fluid enemy. Given
the fluidity of this non-state enemy, the asset-freezing measures could
never be called ‘comprehensive’: soon, private companies such as World-
Check proactively identified targets on their own and sold these listings to
global banks.47 As many compliance officers working in the banking sector
told us in the context of a large-scale interviewing campaign conducted
between 2017 and 2019, once individuals are on a list sold by compliance
software companies to banks, they will remain black-listed by some banks
for the rest of their lives, even if their name is later removed from listings
due to the decision of a court or the UNSC ombudsperson. The exclusion
of individuals has also become maximalist because private companies have
tended to pile up names from not only UNSC listings, but also all the
domestic lists that states from all over the world publicize, rarely having
the means of checking in which jurisdictions any given individual is listed
and therefore just applying all lists globally.

46
F. Pasquale, The Black Box Society (Harvard University Press, 2015); M. Ziewitz,
‘Governing Algorithms: Myth, Mess, and Methods’ (2016) 41 Science, Technology &
Human Values 3–16; S. U. Noble, Algorithms of Oppression: How Search Engines
Reinforce Racism (New York University Press, 2018); C. Katzenbach and L. Ulbricht,
‘Algorithmic Governance’ (2019) 8 Internet Policy Review, https://doi.org/10.14763/2019
.4.1424.
47
De Goede and Sullivan, ‘Introduction: The Politics of the List’.

48
E. Rosand, ‘The Security Council as Global Legislator: Ultra Vires or Ultra Innovative
United Nations and the Law of War’ (2004) 28 Fordham International Law Journal
542–90; K. L. Scheppele, ‘The Migration of Anti-Constitutional Ideas: The Post-9/11
Globalization of Public Law and the International State of Emergency’, in S. Choudhry
(ed.), The Migration of Constitutional Ideas (Cambridge University Press, 2007),
pp. 347–73; N. Krisch, ‘International Law in Times of Hegemony: Unequal Power and
the Shaping of the International Legal Order’ (2005) 16 European Journal of International
Law 369–408; N. Krisch, ‘Decay of Consent: International Law in an Age of Global Public
Goods’ (2014) 108 American Journal of International Law 1–40.
49
UNSC Res 1874 (12 June 2009) UN Doc S/RES/1874, para. 26.
50
For Iran, each of the E3+3 (or, in the language of the UN, the P5+1) sends one expert; for
the DPRK, each of the member states involved in the Six Party talks sends one expert,
plus one further member. In addition, one panel member from a non-aligned country is
added to both panels.

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      ? 
who adopt a maximalist interpretation of the UNSCRs, which come
closer to the views of the P3, and others who take a minimalist
interpretation closer to the souverainism of Russia and China. It
should be noted that, despite their formal independence, many PoE
members hold a background in national ministries or agencies and
sometime maintain close contacts with their country representatives in
New York or even with their capital throughout the mandate, and
interpret sanctions violations in accordance with their capital’s view.51
As for PoE members from P3 countries, this also entails closer direct
or indirect ties to other multilateral institutions which hold similar
views, like the FATF, or with like-minded think tanks specialized
in the monitoring of the global arms trade or illicit finance, like the
Stockholm International Peace Research Institute or the International
Crisis Group. In their daily practice as PoE members, they are entitled
to escape the logic of pure diplomatic negotiation by checking infor-
mation that they obtain through personal networks and then pushing
for factual consensus on such sensitive issues as sanctions implemen-
tation, enforcement, and redress.52
In the field of CPF, PoEs and the FATF have reinforced each other,
mutually ‘enhanc[ing] their own position by linking up with bodies of
norms produced by other, reputed institutions’.53 In so doing, they
elaborated and universally promoted a set of financial rules that origin-
ated in Western states and was diffused by the P3 to the rest of the world.
To begin with, PoE reports – which are submitted to the UNSC and
made public – regularly refer to FATF reports: for example, the section
on financial sanctions in the first report of the DPRK PoE mostly just
reprinted the heuristics on money laundering from a 2008 FATF report.
Already in its first report on the DPRK sanctions, the PoE recommended
that ‘[a]ll Member States should be encouraged to adopt and implement
the non-proliferation and anti-money-laundering/combating the finan-
cing of terrorism guidelines published by FATF’ (DPRK S/2010/571,

51
This accounts for the DPRK PoE and the Iran PoE (prior to the JCPOA), rather than the
PoEs responsible for African regimes, see: A. Niederberger, ‘Independent Experts with
Political Mandates: “Role Distance” in the Production of Political Knowledge’ (2020) 5(3)
European Journal of International Security 350–71.
52
A. Niederberger, ‘Investigative Ignorance in International Investigations: How United
Nations Panels of Experts Create New Relations of Power by Seeking Information’ (2018)
69 The British Journal of Sociology 984–1006; Niederberger, ‘Independent Experts with
Political Mandates’.
53
See Chapter 1.

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     
recommendation 15).54 We should assume that the term ‘member states’
refers to UN member states here (as it usually does in PoE reports), not
to FATF member states, meaning that the PoE recommended that states
adopt FATF guidelines even if they are not a member of the organization.
Another illustrative example concerns measures against front com-
panies, which have frequently been used to circumvent sanctions: front
companies have been repeatedly problematized in FATF reports,55 but
remained largely ignored by UNSCRs, with the minor exception of a few
designations of front companies in UNSCR 1803 on Iran.56 However,
after the DPRK PoE recommended more systematic measures be force-
fully undertaken against front companies (S/2015/131, recommendation
B7),57 the issue was addressed more systematically in UNSCRs (from
UNSCR 2270/2016).58 This process of cross-citation shows how UNSC
permanent member states, like the United States, the United Kingdom or
France, who place a lot of attention on the work of the FATF, can
leverage the work of PoEs to raise the relevance of certain issues related
to sanctions implementation, CFT or CPF in the global international
security agenda; and how they can use the UNSC and its complex insti-
tutional architecture to commend FATF recommendations at multiple
levels.
PoEs have played another important role by increasing the frequency
of the monitoring and evaluation of national ﬁnancial sanctions adopted
by the UNSC. PoEs have sometimes gone beyond the FATF, which has a
relatively thorough monitoring mandate involving eighteen-months of
mutual evaluations, but at distant intervals – every ﬁve years or so. In
contrast, PoEs conduct all-year-long, more or less independent investi-
gations of any UNSC sanctions breaches reported by states, and issue up
to two reports per year. Through their monitoring activities, the FATF
and the PoEs participate in strengthening the expert belief that new
‘targeted’ sanctions always need to be added to past rounds of sanctions,
according to a logic of a continuous progress in the detection of new

54
UNSC, ‘Letter Dated 12 May 2010 from the Panel of Experts Established Pursuant to
Resolution 1874 (2009) Addressed to the President of the Security Council’ (5 November
2010) UN Doc S/2010/571.
55
FATF, ‘Typologies Report on Proliferation Financing’.
56
See UNSC Res 1803.
57
UNSC, ‘Letter Dated 23 February 2015 from the Panel of Experts Established Pursuant to
Resolution 1874 (2009) addressed to the President of the Security Council’ (23 February
2015) UN Doc S/2015/131.
58
UNSC Res 2270 (2 March 2016) UN Doc S/RES/2270.

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      ? 
types of practices and actors associated with illicit finance and sanctions
violations. Whereas new measures are usually only added to an existing
sanctions regime in response to actions that threatened international
security and/or constitute a serious breach of the existing sanctions
regime, PoE reports are routinely suggesting new targets to existing
sanctions, based on the discovery of new methods or actors of sanctions
evasion. With the precise enumeration of verified violation cases by PoEs,
and the submission of their documentation to the scrutiny of the UNSC
and its Sanctions Committees, the PoEs diffuse the view that new sanc-
tions designations shall always improve the system of ‘targetedness’ and
perfect the sanctions regimes already in place. Typical demands in PoE
reports on the DPRK, for instance, are to close down new shell com-
panies and new circuits of exchange (from cash economies to hawalas or
networks exchanging digital currencies), which are created by prolifer-
ators in response to past rounds of targeted sanctions. PoEs not only seek
to verify the validity of leaked intelligence and public information on new
sanctions evasion techniques, but also lobby the UNSC member states to
pass new rounds of sanctions meant to close the observed loopholes.
Whether such an accumulation of targets leads to the progressive com-
prehensivization of sanctions or whether they can remain targeted in
scope and discriminatory in nature is the question that we assess in
Section 9.4.
Some examples illustrate how PoEs have encouraged states to go
beyond the explicit requirements of UNSCRs and leave the ethos of
diplomatic prudence in favour of a more expert-based justification for
independent monitoring and forceful implementation of all of the
UNSCRs’ obligations and recommendations by UN member states. For
instance, the UNSC decided in 2013 that member states shall prevent
transfer of bulk cash through/to/from their territories if it ‘could contrib-
ute to the DPRK’s nuclear or ballistic missile programmes, or other
activities prohibited by resolutions’ (2094/2013 para. 11, emphasis added;
UNSCR 2270 subjected gold transports to the same measures).59 The
term ‘could’ is ambiguous and may invite very broad interpretations, but,
if interpreted along a logic of targetedness, the measures should refer to
cases with a credible risk that the gold/cash is being used for prohibited
purposes. However, the wording suggests a broader interpretation, rec-
ommending that smuggled bulk cash or gold by DPRK nationals should

59
UNSC Res 2094 (7 March 2013) UN Doc S/RES/2094, para. 11.

60
PoE reports gave extensive evidence of sanctions evasions through the smuggling of cash
and gold and that the PoE should thus feel a responsibility to propose counter-measures;
likewise, the same report containing those recommendations stated that such contraband
is frozen only exceptionally by states anyways; see UNSC, ‘Letter Dated 17 February 2017
from the Panel of Experts Established Pursuant to Resolution 1874 (2009) Addressed to
the President of the Security Council’ (27 February 2017) UN Doc S/2017/150.
61
UNSC Res 2321 (30 November 2016) UN Doc S/RES/2321, para. 16.
62
UNSC, ‘Letter Dated 28 August 2017 from the Panel of Experts Established Pursuant to
Resolution 1874 (2009) Addressed to the President of the Security Council’ (5 September
2017) UN Doc S/2017/742.
63
UNSC, ‘Letter Dated 1 March 2018 from the Panel of Experts Established Pursuant to
Resolution 1874 (2009) Addressed to the President of the Security Council’ (5 March
2018) UN Doc. S/2018/171, para. 210, recommendation 3.
64
Ibid.
65
UNSC, ‘Letter Dated 21 February 2019 from the Panel of Experts Established Pursuant to
Resolution 1874 (2009) Addressed to the President of the Security Council’ (5 March
2019) UN Doc S/2019/171, para. 161.
66
UNSC, ‘Letter Dated 21 February 2019 from the Panel of Experts’, para. 162.

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      ? 
institutions not to open accounts for diplomats of the Democratic
People’s Republic of Korea who are not accredited to their country’,67
based on the finding that North Korean embassies have served as
traditional conduits of illicit financing. Still, if DPRK diplomats are
prohibited, per UNSCRs, from holding more than one bank account, it
lies in the discretion of the UNSC and its Sanctions Committee to
designate any third-party individual assisting in the violation of this
rule and there is, as of now, no UNSCR demanding that banks target
family members of diplomats or that diplomats should not be allowed
to choose a bank of their preference. The PoE thus recommends states
to prevent sanctions evasions by recommending additional sanction-
ing measures that are not asked for by the UNSC. This is the very logic
of illicit finance expertise that PoE members have endorsed.
A last example shows how private financial actors, too, can respond
to the recommendations of the PoEs. In its 2017 report, the PoE on
DPRK sanctions remarked that the Society for Worldwide Interbank
Financial Telecommunication (SWIFT) maintained in its system
North Korean banks that were designated for special attention by
the UNSC.68 As SWIFT is (only) the messenger between banks
exchanging value through its system, and to the extent that banks
are supposed to conduct the risk analysis related to specific payments
(depending on a range of criteria), SWIFT’s decision to keep these
banks in its system may not have appeared a case of violation of the
new UNSCR to its managers. Indeed, SWIFT provides the infrastruc-
ture that allows money to flow between accounts, and it leaves to those
using that messaging infrastructure and ordering the money move-
ments (e.g. banks sending messages through SWIFT) the responsibility
to comply with the rules of UNSC, EU and US sanctions, and any
other local systems of sanctions that may apply. This view of SWIFT’s
neutrality, however, was strongly challenged in the run-up to the Iran
nuclear deal, when the P3 repeatedly asked SWIFT to disconnect some
Iranian banks from its system between 2012 and 2015, and yet again
after the USA left the Joint Comprehensive Plan of Action (JCPOA)
after 2018. After the publication of this 2017 DPRK PoE report,
SWIFT cut off the last North Korean banks from its messaging
networks, thus cutting the whole North Korean formal financial

67
Ibid., para. 163.
68
UNSC, ‘Letter Dated 28 August 2017 from the Panel of Experts’.

69
T. Bergin, ‘SWIFT Messaging System Cuts Off Remaining North Korean Banks’, Reuters
(14 March 2017), www.reuters.com/article/us-northkorea-banks/swift-messaging-
system-cuts-off-remaining-north-korean-banks-idUSKBN16N2SZ.
70
Bloomberg, ‘U.S. Sanctions North Korean Hackers for Swift Hack, Wannacry and Other
Cyberattacks that Fund Its Weapons Programs’, Japan Times (14 September 2019), www
.japantimes.co.jp/news/2019/09/14/asia-pacific/u-s-sanctions-north-korean-hackers-
swift-hack-wannacry-cyberattacks-fund-weapons-programs/#.XibZ1L97nq1.
71
Notorious victims include the Bangladesh Bank, whose money (to the amount of US$80
million) held in accounts at the New York Fed, was ordered in 2015 and 2016 to be
transferred to the benefit of DPRK-controlled entities elsewhere (see FireEye, ‘North
Korean Hackers Used Swift Network to Steal More Than $100m – Fireeye’ Finextra (5
October 2018), www.finextra.com/newsarticle/32742/north-korean-hackers-used-swift-
network-to-steal-more-than-100m—fireeye). The fake money orders sent through
SWIFT were impossible to distinguish from real money orders, which exposed vulner-
abilities in the global SWIFT messaging system prior to the release of the 2017 PoE
report. See also S. Pham, ‘North Korea Still Making Millions from Small Arms Exports’
CNN (14 September 2017), https://money.cnn.com/2017/09/14/news/north-korea-small-
arms-trade/index.html.
72
The US judicial authorities are the only ones with such sweeping powers thanks to the
International Emergency Economic Powers Act, which lets them indict persons for
comparably small offenses like giving a conference on Blockchain technology in the
DPRK as an attempt to ‘conspire’ to violate the Act (See J. Brett, ‘Internet Man of
Mystery Virgil Griffith Indicted for Crypto Trip to North Korea’, Forbes (11 January
2020), www.forbes.com/sites/jasonbrett/2020/01/11/internet-man-of-mystery-virgil-grif
fith-indicted-for-crypto-trip-to-north-korea/#2514738d18b0).

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      ? 
when SWIFT decided to cut off the whole financial system of the
DPRK regime from its messaging system.
It is understandable that PoEs would come up with strict interpret-
ations of sanctions implementation, given that they are supposed to
conduct monitoring and see themselves confronted with numerous
violations. What matters in our context, however, is that the PoE
recommends to member states that they take a maximalist interpret-
ation of measures in UNSCRs that is mutually reinforcing with FATF
recommendations and the comprehensive sanctions favoured by the
USA in its campaign for ‘maximum pressure’ against states like Iran
and the DPRK. It is worth emphasizing that the PoEs also formulate
recommendations to the UNSC Sanctions Committees, which the
UNSC Committees then discuss and vote upon. And even if Sanctions
Committees do not act upon these recommendations, today, public and
private authorities use the biannual PoE reports as interpretation guide-
lines for UNSCRs. As a consequence, PoE reports have shaped the
expectations of the financial industry and their willingness to take risks,
as each exchange in goods or financial transaction carries a remaining
risk of inadvertently violating sanctions, should one, for instance, fall
victim to deception or incomplete information. Just like the FATF,
PoEs have continuously stressed that both private and public actors
must be made aware of the importance of adopting a ‘risk-based
culture’.73 But this call for a ‘risk-based culture’ can be interpreted very
differently: either that you should accept that every decision comes with
the risk of making the wrong decision, and that risks are part of life; or
that you should take no risk of making a mistake by authorizing
suspicious payments, especially when the penalty for making the wrong
decision is too high. Clearly, the latter became the dominant interpret-
ation, and this extension of the domain of what can be considered a
‘risky activity’ plays a role in the comprehensivization of sanctions, so
we argue.

73
UNSC, ‘Letter Dated 1 March 2018 from the Panel of Experts’, para. 210 (recommenda-
tion 2): ‘The Panel recommends that Member States, as part of their implementation of
the financial provisions of the resolutions, ensure that their financial institutions imple-
ment a risk-based approach to identifying sanctions violations in their “know-your-
customer” and compliance programmes . . . To that end, Member States should provide
their financial institutions with more detailed and regular information on sanctions
evasion risks.’

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     
9.4 The External Dynamics in the Comprehensivization of
Sanctions: Legal Entanglements between Multilateral and
Domestic Sanctions
If the institutional innovations of the 2000s may give the impression of a
general, sudden and unbeatable adoption of the targeted sanctions para-
digm, and a stark contrast to the comprehensive sanctions against Iraq,
some other trends already highlighted point to the entanglements
between targeted and comprehensive logics as well as multilateral and
unilateral sanctions regimes. One reason for this is that targeted sanc-
tions were embedded in a broader decentralized network of comprehen-
sive domestic prohibitions on any type of trade with certain countries
under UNSC sanctions, especially Iran. We have already identified vari-
ous facilitating dynamics in the entanglement of targeted and compre-
hensive logics at the level of the UNSC, which were most prevalent in the
case of the DPRK, where the ‘maximum pressure’ campaign has been
steered by the UNSC itself.
However, in cases like Iran, the UNSCRs only served to give a legal basis
for sanctions that were otherwise mostly adopted in a unilateral manner,
supposedly to ‘complement’ ‘soft’ UNSCRs that only ‘called upon’ states to
adopt certain financial restrictions. In this case, the decentralization of
targeting practices at the level of the P3, and the ‘deputization’ of sanctions
implementation to Western-led global banks in charge of enforcing finan-
cial sanctions, as well as the inherent tendency of lists to grow74 under the
proactive efforts of private sector vendors of sanctions lists, were much more
influential processes explaining the comprehensivization of UNSC sanctions
than efforts by PoEs and other international organizations like FATF. In
what follows, we focus on a key driver of the entanglement between
comprehensive (domestic) and targeted (UN-based multilateral) logics: a
change in the notion of risk that was particularly fostered by US regulators.
While this section further works out the role of the USA as a key actor in
fostering this entanglement, it also shows how ‘the scope of relevant actors
goes well beyond the governmental [or intergovernmental] sphere’75 by
pointing out the important role of private financial institutions. As the history
of the last ten years of US judicial prosecution of financial crime shows,76

74
De Goede and Sullivan, ‘Introduction: The Politics of the List’.
75
See Chapter 1.
76
G. Mallard and J. Sun, ‘Viral Governance: How the US Unilateral Sanctions against Iran
Changed the Rules of Financial Capitalism’ American Journal of Sociology, under review.

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      ? 
financial institutions have come to adopt a strategy of complete risk aversion
with regards to sanctions under the influence of two important mechanisms:
the adoption of comprehensive sanctions by the United States against Iran
and the DPRK, and the extraterritorial effect of such unilateral sanctions on
multinational companies – even outside the USA. These multinational com-
panies were thus forced to choose between applying those sanctions to their
global activities or facing the risk of exclusion from the US financial sector.
Hence, when considering the risk of imposing comprehensive sanctions on
civilian populations in Iran, global banks weighted another risk: that of being
excluded from the leading world market and losing all of their US revenues.
Furthermore, many of the UNSC sanctions against Iranian businesses
involved prohibitions related to trade finance, and when they were framed
by additional sanctions adopted by the USA and then by the EU (with the
prohibition, after 2011, of oil import and export as well as of investment,
insurance and credit related to the oil trade), it became easy for the US
government to use the UNSCRs against Iran as a lever to police the activities
of the world’s leading banks in general, and the field of trade finance in
particular.
For two decades, domestic US legislative acts slowly built up a
comprehensive net that was supposed to catch any activity involving
Iranian oil and the import/export of other commodities, with preten-
sions of legal extraterritoriality. At the domestic level, beginning in
1994 the USA passed the Nuclear Proliferation Prevention Act and
Executive Order (EO) 12938 instituting a ban on US procurement from
any person who, on or after 30 June 1994, knowingly and materially
contributes, through the export of nuclear-related goods or technology,
to the efforts of any individual, group or non-nuclear weapon state to
acquire a nuclear explosive device or unsafeguarded special nuclear
material. Through EO 12938, President Clinton declared a ‘state of
emergency’ with respect to the proliferation of weapons of mass
destruction. Then, the Export-Import Bank Act of 1996 instituted a
ban on access to credit to any person who, after 23 September 1996,
knowingly aided or abetted a non-nuclear weapon state to acquire a
nuclear explosive device or unsafeguarded material, like Iran’s enriched
uranium not currently placed under IAEA safeguards. In the 2000s, a
number of EOs complemented this legal basis, leading up to EO 13622,
and EO 13645, which was adopted in 2013 and which prevented
European and Japanese car companies present in Iran from continuing
to sell cars and spare parts to the Iranian market. In parallel, the US
Congress also passed a wide range of acts which banned trade with Iran

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     
and claimed extraterritorial competence: from the Helms–Burton Act
to the 2011 Comprehensive Iran Sanctions, Accountability, and
Divestment Act to the Iran Freedom and Counter-Proliferation Act
and the Nuclear Iran Prevention Act of 2013 as well as various Defense
Appropriation Acts in the early 2010s. During this period, reports
abound of US pressure exerted directly by the US Treasury on foreign
banks without going through national finance ministries, to directly
push them ‘to stop dealing with Iran’.77
Taken together, these US ‘emergency’ measures with extraterritorial
ambitions banned credit, guarantees or insurance in support of
exports to Iranian sanctioned individuals; forbade US imports from
sanctioned entities; and froze the assets of Iranian sanctioned entities
within US jurisdiction even before a trial could be held. From
2008 until 2015, wholesale sectoral prohibitions (especially targeting
Iran’s financial sector), which had been opposed – and specifically
vetoed – by the Russian and Chinese governments in the UNSC, were
unilaterally added post hoc by EU and US governments in the form of
domestic instruments. For private actors like global banks, applying
only the targeted sanctions of the UNSCRs against Iran would thus
have meant ignoring US and EU sanctions, and exposing themselves
to the ‘risk’ of committing sanctions violations in the two largest
economies of the world, even if the transactions concerned didn’t take
place in the USA or Europe.
Some banks originally contemplated such action, but they were con-
vinced to change strategy and take maximal measures to avoid any kind
of financial contact with individuals and entities targeted by the US
Treasury – and not only with them, but also with entities that may be
suspected of carrying a second or third degree of relationship with such
targeted entities, as interviewees in Washington told us. In a few years,
from 2005 to 2015, the US government levied fines against global banks
that handled transactions to Iran and Sudan which were prohibited
under US law (but not under UNSC resolutions or even EU law) if these
transactions were denominated in US dollars. These fines amounted to
billions of dollars, as in the case of the fine that BNP-Paribas had to pay
to US authorities for clearing transactions in its New York branch related

77
S. Fayazmanesh, The United States and Iran: Sanctions, Wars and the Policy of Dual
Containment (Routledge, 2008), p. 198; see also S. Fayazmanesh, ‘The Politics of the US
Economic Sanctions against Iran’ (2003) 35 Review of Radical Political Economics 221–40.

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      ? 
to Iranian oil proceeds coming from or going to Iran and Iranian entities
that were denominated in US dollars.78
Our interviewees, who worked as compliance officers in private finan-
cial institutions before the signing of the JCPOA, insisted that it was
impossible to apply the logic of targeted sanctions to Iran during this
period: for them, the potential benefits of admitting Iranian clients or
carrying out transactions from/to Iran were not worth the intense vetting
procedures that would have been required each time; furthermore, the
remaining risk of unwittingly admitting prohibited transactions despite
such vetting procedures was even less acceptable. While it is true that
entities linked to either Iran’s or now North Korea’s nuclear programmes
have taken many covert identities and used many masks to hide their
links to these programmes, with this amount of suspicion in these cases,
banks and their compliance departments that were asked by the UNSC to
adopt ‘vigilance’ and its associated concepts of ‘enhanced due diligence’
in fact stopped calculating the risks associated with every transaction and
rather engaged in wholesale practices of derisking.79
The signing of the JCPOA didn’t change that situation, as it left in place
many US domestic sanctions based on the US designation of many Iranian
entities as linked to groups (like Hezbollah) that the US government
designated as terrorists, which meant that global banks were still wary of
too quickly changing their regulation with regard to Iran. After the JCPOA
was signed, the logic of targetedness should have meant that, with the
lifting of the comprehensive EU and US trade sanctions that targeted the
oil trade and investment activities in Iran, the financial sanctions would
have been lifted at the same time as sectoral restrictions. This is not what
happened. The post-JCPOA situation in Iran suggests that sanctions
against Iran followed the logic of comprehensive sanctions.80 According

78
For instance, see Department of Justice, ‘Standard Chartered Deferred Prosecution
Agreement’ (2012), www.justice.gov/opa/pr/standard-chartered-bank-agrees-forfeit-227-mil
lion-illegal-transactions-iran-sudan-libya-and; OFAC (Office of Foreign Assets Control,
U.S. Treasury Dept.), ‘BNP Paribas Deferred Prosecution Agreement’ (2014), www.treasury
.gov/resource-center/sanctions/CivPen/Documents/20140630_bnp_settlement.pdf.
79
P.-E. Dupont, ‘Compliance with Treaties in the Context of Nuclear Non-proliferation:
Assessing Claims in the Case of Iran’ (2013) 19 Journal of Conflict and Security Law
161–210; Mallard, Sabet and Sun, ‘The Humanitarian Gap in the Global Sanctions
Regime’; Department of Justice, ‘Standard Chartered Deferred Prosecution Agreement’;
OFAC (Office of Foreign Assets Control, U.S. Treasury Dept.), ‘BNP Paribas Deferred
Prosecution Agreement’.
80
P. Clawson, ‘Sanctions as Punishment, Enforcement, and Prelude to Further Action’
(1993) 7 Ethics & International Affairs 17–37.

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     
to the logic of comprehensive sanctions (and, as previously illustrated in
the case of sanctioned individuals whose names are likely to stay on the
financial sector’s blacklists forever, even if they have been delisted by the
UNSC), once a country has been labelled as a ‘cause of money laundering
concern’ by the organizations in charge of issuing such statements (e.g. the
FATF, or the US Treasury and its Office of Foreign Assets Control
(OFAC)), it becomes almost impossible for that country and its economy
to be brought back into the community of global banks.
It is therefore not a surprise that, after the Iran nuclear deal of 2015, the
first law that Iran contemplated was the so-called ‘FATF bill’ – heatedly
debated in the Iranian Parliament – which required that Iranian banks
adopt AML and CFT measures promoted by the FATF in order to
convince the FATF to change its designation of Iran as a country of
money-laundering concern. But even as this legislative effort was pursued
in Iran, it was clear that the efforts would hardly bring a change in the
FATF’s assessment of Iran’s political economy, not to speak of OFAC’s
assessment, and that the reinclusion of Iranian financial institutions (after
years of exclusion) was next to impossible, even if the JCPOA explicitly
called on European private companies and banks to work towards Iran’s
economic recovery by investing massively in its oil sector.
This path dependency illustrated the comprehensive logic of CPF sanc-
tions. It was reinforced, in the specific case of Iran, by the decision made by
the US president to pull out of the JCPOA, despite the fact that UNSCR
2231 gives it the force of law. After 2018, banks faced for the first time a
stark option: either follow the logic of targeted sanction, by applying only
the prohibitions contained in the UNSCRs, or to follow US domestic
changes in their worldwide activities. Their over-cautious behaviour, and
their refusal to touch any oil-financing schemes in Iran clearly shows
which direction they have chosen to follow since 2018. It is unlikely that,
even with the change in the US administration, the contradictions between
US and multilateral sanctions will be eliminated and that the logic of
targetedness will be strictly followed in the counter-proliferation field.

9.5 Conclusion
Today, many international organizations, including the World Bank81 or
the International Monetary Fund (IMF), have issued warnings after

81
World Bank, ‘De-risking in the Financial Sector’ (7 October 2016) www.worldbank.org/
en/topic/ﬁnancialsector/brief/de-risking-in-the-ﬁnancial-sector.

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      ? 
realizing that global banks and other financial actors have massively
pulled out of sanctioned jurisdictions as they applied sanctions in a
comprehensive manner rather than by implementing narrow sanctions
exclusively targeting the culprits responsible for a country’s wrong policy
course.82 International organizations such as the IMF or the World Bank
see such cases of overcompliance as illegitimate in an age when compre-
hensive sanctions are no longer deemed appropriate under new norms of
‘civilized’ state conduct. Still, global banks and other financial actors are
not solely responsible for that ‘comprehensivization’ of sanctions: the
movement is spurred by the entanglements between targeted and compre-
hensive logics, especially in the field of counter-proliferation sanctions.
These legal entanglements have been patiently weaved together by a
proliferation of other international organizations, including the FATF
and the Panel of Experts created by the UNSC Sanctions Committees,
particularly those verifying the implementation of sanctions against Iran
and the DPRK. Together, these organizations have participated in the
creation of a fiction which implies that ‘targetedness’ would necessarily
rhyme with ‘narrowness’, when in fact ‘targetedness’ is not necessarily
incompatible with ‘comprehensiveness’: if the list of ‘targets’ is gradually
or suddenly extended to become all-encompassing, then targeted sanctions
could be both targeted and comprehensive in principle.
If we observe a general trend towards the ‘comprehensivization’ of so-
called ‘targeted’ sanctions, then why do all these institutions still claim to
design, monitor and enforce ‘targeted’ sanctions? In fact, we claim that
the logic of targetedness is no longer an empirical fact, or even a policy
goal, which would be shared by UNSC member states, but it has become
a functional assumption that is necessary for the system to continue
operating. By implicitly accepting that states are compartmentalized
and cannot be assumed to be in full control of their many state agencies
nor private actors, all the organizations which claim that the system
operates under the logic of targetedness enact a useful charade or ‘fic-
tion’83 that allows all governments to distance themselves from the
entities suspected of breaching US, EU or UNSC sanctions: if parts of a
government are blamed by a PoE or by a foreign government branch (the
US Department of Justice or OFAC in particular) for sanctions violation,
the central authorities can always claim that such entities couldn’t have

82
Mallard, Sabet and Sun, ‘The Humanitarian Gap in the Global Sanctions Regime’.
83
A. Riles, Collateral Knowledge: Legal Reasoning in the Global Financial Markets
(University of Chicago Press, 2011).

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     
acted on behalf of the state, and that they weren’t responsible for such
failings. Here, the logic of ‘targetedness’ – with its separation between
states and individual perpetrators – protects member states and thus
makes their consent to sanctions, including sanction enforcement and
monitoring, more likely.
We not only see this protective mechanism functioning in the cases of
US sanctions enforcement against Europe’s major banks (from BNP-
Paribas to HSBC), in which European governments have largely turned
their eyes away from the settlements, but also during PoE investigations,
as in the case of the DPRK. It is standard practice for most UNSC PoEs
that PoE members would never publish information in their report
without first giving the monitored state (for instance, Russia, Vietnam
or Ethiopia) the chance to either deny and disprove accusations or work
to solve problems. Thus, where PoEs uncover sanctions violations in a
given country, they tend not to link violations to governments as a whole
but only to specific actors or entities within a country (even if the actors
in question are state agencies). For instance, as reported by the DPRK
PoE in 2018 in the case of Russia, Russian companies that forged joint
ventures with DPRK state companies in violation of UNSC sanctions
needed to be investigated, and the PoE members could gain Russia’s
support for their investigations by allowing the government to claim that
such entities had violated the government’s will if they did create such
joint ventures. By operating under the assumption that states are not
complicit in sanctions violations before having been alerted of the exist-
ence of these violations by PoEs or by OFAC investigations, multilateral
and domestic investigatory bodies give them the benefit of the doubt, and
strengthen the belief that a few bad apples within the state may have
covered up such illegal behaviours, or that miscommunication problems
within complex administrations may have prevented such information
from surfacing. Investigatory bodies in the field of sanctions enforcement
normally use this assumption as a public script when interacting with
states or private actors, even where they may find it hard to believe it
themselves.
In this chapter, we have also identified several reasons why UNSC
member states (especially the P3) have preferred to entangle a compre-
hensive set of interventions with a targeted sanction regime, rather than
imposing comprehensive sanctions in the first place: first, the lack of
legitimacy of blatantly comprehensive regimes, at least since the Iraq
case; second, the fact that within the UNSC, Russia and China, and
sometimes European states, would not agree to adopt comprehensive

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      ? 
sanctions against a UN member state, as they are rather critical of
sanctions; and third, because the fiction that enforcement actions against
sanctions violations should also be targeted helps protect UN member
states from being accused of having been complicit in sanction violations,
which means, in turn, that sanctions violators are likely to opt more often
for cooperation rather than conflict when accused of misdeeds.
Sanctions experts and policy-makers who pursue an interest in
upholding peace and the rule of international law through sanctions
(rather than war) as well as a concern for human rights may be con-
vinced of the necessity to fight the trend towards comprehensivization, as
it risks creating the same human rights disasters in Iran, Venezuela or
Syria today that were witnessed in Iraq in the 1990s. They may see this
trend as a distortion of their original intent and a misuse of the instru-
ments of algorithmic governance that they collectively created. However,
we argue that the financialization of the sanctions regimes bore in its
premises an inherent dynamic towards comprehensivization, which
could only reveal itself after the first wave of sanctions were adopted
and implemented, when contradictions between comprehensive domes-
tic sanctions regimes and narrower multilateral sanctions regimes were
partially solved to the benefit of the former, with one reason being the
private financial sector’s changing notion of ‘risk’.
To that extent, we believe that the concept of legal entanglement,
which places the focus of socio-legal scholars and international organiza-
tions specialists at the intersection between these domestic, transnational
and multilateral dynamics, is particularly useful to social scientists who
are dissatisfied with the old notion of ‘international regime’, even
reworked through the use of the updated notion of ‘regime complexity’,
as well as to policy-makers who are interested in reconciling sanctions
with a concern with human rights. Its use suggests that although efforts
to arrive at a more coherent system of rules are welcome, they rarely
achieve complete success, and that regimes traversed by a plurality of
contradictory rules are not inherently unstable: to the contrary, such legal
entanglements can be quite stable over time.

Seamstress of Transnational Law

How the Court of Arbitration for Sport Weaves
the Lex Sportiva

         

Lex mercatoria, lex petrolea, lex electronica and lex sportiva have grad-
ually entered the mainstream vocabulary of legal scholarship as phenom-
ena highlighting the functionalization and privatization of law in a
globalizing world.1 They embody what are often qualified as distinct
legal orders or systems arising out of transnational communities segre-
gated along functional lines.2 This chapter aims to show that the work of
the Court of Arbitration for Sport (CAS), which is often identified as the
institutional centre of the lex sportiva,3 can be understood as that of a
seamstress weaving a plurality of legal inputs into authoritative awards.
In other words, the CAS panels are assembling legal material to produce
(almost) final decisions that, alongside the administrative practices of
sports governing bodies (SGBs), govern international sports. It is argued
that, instead of purity and autonomy, the CAS’s judicial practice is best
characterized by assemblage and hybridity. This argument will be sup-
ported by an empirical study of the use of different legal materials, in
particular pertaining to Swiss law, EU law and the European Convention

1
Gunther Teubner has been a precursor in charting this transformation, see G. Teubner,
‘Global Bukowina: Legal Pluralism in the World-Society’, in G. Teubner (ed.), Global Law
without a State (Dartmouth, 1996), pp. 3–28 and G. Teubner, ‘Breaking Frames: Economic
Globalization and the Emergence of Lex Mercatoria’ (2002) 5 European Journal of Social
Theory 199–217. For a general overview of the by now extremely vast literature, see R.
Michaels, ‘Global Legal Pluralism’ (2009) 5 Annual Review of Law and Social Science
243–62.
2
Speciﬁcally, on the role of transnational communities, see R. Cotterrell, ‘Transnational
Communities and the Concept of Law’ (2008) 21 Ratio Juris 1–18.
3
See F. Latty, La lex sportiva: Recherche sur le droit transnational (Brill, Nijhof, 2007) and L.
Casini, ‘The Making of a Lex Sportiva by the Court of Arbitration for Sport’ (2011) 12
German Law Journal 1317–40.



4
See Chapter 1.
5
Ibid.
6
The latest CAS statistics available indicate that 458 appeals procedures were initiated in
2016. See www.tas-cas.org/ﬁleadmin/user_upload/CAS_statistics_2016_.pdf.
7
On the appeal procedure, see Articles R47 to R59 of the CAS, Code of Sports-Related
Arbitration 2019 (entered into force 1 January 2019) (‘CAS Code’). For a detailed
commentary of these provisions, see A. Rigozzi and E. Hasler, ‘Commentary on the
CAS Procedural Rules’, in M. Arroyo (ed.), Arbitration in Switzerland: The Practitioner’s
Guide (Kluwer Law International, 2013), pp. 982–1060.
8
CAS 2018/O/5794, Mokgadi Caster Semenya v. International Association of Athletics
Federations, award of 30 April 2019 and CAS 2008/A/1480 Pistorius v. IAAF, award of
16 May 2008.
9
TAS 2016/A/4474, Michel Platini v. FIFA, award of 9 May 2016 and CAS 2016/A/4501
Joseph S. Blatter v. FIFA, award of 5 December 2016.
10
CAS 2016/A/4643, Maria Sharapova v. International Tennis Federation (ITF), award of
30 September 2016 and CAS 2009/A/1879 Alejandro Valverde Belmonte v. Comitato
Olimpico Nazionale Italiano, award of 16 March 2010.

10.1 The Ubiquity of Swiss Law in CAS Awards

In its awards, the CAS refers to many different national laws. However,
one is clearly more present than the others: Swiss law.14 The centrality of
Swiss law at the CAS can be linked to three factors: the sociology of the
CAS practitioners, the shadow of the Swiss Federal Tribunal (SFT) and
the localization of the seats of the SGBs. To start with the last of these, the
majority of the international SGBs, which are the primary purveyors of
CAS appeals, are located in Switzerland. This means that in most appeal

11
For another attempt, see A. Duval, ‘What Lex Sportiva Tells You about Transnational
Law’, in P. Zumbansen (ed.), The Many Lives of Transnational Law: Critical Engagements
with Jessup’s Bold Proposal (Cambridge University Press 2019), pp. 269–93.
12
A. Rigozzi, ‘L’importance du droit suisse de l’arbitrage dans la résolution des litiges
sportifs internationaux’ (2013) 1 ZSR 301–25.
13
See P. Zumbansen, ‘Transnational Legal Pluralism’ (2010) 1 Transnational Legal Theory
141–89 and J. Klabbers and G. Palombella (eds), The Challenge of Inter-Legality
(Cambridge University Press, 2019).
14
A full text search (in the CAS appeal awards) of ‘Swiss law’ in the CAS database yields hits
in 1031 CAS awards (out of 1,636 appeal awards included in the database). A comparable
search of ‘German law’, ‘Italian law’ and ‘French law’ yields exactly the same number of
awards: nineteen. These searches were all conducted on the same date (11 December
2019).

10.1.1 Swiss Law as Applicable Law in FIFA Cases

Appeals against FIFA decisions constitute an important share of the
caseload of the CAS appeal division. In particular, cases involving trans-
fer disputes and the application of the FIFA Regulations on the Status
and Transfer of Players (FIFA RSTP) are numerous and CAS panels have
repeatedly been asked to determine the law applicable in these cases. In
principle, as FIFA is seated in Zürich, Swiss law is subsidiarily applicable
in the absence of any other choice of law as provided under R58 CAS
Code. Moreover, CAS panels have regularly pointed out that the parties
are, at least indirectly, afﬁliated to FIFA (i.e. ‘members of the FIFA

15
R58 CAS Code (2019 version) provides: The Panel shall decide the dispute according to
the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in
the absence of such a choice, according to the law of the country in which the federation,
association or sports-related body which has issued the challenged decision is domiciled
or according to the rules of law the Panel deems appropriate. In the latter case, the Panel
shall give reasons for its decision.
16
See, for example, the Article 57(2) FIFA Statutes 2019 discussed further in Section 10.1.1.
17
On the limited scope of this review, see A. Rigozzi, ‘Challenging Awards of the Court of
Arbitration for Sport’ (2010) 1 Journal of International Dispute Settlement 217–65.
18
Lindholm in a recent empirical study of the CAS identiﬁed a high number of Swiss parties
and arbitrators active at the CAS, see J. Lindholm, The Court of Arbitration for Sport and
Its Jurisprudence: An Empirical Inquiry into Lex Sportiva (T.M.C. Asser Press, 2019),
pp. 270–4.

19
CAS 2013/A/3165, FC Volyn v. Issa Ndoye, award of 14 January 2014, para. 68.
20
CAS 2008/A/1517, Ionikos FC v. C., award of 23 February 2009, paras 7 and 17; CAS
2006/A/1180, Galatasaray SK v. Frank Ribéry and Olympique de Marseille, award of
24 April 2007, para. 13. See also CAS 2008/A/1482, Genoa Cricket and Football Club S.p.
A. v. Club Deportivo Maldonado, award of 9 February 2009, para. 18.
21
TAS 2005/A/983 and 984, Club Atlético Peñarol v. Carlos Heber Bueno Suarez, Cristian
Gabriel Rodriguez Barrotti and Paris Saint-Germain, award of 12 July 2006, para. 24. See
also in CAS 2006/A/1180, para. 13; CAS 2006/A/1123, Al-Gharafa Sports Club v. Paulo
Cesar Wanchope Watson and CAS 2006/A/1124, Paulo Cesar Wanchope Watson v. Al-
Gharafa Sports Club, award of 18 December 2006, para. 12; CAS 2008/A/1517; CAS 2011/
A/2375, FK Dac 1904 a.s. v. Zoltan Vasas, award of 31 October 2011; CAS 2013/A/3165,
para. 67; TAS 2014/A/3505, Al Khor SC v. C., award of 3 December 2014, para. 85; CAS
2014/A/3742, US Città di Palermo S.p.A. v. Goran Veljkovic, award of 7 April 2015,
para. 47.
22
CAS 2006/A/1123, para. 13. Similarly, see CAS 2013/A/3383–3385, Volga Nizhniy
Novgorod v. Levan Silagadze, award of 13 November 2014, para. 48 and TAS 2016/A/
4569, Abdelkarim Elmorabet v. Olympic Club Saﬁ and Fédération Royale Marocaine de
Football (FRMF), award of 20 September 2016, para. 5.8.
23
CAS 2005/A/871, FC Rodopa v. Markovitch, award of 19 September 2006, para. 4.15. Or
‘if there is a gap in the FIFA regulations’, CAS 2013/A/3165, para. 69.
24
CAS 2009/A/1956, Club Tofta Itróttarfelag, B68 v. R., award of 16 February 2010,
para. 15.
25
CAS 2006/A/1024, FC Metallurg Donetsk v. Leo Lerinc, para. 27.

10.1.2 How Swiss Law Shapes CAS Awards in FIFA Cases

The recognition of the (exclusive) applicability of Swiss law to interpret-
ative questions related to the FIFA Regulations would, however, remain
meaningless if it were not relied upon in practice. While it is in theory
possible to construct the FIFA Regulations as sufﬁciently clear and
comprehensive, in practice Swiss law plays a crucial interpretative role
in CAS appeals against FIFA decisions. Indeed, many concepts that are at
the heart of the FIFA Regulations have been deﬁned and concretized with
references to Swiss law, Swiss doctrine and Swiss precedents. This
includes questions related to:

26
CAS 2016/A/4605, Al-Arabi Sports Club Co. For Football v. Matthew Spiranovic, award of
22 February 2017, para. 5.6. See also CAS 2017/A/5341, CJSC Football Club Lokomotiv
v. Slaven Bilic, para. 59.
27
See CAS 2010/A/2316, Stoke City FC v. Brescia Calcio S.p.A., award of 6 December 2011,
para. 20.
28
See U. Haas, ‘Applicable Law in Football-Related Disputes: The Relationship between the
CAS Code, the FIFA Statutes and the Agreement of the Parties on the Application of
National Law’ (2015) Bulletin TAS/CAS Bulletin 7. CAS 2016/A/4605, para. 5.6; CAS
2017/A/5341, paras 57 and 59; CAS 2017/A/5465, Békéscsaba 1912 Futball v. George
Koroudjiev, award of 20 September 2018, paras 74 and 76; CAS 2017/A/5402, Club Al-
Taawoun v. Darije Kalezic, award of 7 June 2018, para. 89; CAS 2016/A/4471, Abel
Aguilar Tapias v. Hércules de Alicante FC, award of 2 February 2017, paras 69–70; CAS
2016/A/4859, Hong Kong Pegasus FC v. Niko Tokic, award of 30 June 2017, paras 60–1;
TAS 2016/A/4569, paras 5.8 and 5.9.
29
CAS 2012/A/2919, FC Seoul v. Newcastle Jets FC, award of 24 September 2013. In other
words, FIFA regulations apply in ‘priority’, TAS 2005/A/983 and 984, para. 49.

• the method to be followed to interpret the FIFA Regulations;30

• the applicability of mandatory rules, such as EU law;31
• whether a party has standing to sue or to be sued;32
• who bears the burden of proof;33
• the calculation of time limits;34
• whether there is a contract or an offer ‘in writing’;35
• whether an offer has been received;36
• whether there is ‘just cause’ for one of the parties to terminate an
employment contract between a player and a club;37

30
CAS 2008/A/1521, VfB Admira Wacker Modling v. A.C. Pistoiese s.p.A., award of
12 December 2008; CAS 2010/A/2316; CAS 2013/A/3365, Juventus Football Club S.p.A.
v. Chelsea Football Club Ltd and CAS 2013/A/3366, A.S. Livorno Calcio v. Chelsea
Football Club Ltd, award of 21 January 2015.
31
CAS 2008/A/1485, FC Midtjylland A/S v. Fédération Internationale de Football
Association (FIFA), award of 6 March 2009 and TAS 2016/A/4490, RFC Seraing
v. Fédération Internationale de Football Association (FIFA), award of 9 March 2017.
32
CAS 2006/A/1206, Milan Zivadinovic v. Iraqi Football Association (IFA), award of 2 April
2007; CAS 2006/A/1192, Chelsea Football Club Limited v. Adrian Mutu, award of 21 May
2007; CAS 2007/A/1329, Chiapas F.C. v. Cricuma Esporte Clube and CAS 2007/A/1330,
Chiapas F.C. v. R., awards of 5 December 2007; CAS 2008/A/1518, Ionikos FC v. L., award
of 23 February 2009; CAS 2012/A/2906, Alain Geiger v. Egyptian Football Association
(EFA) and Al Masry Club, award of 12 February 2013; TAS 2013/A/3351, Fédération de
Football de la République Islamique de Mauritanie (FFRIM) and ASAC Concorde v. CS
Hammam-Lif and Fédération Tunisienne de Football (FTF) and Fédération Internationale
de Football Association (FIFA), award of 24 January 2014; CAS 2013/A/3278, Maritimo de
Madeira – Futebol SAD v. Desportivo Brasil Participacoes LTDA, award of 2 June 2014;
CAS 2017/A/5227, Sporting Clube de Braga v. Club Dynamo Kyiv and Gerson Alencar de
Lima Junior, award of 8 March 2018; CAS 2017/A/5352, FK Sileks v. GFK Dubočica
Leskovac, award of 24 April 2018.
33
CAS 2009/A/1909, RCD Mallorca SAD and A. v. Fédération Internationale de Football
Association (FIFA) and UMM Salal SC, award of 25 January 2010; CAS 2009/A/1956;
CAS 2013/A/3444, S.C. FC Brasov S.A v. Renato Ferreira Da Silva Alberto, award of 29
October 2015.
34
CAS 2011/A/2354, E. v. Fédération Internationale de Football Association (FIFA), award
of 24 August 2011; CAS 2015/A/3883, Al Nassr Saudi Club v. Jaimen Javier Ayovi Corozo,
award of 26 August 2015.
35
CAS 2008/A/1521; CAS 2010/A/2316; CAS 2013/A/3207, Tout Puissant Mazembe
v. Alain Kaluyituka Dioko and Al Ahli SC, award of 31 March 2014.
36
CAS 2016/A/4720, Royal Standard de Liège v. FC Porto (Player T.), award of 19 May
2017 and CAS 2016/A/4721, Royal Standard de Liège v. FC Porto (Player C.), award of
19 May 2017.
37
CAS 2006/A/1100, E. v. Club Gaziantepspor, award of 15 November 2006; CAS 2007/A/
1210, Ittihad Club v. Sergio Dario Herrera, award of 3 July 2007; TAS 2007/A/1233, FC
Universitatea Craiova v. Marcos Honorio Da Silva and TAS 2007/A/1234, FC Universitatea
Craiova v. Eduardo Magri, awards of 19 December 2007; CAS 2008/A/1447, E.

• the amount of damages that a party is entitled to in case of a contract-

ual breach;38
• the conditions that must be met for a renunciation by a player of his
outstanding wage to be valid;39
40
• the validity and amount of a penalty clause;
• the validity of a waiver to the right to receive a training
compensation;41
42
• the validity of a dual pricing method for a transfer fee; and
43
• the interest rate applicable in case of payment default.
These examples are a large but certainly incomplete sample of the many
instances in which Swiss law has been relied on to support a speciﬁc
interpretation of the FIFA Regulations. These interpretative decisions are
not trivial. They affect, for example, whether a party will have standing to
appeal a decision before the CAS, whether a party will be deemed to have
broken an employment contract or the amount of damages a party will
be able to obtain in case of breach. For each of these questions, the CAS
panels have leaned on Swiss law to justify their interpretative (and
therefore distributive) choices. This use of Swiss law is not limited to

v. Diyarbakirspor, award of 29 August 2008; CAS 2008/A/1518; CAS 2009/A/1956; CAS

2013/A/3216, Anorthosis Famagusta FC v. Sinisa Dobrasinovic, award of 14 May 2014; CAS
2013/A/3407, Green Gully Soccer Club v. Pedro Henrique Coelho de Oliveira, award of
20 June 2014; CAS 2014/A/3626, Carmelo Enrique Valencia Chaverra v. Ulsan Hyundai
Football Club, award of 23 April 2015; TAS 2016/A/4569; CAS 2016/A/4588, FC
Internazionale Milano v. Sunderland AFC and CAS 2016/A/4589, Sunderland AFC v. FC
Internazionale Milano, awards of 15 June 2017; CAS 2017/A/5242, Esteghlal Football Club
v. Pero Pejic, award of 16 April 2018; CAS 2017/A/5465.
38
TAS 2005/A/902, Mexès and AS Roma v. AJ Auxerre and TAS 2005/A/903, AJ Auxerre
v. Mexès and AS Roma, awards of 5 December 2005; CAS 2006/A/1024; CAS 2006/A/
1100; TAS 2007/A/1315, Hassan El Mouataz and Sporting Lokeren Oost-Vlaanderen
v. Association Sportive des Forces Armées Royales (ASFAR), awards of 31 January 2008;
CAS 2008/A/1447; CAS 2008/A/1518; TAS 2014/A/3505; CAS 2013/A/3216; CAS 2014/
A/3626; TAS 2016/A/4569; CAS 2016/A/4588; CAS 2017/A/5242.
39
TAS 2018/A/5896, Yves Diba Ilunga v. Al Shoullah Club, award of 15 April 2019.
40
CAS 2012/A/2847, Hammarby Fotboll AB v. Besiktas Futbol Yatirimlari Sanayi ve Ticaret
A.S., award of 22 March 2013; CAS 2014/A/3555, FC Vojvodina v. Almami Samori Da
Silva Moreira, award of 18 December 2014; CAS 2017/A/5242.
41
CAS 2017/A/5277, FK Sarajevo v. KVC Westerlo, award of 16 April 2018.
42
CAS 2006/A/1196, Sociedade Esportiva Palmeiras v. Clube Desportivo Nacional, award of
19 July 2007.
43
CAS 2008/A/1482; CAS 2013/A/3443, Ginés Carvajal Seller v. FC Dnipro Dnipropetrovsk,
award of 6 October 2014; CAS 2016/A/4567, Al Jazira FSC v. FC Lokomotiv, award of
9 November 2016; TAS 2016/A/4569; CAS 2017/A/5374, Jaroslaw Kolakowski v. Daniel
Quintana Sosa, award of 10 April 2018.

10.2 The Limited Entanglement of EU Law in CAS Awards

EU law and the private regulations of the SGBs have a long history of
‘war and peace’.45 The famous Bosman46 ruling of the Court of Justice
of the European Union (CJEU) constitutes the high point, in terms of
public visibility, of this encounter. Despite the intense relationship
between the private regulations of the SGBs and EU law, the latter was

44
A. Rigozzi, ‘L’importance du droit suisse de l’arbitrage’.
45
A. Duval, ‘La Lex Sportiva face au droit de l’Union européenne: guerre et paix dans
l’espace juridique transnational’, PhD thesis, EUI (2015). On the interaction between EU
law and sport, see S. Weatherill, Principles and Practice in EU Sports Law (Oxford
University Press, 2017).
46
Case C-415/93, Union royale belge des sociétés de football association ASBL v. Jean-Marc
Bosman, Royal club liégeois SA v. Jean-Marc Bosman and others and Union des associ-
ations européennes de football (UEFA) v. Jean-Marc Bosman [1995] ECR I-04921.

Thus, arguments grounded in Swiss private international law played a

pivotal role in opening the possibility for the application and entangle-
ment of EU law at the CAS. Yet, before 2010, only a few (published) CAS
awards referred to EU law and even fewer were engaging with it in
detail.49 This has changed in recent years, with a couple of awards

47
A. Duval, ‘The Court of Arbitration for Sport and EU Law: Chronicle of an Encounter’
(2015) 22 Maastricht Journal of European and Comparative Law 224–55.
48
CAS 98/200, AEK Athens and SK Slavia Prague v. Union of European Football
Associations (UEFA), award of 20 August 1999, para. 10.
49
Before 2010, we ﬁnd mentions of EU law in the following CAS awards publicly available
in the CAS database (on 1 September 2019): TAS 92/80, B. v. Fédération Internationale de
Basketball (FIBA), award of 25 March 1993; CAS 98/200; TAS 2000/A/290, Abel Xavier
and Everton FC v. Union des Associations Européennes de Football (UEFA), award of
2 February 2001; TAS 2002/A/423, PSV Eindhoven v. Union des Associations Européennes
de Football (UEFA), award of 3 June 2003; TAS 2004/A/708, Philippe Mexès v. Fédération
Internationale de Football Association (FIFA) and TAS 2004/A/709, AS Roma v. FIFA and
TAS 2004/A/713, AJ Auxerre c. AS Roma and Philippe Mexès, awards of 11 March 2005;
CAS 2005/A/951, Guillermo Cañas v. ATP Tour, revised award of 23 May 2007; CAS
2006/A/1125, Hertha BSC Berlin v. Stade Lavallois Mayenne FC, award of 1 December
2006; CAS 2007/A/1272, Cork City FC v. FIFA (Healy), award of 15 October 2007; CAS
2007/A/1287, Danubio FC v. Fédération Internationale de Football Association (FIFA)
and FC Internazionale Milano S.p.A., award of 28 November 2007; CAS 2008/A/1485;
CAS 2008/A/1644, M. v. Chelsea Football Club Ltd., award of 31 July 2009; CAS 2009/A/

10.2.1 EU Law as Constitutional Check at the CAS

EU law does not regulate transnational sports through the imposition of
detailed primary rules. Instead, it imposes a duty of justification on the
SGBs.51 EU law forces, through the strength of its internal market rules,
the SGBs to advance legitimate objectives for their regulations and to
argue why their rules or decisions are to be deemed proportionate means
to attain the set objectives. In other words, it functions analogously to a
constitutional review of the rules and decisions of the SGBs. This duty of
justification has been formally imported in a number of cases submitted
to the CAS, in which the panels have conducted proportionality assess-
ments of the rules and decisions challenged. In many cases, the CAS does
not conduct a deep appraisal of the proportionality of a disputed meas-
ure.52 It has, for example, regularly considered that the fact that the FIFA
RSTP are based on an agreement with the European Commission suffices
to guarantee their compatibility with EU law.53 Nevertheless, in a range

1757, MTK Budapest v. FC Internazionale Milano S.p.A., award of 30 July 2009; CAS
2009/A/1788, UMMC Ekaterinburg v. FIBA Europe e. V., award of 29 October 2009.
50
For deep engagements with EU law, see, for example: TAS 2016/A/4490 and CAS 2016/
A/4492, Galatasaray v. UEFA, award of 3 October 2016.
51
The centrality of the idea of justification in the European integration process has been
theorised by J. Neyer, The Justification of Europe: A Political Theory of Supranational
Integration (Oxford University Press, 2012).
52
See TAS 2000/A/290, para. 17.7; CAS 2005/A/951, para. 29; CAS 2008/A/1644, para. 44.
53
CAS 2007/A/1272, para. 32; CAS 2007/A/1287, paras 37–40; CAS 2009/A/1757, paras
29–30; CAS 2009/A/1810 and 1811, SV Wilhelmshaven v. Club Atlético Excursionistas
and Club Atlético River Plate, award of 5 October 2009, paras 48–9; CAS 2009/A/1957,
Fédération Française de Natation (FFN) v. Ligue Européenne de Natation (LEN), award of
5 July 2010, paras 37–40; CAS 2013/A/3119, Dundee United FC v. Club Atlético Vélez
Sarsfield, award of 20 November 2013, paras 70–1; CAS 2014/A/3710, Bologna FC 1909 S.
p.A. v. FC Barcelona, award of 22 April 2015, para. 81.

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of recent cases, the CAS panels quite comprehensively engaged in a
proportionality assessment of the reviewed regulations.54
More precisely, in the Galatasaray55 and Seraing56 awards, delivered in
2016 and 2017, the CAS was asked to review the compatibility of two
controversial rules introduced respectively by the Union of European
Football Associations (UEFA) and FIFA. It is interesting to note that
Jean-Louis Dupont, who represented Jean-Marc Bosman, was acting for
the claimants in both cases. The Galatasaray case involved the UEFA
Club Licensing and Financial Fair Play Regulations (UEFA FFP
Regulations) and their compatibility with EU law. It is not the right place
to revisit the debate on the compatibility of the UEFA FFP Regulations
with EU law, but it is interesting to note that the CAS panel decided to
conduct a comprehensive proportionality analysis relatively similar to the
one that would have been conducted by the European Commission or
the CJEU if they were asked a similar question. Likewise, the Seraing case,
in which the Belgian club was challenging the validity under EU law of
FIFA’s 2015 ban on third-party ownership, also led to the integration of a
proportionality analysis grounded in EU law into the CAS award.57 In
both cases, the CAS concluded that the regulations were pursuing a
legitimate objective and represented necessary and proportionate means
to attain that objective.
It is uncertain whether the CJEU or the European Commission would
reach the same conclusion, but the above awards highlight that the two
CAS panels were in the position of decentralized EU law enforcers, not
unlike national courts but without the obligation or capacity to refer a
preliminary question to the CJEU. The question whether the CAS is
applying EU law properly, for example as the CJEU would, is almost
impossible to settle until a case reaches Luxembourg. A review of the
CAS awards involving EU law shows that the SGBs’ regulations are very

54
CAS 98/200; CAS 2009/A/1788, paras 22–47; CAS 2012/A/2852, S.C.S. Fotbal Club CFR
1907 Cluj S.A. and Manuel Ferreira de Sousa Ricardo and Mario Jorge Quintas Felgueiras
v. Romanian Football Federation (FRF), award of 28 June 2013; CAS 2014/A/3561 and
3614, International Association of Athletics Federation (IAAF) and World Anti-Doping
Agency (WADA) v. Marta Domínguez Azpeleta and Real Federación Española de
Atletismo (RFEA), award of 19 November 2015, paras 172–91; TAS 2016/A/4490; CAS
2016/A/4492.
55
CAS 2016/A/4492. See my commentary in A. Duval, ‘CAS 2016/A/4492, Galatasaray
v. UEFA, Award of 3 October 2016’, in A. Duval and A. Rigozzi (eds), Yearbook of
International Sports Arbitration 2016 (T.M.C. Asser Press, 2017), pp. 377–91.
56
TAS 2016/A/4490.
57
TAS 2016/A/4490, paras 90–144.

10.2.2 Interpreting the FIFA RSTP with a Little Help from EU Law
After the Bosman ruling, FIFA devised a new transfer system regulating
the transnational movement of football players between clubs.59 This
new system, however, was quickly challenged at the European
Commission on the basis of EU competition law and a protracted
negotiation started between the European Commission, FIFA, the
players’ union FIFPro, the European Club Association and UEFA.60 It
concluded with the adoption of the general principles upon which the
FIFA RSTP is ofﬁcially grounded.61 This peculiar transnational geneal-
ogy of the RSTP became relevant at the CAS because panels have
considered that, insofar as the statutes of large entities are concerned,
‘it may be more appropriate to have recourse to the method of interpret-
ation applicable to the law’ and therefore adopt a ‘contextual
approach’ that entails reviewing the legislative history and purpose.62

58
See CAS 2012/A/2852.
59
On the FIFA RSTP and its interpretation by the FIFA Dispute Resolution Chamber in
general, see F. De Weger, The Jurisprudence of the FIFA Dispute Resolution Chamber
(T.M.C. Asser Press, 2016).
60
For a detailed history of this episode of transnational law-making, see A. Duval, ‘The
FIFA Regulations on the Status and Transfer of Players: Transnational Law-Making in
the Shadow of Bosman’, in A. Duval and B. Van Rompuy (eds), The Legacy of Bosman:
Revisiting the Relationship Between EU Law and Sport (T.M.C. Asser Press, 2016),
pp. 81–116.
61
European Commission, ‘Outcome of Discussions between the Commission and FIFA/
UEFA on FIFA Regulations on International Football Transfers’ (press release IP/01/314,
5 March 2001).
62
CAS 2013/A/3365 and 3366, para. 143.

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The ﬁrst case involving an interpretive use of EU law was the Mexès
case which concerned the interpretation of Articles 21(1) and 23(1) FIFA
RSTP 2001 edition.63 The key question was whether the prolongation of
the contract of a professional football player would trigger an extension
of the stability period – a period during which the player could not leave
the club without risking a sporting sanction. To answer this question, the
Panel analysed the question in light of EU law as it decided to go back to
the ratio legis of the provisions to determine their concrete meaning.64
The text of the award refers to the Bosman ruling as well as to the
decision of the European Commission in the competition law case
opened against FIFA.65 Hence, to support its decision, the CAS panel
felt that it had to grapple with EU law requirements, although whether it
did so in an orthodox fashion is another matter. This ﬁrst example of
recourse to EU law as part of the relevant context for a proper interpret-
ation of the RSTP was endorsed in following awards.66 Most promin-
ently, in a case pitching the Italian football clubs Juventus F.C. and A.S.
Livorno Calcio against the English club Chelsea F.C., the CAS provided
an extensive analysis of this interpretive link between EU law and the
RSTP.67 The case was related to the legal saga surrounding Chelsea’s
2005 dismissal of Adrian Mutu over his consumption of cocaine. The
CAS panel considered it necessary to do an in-depth review of the
legislative history of the FIFA RSTP in order to determine whether
Article 14(3) FIFA RSTP 2001 edition applied, and therefore whether
Juventus and Livorno jointly owed a considerable transfer fee to Chelsea.
In doing so, it carefully scrutinized the case law of the CJEU and the
decisions of the European Commission.68 This led the arbitrators to
reject the interpretation advanced by Chelsea as contrary to the EU law

63
TAS 2004/A/708 and 709 and 713.
64
Ibid., paras 24–30.
65
Ibid., paras 25–6.
66
See CAS 2006/A/1125, paras 43–7; CAS 2010/A/2316, para. 37; CAS 2016/A/4903, Club
Atlético Vélez Sarsﬁeld v. The Football Association Ltd., Manchester City FC and
Fédération Internationale de Football Association (FIFA), award of 16 April 2018, paras
91–105.
67
CAS 2013/A/3365 and 3366. See A. Duval, ‘CAS 2013/A/3365 Juventus FC v. Chelsea FC
and CAS 2013/A/3366 A.S. Livorno Calcio S.p.A. v. Chelsea FC, Award of 21 January
2015’, in A. Duval and A. Rigozzi (eds), Yearbook of International Sports Arbitration 2015
(T.M.C. Asser Press, 2016), pp. 155–68.
68
CAS 2013/A/3365 and 3366, paras 149–57.

10.3 The Inﬂuential Use of the ECHR in CAS Awards

While EU law has been dancing a slow-moving tango with the SGBs’
regulations since the 1970s, the ECHR was, until very recently, almost
entirely foreign to the world of sport.72 The European Court of Human
Rights (ECtHR) only started to indirectly scrutinize the practice of the
CAS and the world anti-doping regime in 2018 and has done so in a
relatively restrained fashion.73 In spite of this, the ECHR has been

69
Ibid., paras 161–3.
70
Most recently in the ISU decision of the European Commission, see Case AT.40208 –
International Skating Union’s Eligibility rules, 8 December 2017.
71
On the dialectic between proximity and distance in the context of legal entanglements, see
Chapter 1, Section 1.4.3.
72
For a general summary of the ECtHR cases applying to sport, see ECtHR, ‘Sport and the
European Convention on Human Rights, Factsheet’ (October 2019), www.echr.coe.int/
Documents/FS_Sport_ENG.pdf. However, few of the cases mentioned are directly related
to the regulations or decisions of SGBs.
73
See Mutu and Pechstein v. Switzerland, app. no. 40575/10 and 67474/10, judgment of
2 October 2018; Fédération Nationale des Syndicats Sportifs (FNASS) and Others
v. France, app. no. 48151/11 and 77769/13, judgment of 18 January 2018; Platini
v. Switzerland, app. no. 526/18, judgment of 11 February 2020.

10.3.1 CAS Jurisdiction and the ECHR

Among the many legal questions that have triggered references to the
ECHR, some are connected to the jurisdiction of the CAS. For example,
the CAS faced a case in which an athlete was challenging the validity of

74
See for a general overview U. Haas, ‘Role and Application of Article 6 of the European
Convention on Human Rights in CAS Procedures’ (2012) 3 International Sports Law
Review 43–60.
75
CAS 2008/A/1513, Emil Hoch v. Fédération Internationale de Ski (FIS) and International
Olympic Committee (IOC), award of 29 January 2009, para. 9.
76
See CAS 2009/A/1957, para. 14; TAS 2011/A/2433, Amadou Diakite v. Fédération
Internationale de Football Association (FIFA), award of 8 March 2012, para. 23; TAS
2012/A/2862, FC Girondins de Bordeaux v. Fédération Internationale de Football
Association (FIFA), award of 11 January 2013, paras 106–7.
77
The ﬁrst award in this regard is TAS 2000/A/290, para. 10. The ECHR is seen as
’indirectly applicable’ (TAS 2011/A/2433, para. 24) and CAS Panels as ‘indirectly bound’
(CAS 2015/A/4304, Tatyana Andrianova v. All Russia Athletic Federation (ARAF), award
of 14 April 2016, para. 46). See also CAS 2013/A/3139, Fenerbahçe SK v. Union des
Associations Européennes de Football (UEFA), award of 5 December 2013, para. 93.
78
CAS 2011/A/2384, Union Cycliste Internationale (UCI) v. Alberto Contador Velasco and
Real Federación Española de Ciclismo (RFEC) and CAS 2011/A/2386, World AntiDoping
Agency (WADA) v. Alberto Contador Velasco and RFEC, award of 6 February 2012,
para. 22.
79
CAS 2015/A/4304, para. 45.
80
See Chapter 1.

81
CAS 2010/A/2311 and 2312, Stichting Anti-Doping Autoriteit Nederland (NADO) and the
Koninklijke Nederlandsche Schaatsenrijders Bond (KNSB) v. W, awards of 22 August
2011, paras 14–18.
82
Ibid., para. 18, referring to Lithgow and others v. The United Kingdom, app. nos. 9006/80,
9262/81, 9263/81, 9265/81, 9266/81, 9313/81, 9405/81, judgment of 8 July 1986.
83
Ibid.
84
Ibid., para. 19. For a more sceptical view, see J. Lukomski, ‘Arbitration Clauses in Sport
Governing Bodies’ Statutes: Consent or Constraint? Analysis from the Perspective of
Article 6(1) of the European Convention on Human Rights’ (2013) 13 The International
Sports Law Journal 60–70.
85
CAS 2008/A/1708, Football Federation Islamic Republic of Iran (IRIFF) v. Fédération
Internationale de Football Association (FIFA), award of 4 November 2009, para. 21; CAS
2008/A/1705, Neue Grasshopper Fussball AG Zurich v. Club Alianza de Lima, award of
18 June 2009, para. 23; see also CAS 2011/A/2439, Football Association of Thailand
v. Fédération Internationale de Football Association (FIFA), award of 17 June 2011,
para. 16.

10.3.2 Challenging the Compatibility of the SGBs’ Regulations

with the ECHR
Like EU law, the ECHR can also be used to impose a form of consti-
tutional review upon the rules and decisions of the international SGBs. In
that framework, it operates as a kind of cosmopolitan constitution that
would extend beyond the state parties to private entities engaging in
transnational regulation. Yet, in practice, such a use of the ECHR as a
constitutional check remains relatively rare at the CAS.

10.3.2.1 The ECHR Compatibility of the WADC

One of the vexing questions of international sports law is whether the
current world anti-doping regime based on the WADC is infringing on
the human rights of athletes subjected to it.90 Many commentators have

86
CAS 2011/A/2439.
87
CAS 2013/A/3274, Mads Glasner v. Fédération Internationale de Natation (FINA), award
of 31 January 2014, para. 65.
88
Ibid.
89
Ibid.
90
J. Soek, The Strict Liability Principle and the Human Rights of the Athlete in Doping Cases
(T.M.C. Asser Press, 2006). See also C. Tamburrini, ‘WADA’s Anti-doping Policy and

Athletes’ Right to Privacy’ (2013) 1 Revista de Filosofía, Ética y Derecho del Deporte
84–96; A. J. Schneider, ‘Privacy, Conﬁdentiality and Human Rights in Sport’ (2004) 7
Sport in Society 438–56; M. Hard, ‘Caught in the Net: Athletes’ Rights and the World
Anti-Doping Agency’ (2010) 19 Southern California Interdisciplinary Law Journal
533–64.
91
The ECtHR has recently decided two cases related to anti-doping, see Fédération
Nationale des Syndicats Sportifs (FNASS) and Others v. France and Bakker
v. Switzerland, app. no. 7198/07, judgment of 3 September 2019.
92
G. Kaufmann-Kohler, G. Malinverni and A. Rigozzi, ‘Conformity of Certain Provisions of
the Draft WADC with Commonly Accepted Principles of International Law’ (February
2003), www.wada-ama.org/en/resources/legal/conformity-with-international-law;
G. Kaufmann-Kohler and A. Rigozzi, ‘Conformity of Art. 10.6 with Fundamental
Rights of Athletes’ (November 2007), www.wada-ama.org/en/resources/world-anti-
doping-program/conformity-with-fundamental-rights-of-athletes; J.-P. Costa, ‘Legal
Opinion Regarding the Draft World Anti-doping Code’ (June 2013), www.wada-ama
.org/en/resources/legal/legal-opinion-on-the-draft-2015-world-anti-doping-code; and J-
P. Costa, ‘Legal Opinion on the 2021 Code’ (October 2019), www.wada-ama.org/en/
resources/the-code/legal-opinion-on-the-2021-code-by-judge-jean-paul-costa.
93
The opinion by G. Kaufmann-Kohler, G. Malinverni and A. Rigozzi is cited in CAS 2004/
A/690, H. v. Association of Tennis Professionals (ATP), award of 24 March 2005, para. 54;
CAS 2005/A/830, S. v. FINA, award of 15 July 2005, para. 41; CAS 2006/A/1025, Mariano
Puerta v. International Tennis Federation (ITF), award of 12 July 2006, para. 78; CAS
2009/A/2012, Doping Authority Netherlands v. Mr Nick Zuijkerbuijk, award of 11 June
2010, para. 50; CAS 2009/A/1915, World Anti-Doping Agency (WADA) v. Polish
Wrestling Federation (PWF), Kamil Blonski and Wojciech Zieziulewicz, award of
12 August 2010, para. 17; CAS 2010/A/2307, WADA v. Jobson Leandro Pereira de
Oliveira, CBF and STJD, award of 14 September 2011, paras 45 and 99. While the
Costa opinion is referred to in CAS 2016/A/4534, Maurico Fiol Villanueva
v. Fédération Internationale de Natation (FINA), award of 16 March 2017, para. 52;
CAS 2017/A/4927, Misha Aloyan v. International Olympic Committee (IOC), award of
16 June 2017, para. 82; CAS 2017/A/5099, Artur Taymazov v. International Olympic
Committee (IOC), award of 4 December 2017, para. 82; CAS 2018/A/5546, José Paolo
Guerrero v. FIFA and CAS 2018/A/5571, WADA v. FIFA and José Paolo Guerrero, awards
of 30 July 2018, para. 87; CAS 2018/A/5581, Filip Radojevic v. Fédération Internationale
de Natation (FINA), award of 10 July 2018, para. 85; and CAS 2018/A/5739, Levi
Cadogan v. National Anti-Doping Commission of Barbados (NADCB), award of
20 February 2019, para. 81.

10.3.2.2 The ECHR Compatibility of Other Disciplinary

Rules and Decisions of the SGBs
The ECHR could naturally also ﬁnd an application with regard to other
types of disciplinary proceedings in the sporting context. In fact, CAS
panels have recognized that SGBs must comply with the nulla poena sine
lege principle enshrined in Article 7 ECHR.98 In other words, ‘before a
person can be found guilty of a disciplinary offence, the relevant discip-
linary code must proscribe the misconduct with which he is charged’.99
However, challenges on the basis of Article 6(2) ECHR to the widespread
use of strict liability in sports regulations have not been successful.100
More speciﬁcally, clubs and athletes argued that strict liability runs
contrary to the presumption of innocence guaranteed in Article 6(2)

94
CAS 2017/A/4927, para. 82 and CAS 2017/A/5099, para. 82.
95
CAS 2018/A/5546 and 5571, para. 87 and CAS 2018/A/5739, para. 81.
96
CAS 2015/A/4184, Jobson Leandro Pereira de Oliveira v. Fédération Internationale de
Football Association (FIFA), award of 25 April 2016 (operative part of 24 March 2016),
para. 188. Or that ‘CAS case law and various legal opinions conﬁrm that the WADC
mechanisms are not contrary to human rights legislation’ in CAS 2009/A/2012, para. 47.
97
TAS 2009/A/1879, para. 81.
98
CAS 2014/A/3516, George Yerolimpos v. World Karate Federation, award of 6 October
2014, para. 104 and CAS 2016/A/4921 and 4922, Maria Dzhumadzuk, Irina Shulga and
Equestrian Federation of Ukraine v. Federation Equestre Internationale (FEI), award of
30 May 2017, para. 62.
99
CAS 2014/A/3516, para. 104.
100
Strict liability foresees that a disciplinary violation, such as a violation of anti-doping
rules, can be constituted even without fault of the accused. See CAS 2013/A/3139 above
and CAS 2014/A/3628, Eskişehirspor Kulübü v. Union of European Football Association
(UEFA), award of 2 September 2014 (operative part of 7 July 2014).

10.3.3 The CAS and the Procedural Guarantees of Article 6(1) ECHR
The procedural rights guaranteed by Article 6(1) ECHR, and in particu-
lar their interpretation by the ECtHR, are more present in CAS awards.
The ECtHR’s case law plays a fundamental role in deﬁning the intensity
of procedural review exercised by the CAS with regard to the decisions of
the SGBs, as well as in justifying the key procedural constraints applic-
able to the CAS itself.

10.3.3.1 The ECHR and Due Process Inside the SGBs

The internal disciplinary bodies of the international SGBs are taking
most of the disciplinary decisions affecting international sports. In ﬁne,

101
See CAS 2009/A/1768, Hansen v. Fédération Equestre Internationale (FEI), award of
4 December 2009, para. 21 referring to Salabiaku v. France, app. no. 10519/83, judgment
of 7 October 1988, paras 28–9.
102
CAS 2013/A/3139, para. 91.
103
CAS 2018/A/5769, Worawi Makudi v. Fédération Internationale de Football Association
(FIFA), award of 11 February 2019, paras 135–6.
104
CAS 2015/A/4304, para. 48. Referencing decision dated Oleksandr Volkov v. Ukraine,
app. no. 21722/11, judgment of 9 January 2013, marg. no. 137.
105
The reference to the ECtHR decision Scoppola v. Italy, app. no. 10249/03, judgment of
17 September 2009 is found in CAS 2012/A/2817, Fenerbahçe Spor Kulübü v. Fédération
Internationale de Football Association (FIFA) and Roberto Carlos Da Silva Rocha, award
of 21 June 2013, para. 122 and CAS 2010/A/2083, UCI v. Jan Ullrich and Swiss Olympic,
award of 9 February 2012, para. 63.

106
CAS 2009/A/1957, para. 14. In particular, the award referenced previous decisions such
as CAS 2000/A/290 above and CAS 2005/A/895, Al-Hilal Al-Saudi Club v. Fédération
Internationale de Football Association (FIFA), order of 12 December 2008.
107
Ibid., para. 15.
108
Ibid., para. 20.
109
CAS 2008/A/1513, para. 9.
110
CAS 94/129, USA Shooting and Q. v. Union Internationale de Tir (UIT), award of
23 May 1995 para. 59. For similar conclusions, see CAS 2009/A/1957, para. 21; CAS
2009/A/1985, Franchon Crews v. International Boxing Association (AIBA), award of
10 June 2010; para. 24. For a hint of a different direction, see CAS 2015/A/4095,
Bernardo Rezende and Mario da Silva Pedreira Junior v. Fédération International de
Volleyball (FIVB), award of 6 October 2015, paras 74–7.
111
The Wickramsinghe v. The United Kingdom, app. no. 31503/96, decision of 9 December
1997 is referenced in CAS 2007/A/1396 and 1402, World Anti-Doping Agency (WADA)
and Union Cycliste Internationale (UCI) v. Alejandro Valverde and Real Federación
Española de Ciclismo (RFEC), award of 31 May 2010, para. 43; CAS 2009/A/1920, FK
Pobeda, Aleksandar Zabrcanec, Nikolce Zdraveski v. UEFA, award of 15 April 2010,

10.3.3.2 The ECHR and Evidence at the CAS

The CAS has also leveraged references to the ECtHR case law to justify
allowing certain types of evidence in CAS proceedings. First, the CAS has
had to decide whether recourse to anonymous witnesses infringes the
right to be heard under Article 6(1) ECHR.114 In particular, the CAS
referred to the jurisprudence of the SFT drawing on the case law of the
ECtHR which allowed the recourse to anonymous witnesses if necessary
for the personal safety of the witness.115 Nevertheless, the Panel also
relied on the ECtHR’s jurisprudence to nuance this conclusion by

para. 28; CAS 2009/A/1985, para. 24; CAS 2011/A/2430, Football Club Apollonia
v. Albanian Football Federation (AFF) and Sulejman Hoxha, award of 18 October
2012, para. 9.24; CAS 2013/A/3262, Joel Melchor Sánchez Alegría v. Fédération
Internationale de Football Association (FIFA), award of 30 September 2014 (operative
part of 18 June 2014), para. 83; CAS 2016/A/4871, Vladimir Sakotic v. FIDE World Chess
Federation (FIDE), award of 2 August 2017, para. 120. The ECtHR’s A. Menarini
Diagnostics S.r.l. v. Italy, app. no. 43509/08, judgment of 27 September 2011, paras
58–9 is cited in CAS 2011/A/2362, Mohammad Asif v. International Cricket Council,
award of 17 April 2013, para. 41. Finally, the Bryan v. The United Kingdom, app.
no. 19178/91, judgment of 22 November 1995 is referred to in CAS 2008/A/1513,
para. 9.
112
CAS 2009/A/1985, para. 24; CAS 2011/A/2430, para. 9.24; CAS 2013/A/3262, para. 83.
113
Wickramsinghe v. The United Kingdom, para. 41.
114
CAS 2009/A/1920, para. 13. See as well CAS 2011/A/2384 and 2386, paras 167–86.
115
Ibid. However, in CAS 2011/A/2384 and 2386, para. 184, the CAS refused to allow a
witness to testify anonymously because the Panel considered that ‘it was insufﬁciently
demonstrated that the interests of the witness worthy of protection were threatened to
an extent that could justify a complete protection of the witness’ identity from disclosure
to the Respondents’.

116
CAS 2009/A/1920.
117
TAS 2011/A/2433. On the use of the secret recordings that led to the recent Russian anti-
doping scandal, see CAS 2016/A/4480, International Association of Athletics Federations
(IAAF) v. All Russia Athletics Federation (ARAF) and Vladimir Kazarin, award of 7 April
2017, paras 76–7; CAS 2016/A/4486, International Association of Athletics Federations
(IAAF) v. Ekaterina Poistogova, award of 7 April 2017, paras 104–6; and CAS 2016/A/
4487, International Association of Athletics Federations (IAAF) v. Alexey Melnikov,
award of 7 April 2017, paras 104–6.
118
Ibid., para. 27. Referring to Teixeira de Castro v. Portugal, app. no. 25829/94, judgment
of 9 June 1998.
119
Ibid., paras 31–2.
120
CAS 2016/A/4480, para. 76.
121
CAS 2016/A/4486, para. 105.
122
Ibid., para. 106. In particular the award refers to K.S and M.S v. Germany, app.
no. 33969/11, judgment of 6 October 2016.

10.3.3.3 The ECHR and Due Process at the CAS

Lastly, one case has led the CAS to evaluate the compliance of its own
procedures with Article 6(1) ECHR, with the panel concluding, perhaps
unsurprisingly, that the CAS Code was compliant.123 Based on a number
of ECtHR decisions, the panel held that ‘in compliance with the constant
jurisprudence of the ECtHR’ the athlete had freely consented to the
jurisdiction of the CAS and that, therefore, ‘the guarantees required by
Article 6 para. 1 ECHR do not have to be fulfilled by the CAS’.124 In spite
of this preliminary conclusion, the CAS Panel went on to argue that, in
any case, it was fully compliant with Article 6(1) ECHR.125 In particular,
the need for both parties to agree for a hearing to be held in public was
deemed to ‘not constitute a violation of Article 6 para. 1 of the ECHR as
this provision allows, in its second sentence, restrictions with regards to
the publicity of the hearing’.126 More precisely, it held that disputes
‘relating to doping controls very often give rise to numerous questions
concerning, on the one hand, the private life of the parties involved and,
on the other hand, sophisticated technical mechanisms and data espe-
cially developed in order to establish anti-doping rule offences’, and,
therefore, it found that ‘publicity of the hearing would have prejudiced
the interests of justice’.127 In addition, it insisted that ‘confidentiality of
hearings is very common in private arbitration and no judicial precedent
has to date stated that such confidentiality would violate Article 6 para.1
ECHR’.128 Ironically, a few years later, the ECtHR itself would reach the

123
CAS 2014/A/3561 and 3614.
124
CAS 2014/A/3561 and 3614, para. 196.
125
Ibid., para. 197–207.
126
Ibid., para. 207.
127
Ibid.
128
Ibid.

10.4 Conclusion
The CAS is a special place. It is not really an arbitral tribunal, nor is it a
proper international court, but it stands as a living embodiment of the
‘unidentiﬁed legal objects’130 that proliferate in transnational legal prac-
tice. It is often presented as necessary to the transnational governance
(and mere existence) of international sports. Important CAS decisions,
such as the recent Semenya award, are subjected to global attention and
intense scrutiny. This chapter portrays the CAS as a judicial site where
awards are being produced through a process of legal weaving that
enmeshes different types of legal material. Its practice is not a solipsistic
work based only on the denationalized law of an autonomous trans-
national community but rather an artistic mélange of styles producing a
textual assemblage that is tailored to each case. In the context of the lex

129
Mutu and Pechstein v. Switzerland above. See A. Duval, ‘Time to Go Public?
Transparency at the Court of Arbitration for Sport after the Pechstein Decision of the
European Court of Human Rights’, in A. Duval and A. Rigozzi (eds), Yearbook of
International Sports Arbitration 2017 (T.M.C. Asser Press, 2020), pp. 3–28.
130
In reference to what Benoît Frydman calls ‘objets juridiques non ou mal identiﬁés’, in
B. Frydman, ‘Comment penser le droit global?’ (2012) Working Papers du Centre
Perelman de Philosophie du Droit, www.philodroit.be/IMG/pdf/comment_penser_le_
droit_global_2011.pdf, p. 5.

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  
sportiva, entanglement is undoubtedly the ‘normal state of the law’131
and the CAS represents a striving ‘Inter-Legality Hub’.132
Nevertheless, it is true that not all legal texts are equally present in CAS
awards. As we have seen, Swiss law is much more present than, say,
French law (or any other national law for that matter). Similarly, EU law
and the ECHR are regularly invoked while there are very few mentions of
other sources of international law. One should not lose sight of the fact
that the CAS is not an a-national construct hovering above our heads,
but is embedded (like many international SGBs) in the territorial and
legal context of Switzerland. Furthermore, entanglements cannot be
severed from the actors.133 Many of the professionals active before the
CAS as arbitrators or lawyers are Europeans or even Swiss. Finally, the
main avenue to challenge CAS awards is the SFT (and, to a much lesser
extent, other European courts and administrative bodies). It is thus quite
logical that when CAS panels are called to assemble an award, they draw
on both what they know and what they want to assuage. Thus, the CAS
works not so much as an autarkic judicial machinery reliant on its own
supply of power and inputs but rather as a transnational legal assembly
line importing various parts of its awards from different suppliers on a
case-by-case basis. Hence, the judicial practice of the CAS can help us
move beyond the billiard ball model of autonomous transnational legal
orders or systems in order to perceive the hybridity of transnational legal
practice.134 At the CAS, Swiss law, EU law and the ECHR are not so
much clashing with the lex sportiva as they are entangled within it. They
become an integral part of the lex sportiva. This conclusion does not
imply that the ECtHR or the CJEU should defer to the CAS, to the
contrary. It means that they should scrutinize closely the way it speaks
‘their’ language, like they assess the way national courts are speaking it.
In a world where nobody is in a position to impose top down a single set
of global rules applied in a uniform way, transnational legal practice is
bound to be the result of strange loops and contextual assemblages.
The complex beauty of these rhetorical entanglements should not hide
the fact that the CAS is taking distributive decisions which are very hard
(i.e. costly) to challenge. This chapter has not focused on the politics

131
Chapter 1.
132
Y. Shany, ‘International Courts as Inter-legality Hubs’, in J. Klabbers and G. Palombella
(eds), The Challenge of Inter-legality (Cambridge University Press, 2019), pp. 319–38.
133
Chapter 1, Section 1.4.1.
134
See A. Duval, ‘What Lex Sportiva Tells You about Transnational Law’.

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    
lurking behind these entanglements. In other words, what are their
underlying drivers or unspoken purposes? In order to answer this ques-
tion, one would need to carefully investigate who does the entangling and
why. There is no reason to believe that these entanglements are per se fair
or just. Therefore, the ethics of those producing legal entanglements must
be subjected to strict scrutiny.135 In fact, the dark face of the ubiquity of
transnational legal entanglements might be that ultimate political
accountability becomes difficult to locate as decisions are enmeshed in
a plurality of political and legal contexts. Who should be blamed for a
particular interpretation of the FIFA RSTP? Is it the responsibility of
FIFA, the European Commission, the CAS or the SFT? Where can we ask
to change it and how? The risk is that entanglements lead to a form of
organized irresponsibility, as if the legal assemblages of the CAS were not
the result of deliberate choices but natural reflections of what a patch-
work of laws say. Hence, the age of entanglements calls for a relentless
critique of the politics lurking behind the textual assemblages. If legisla-
tors are found simultaneously in multiple places and levels, inside the
SGBs, at the Swiss parliament or in Brussels, we need to think about how
to recreate a transnational democratic space (and process) adapted to this
multiplicity. Similarly, if the CAS is in a position to assemble its awards
relatively freely, in light of the extremely limited control exercised by the
SFT and the high costs of challenging a CAS award elsewhere, then we
must seriously consider those who are doing the assembling. Who are
they? How is their legitimacy and authority justified? Are they sufficiently
impartial and independent from the SGBs? How are they selected? What
are the mechanisms in place to prevent the rise of conflicts of interests?
Once we recognize that the assembling or entangling of transnational law
is the new normal, we must urgently grapple with these questions. The
hybridization and pluralization of transnational legal practice might be a
necessary consequence of the liquefaction of our transnational lives, but
it raises fundamental problems for the way in which political agency is
exercised and decision-makers are held accountable. One answer to this
conundrum could be to move towards entangling our politics and
accountability mechanisms, meaning that the citizenry has to exercise
agency at multiple levels (e.g. through social movements, consumer
boycotts or simply voting at the European Parliament elections) and to
move strategically between different accountability fora (e.g. the

135
J. Klabbers, ‘Judging Inter-legality’, in J. Klabbers and G. Palombella (eds), The Challenge
of Inter-legality (Cambridge University Press, 2019), pp. 339–62.

136
This shift in the exercise of power is theorised by U. Beck, Power in the Global Age
(Polity, 2005).
137
‘Pleite zwingt Pechstein zu dramatischem Hilferuf’ Die Welt (1 July 2015), www.welt.de/
sport/article143390802/Pleite-zwingt-Pechstein-zu-dramatischem-Hilferuf.html.

The Struggle for International Financial Standards

An Historical Analysis of Entangling Legalities in Finance

 

11.1 Introduction
The global financial order is key to our economy but highly fragile. And
the norms and institutions to stabilize it are themselves plural and
fragmented – in fact, a prime example of multiple bodies of norms
coexisting in global governance. This order is characterized by a multi-
plicity of norms and institutions with various claims to authority, reflect-
ing different priorities and normative orientations. How have actors dealt
with the tensions that this plurality generates and where has this left the
multiple legalities and their relations?
To answer this question, this chapter examines the recent history of
the global administration of financial stability. In the last two decades,
this area of financial regulation has been shaped by responses to the
perceived risks associated with multiplicity of norms and institutions.
The contemporary administration of financial and monetary affairs
seems to be surrounded by ‘mystery’1 and ‘ambiguity about the
relationship between all of the various sources of international regulatory
standards’.2 This complexity may partly depend on our limited

I am particularly grateful to Professor Nico Krisch for his generous support and comments
on earlier versions of this chapter. I wish to thank the participants in the workshop
‘Entangled Legalities’, in May 2018, where a first draft of this text was presented, and
Tomáš Morochovič for his careful editing of this text. I also gratefully acknowledge the
financial support by the SNF, which made this research possible.
1
D. Kennedy, ‘The Mystery of Global Governance’, in J. L. Dunoff and J. P. Trachtman
(eds), Ruling the World? Constitutionalism, International Law, and Global Governance
(Cambridge University Press, 2009), pp. 37–68.
2
A. Riles, ‘Managing Regulatory Arbitrage: A Conflict of Laws Approach’ (2014) 47 Cornell
International Law Journal 63–119, at 80–1.



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  
understanding of the organizational structures of these relationships and
the drivers behind them.
In various contexts of global financial governance, characterized by a
significant degree of informality, regulatory decentralization and
dynamic institutional interactions, societal actors have shaped differ-
ent ordering projects in opposition to ‘chaos’ over time. From a macro
perspective, previous studies have helpfully analysed the broad histor-
ical and political contexts in which these ordering projects have come
about by placing emphasis on ‘the power and interests of leading
financial powers, domestic political dynamics, and the role of trans-
national actors’.3 Yet we do not quite know the forms through which
institutional multiplicity has been organized and with what effects for
the overall order. Drawing upon the concepts of this volume, this
chapter analyses different forms of entanglements in contexts of global
financial regulation, focusing on some of the sites, actor constellations
and dynamics behind them.4 This chapter uses the term bodies of
norms to connect the variety of recommendations, standards, best
practices and codes recognized by regulators as factors of financial
stability. At various decision-making settings, financial regulators,
legal professionals and economic experts disagreed over the identifica-
tion of the relevant sources of authority and their organizational
structures. For example, the prevailing regulatory response that
followed the global financial crisis of 2008 was a call for a more or less
centralized institutional framework for ‘a global banking and financial
system’. Some lawyers imagined a new field of international financial
law or lex financiera.5 Many argued that the International Monetary
Fund (IMF) should have institutional primacy, while others regarded
the Financial Stability Board (FSB) as the appropriate locus of author-
ity, and yet others suggested that the function of a new World
Financial Authority should be allocated. However, opposing views
defended a more modest reform through a pluralist approach to
ordering.6 This chapter questions ambitious attempts at structuring

3
E. Helleiner, ‘Regulating the Regulators: The Emergence and Limits of the Transnational
Financial Legal Order’, in T. C. Halliday and G. Shaffer (eds), Transnational Legal Orders
(Cambridge University Press, 2015), pp. 231–57, p. 235.
4
See Chapter 1. Throughout the text, I use ‘entanglement’ and ‘enmeshment’ interchangeably.
5
See, for example, R. M. Lastra, ‘Do We Need a World Financial Organization?’ (2014) 17
Journal of International Economic Law 787–805.
6
C. Brummer, Minilateralism: How Trade Alliances, Soft Law, and Financial Engineering
Are Redeﬁning Economic Statecraft (Cambridge University Press, 2014).

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    
and controlling multiplicity through one ‘common frame of reference’7
such as legalization in finance. I contrast this dominant view with the
perspective of ‘entangled legality’8 as an alternative way of thinking
about relations between multiple kinds of laws populating global
finance. From this perspective, the project of legalization is only one
among a variety of ways of ordering multiplicity, which may equally
contribute to dynamics of enmeshment. While these relations are
embedded in a mosaic of interactions between multiple orders, elem-
ents of this wider environment form the background of the analysis.
The analysis proceeds as follows. Following this introduction, Section
11.2 describes international financial standards as interrelated bodies of
norms and foregrounds how they became entangled in regulatory set-
tings over time. Drawing on public documents from the Bank for
International Settlements (BIS), the United Nations (UN) and the IMF,
I examine the forms in which these bodies of norms were brought into
relation by different actors. In the wake of the Asian financial crisis of
1997, officials at the IMF, UN and BIS made claims ordering institutional
fragmentation. In this context, the Financial Stability Forum (FSF)
emerged as a ‘site of entanglement’ and the drafters and users of its
Compendium of Standards came to play a central role in organizing
relations between norms that were identified as ‘international standards’.
Against this historical backdrop, Section 11.3 identifies different interface
norms and examines how they were used by actors in norm-making and
norm-implementation settings. Within the debate on the reform of the
international financial architecture, regulatory harmonization and over-
arching institutions have been dominant responses to the perceived risks
of institutional multiplicity. Yet, while there seems to be no consensus
over the content of these overarching institutions, competing forms of
ordering persist.

11.2 Contexts of Entanglement in Global Financial

Governance over Time
From the perspective of international legal theory, the actors and struc-
tures characterizing global ﬁnancial regulation differ from those encoun-
tered in traditional ﬁelds of international law. Three striking features of

7
N. Krisch, ‘Pluralism’, in J. d’Aspremont and S. Singh (eds), Concepts for International
Law (Edward Elgar, 2019), pp. 691–707.
8
See Chapter 1.

9
C. Brummer, Soft Law and the Global Financial System: Rule Making in the 21st Century
(Cambridge University Press, 2015), see in particular chapter 2. Annelise Riles has
described ‘global financial regulation’ as a ‘global system that is inherently pluralistic’.
A. Riles, ‘Is New Governance the Ideal Architecture for Global Financial Regulation?’, in
C. Goodhart, D. Gabor, J. Vestergaard and I. Ertürk (eds), Central Banking at a
Crossroads: Europe and Beyond (Anthem Press, 2014), pp. 245–64.
10
According to Brummer, the three forms of soft financial law are: best practices, data and
information sharing agreements. Brummer, Minilateralism, pp. 96–8.
11
See Chapter 1.
12
‘The recognition of authority can flow from many sources: it can result from rational
calculus, normative internalization or a mere acceptance as “normal”.’ N. Krisch, ‘Liquid
Authority in Global Governance’ (2017) 9 International Theory 237–60, at 242.
13
For the list of members, see Basel Committee, ‘The Supervision of Financial
Conglomerates: A Report by the Tripartite Group of Bank, Securities and Insurance
Regulators’ (July 1995), at 67–8.
14
‘Since a single global financial regulator is not a feasible idea from our point of view due
to sovereignty concerns, we had to look at the problem in terms of promoting regulatory

cooperation and information exchange among regulators’. W. Murden, ‘Banking

Supervision and Government Policy: The Role of Regulators in International Financial
Reform’ (1999) 4 Fordham Journal of Corporate & Financial Law 35–40.
15
These actors were ‘the Basle Committee on Banking Supervision, the Working Group of
the Conference of Insurance Supervisors of the European Economic Community, the
Technical Committee of the International Organization of Securities Commissions
(IOSCO), the Banking Advisory Committee of the Commission of the European
Communities and the Insurance Committee of the Commission of the European
Communities’. Basel Committee, ‘The Supervision of Financial Conglomerates’, 11.
16
Ibid., ii.
17
Basel Committee, ‘Supervision of Financial Conglomerates: Papers Prepared by the Joint
Forum on Financial Conglomerates’ (February 1998).
18
In 1998, these countries were: Australia, Belgium, Canada, France, Germany, Italy, Japan,
the Netherlands, Spain, Sweden, Switzerland, the United Kingdom and the United States.
The EU Commission participated as an observer. See also Brummer, Soft Law and the
Global Financial System, p. 82.
19
Consultation documents released by the Basle Committee on Banking Supervision, see
Basel Committee, ‘Supervision of Financial Conglomerates’.

11.2.1 Ordering Bodies of Norms after Financial Crises

The anecdotal evidence just presented suggests that informal settings of
interaction between institutional players have also been ‘sites of entangle-
ment’ where bodies of norms have been pieced together through social
‘practices of recognition and deference’.25 This section takes a closer look
at similar statements pronounced by situated actors at three different
regulatory sites: the IMF, the UN and the BIS, to examine whether and
how, in the aftermath of ﬁnancial crises, dynamics of entanglement
played out there.26 Financial crises have often been moments of change

20
France, Germany, Japan, the Netherlands, Sweden, the United Kingdom and the
United States.
21
Argentina, Hong Kong, Singapore, Indonesia, Korea, Mexico, Poland, Singapore,
Thailand.
22
These actors were Representatives of the Basel Committee on Banking Supervision, the
International Accounting Standards Committee (IASC) and the International
Organization of Securities Commissions (IOSCO) and staff members of the Bank for
International Settlements (BIS), the European Commission, the International Monetary
Fund (IMF), the Organization for Economic Co-operation and Development (OECD)
and the International Bank for Reconstruction and Development (World Bank).
23
Working Party on Financial Stability in Emerging Market Economies, ‘Report on
Financial Stability in Emerging Market Economies, a Strategy for the Formulation,
Adoption and Implementation of Sound Principles and Practices to Strengthen
Financial Systems’ (April 1997). The members of the Working Party are listed on
pp. 101–2 of the report.
24
These actors were: the IASC, IOSCO, the Basel Committee on Banking Supervision of the
Group of Ten (G10) central banks, the Committee on Payment and Settlement Systems
of the G10 central banks, International Association of Insurance Supervisors.
25
Krisch, ‘Liquid Authority in Global Governance’, 249.
26
We might expect to observe different or similar forms of ordering plurality in other
settings, too. See Chapter 1.

27
Helleiner, ‘Regulating the Regulators’. See also C. Brummer and M. Smallcomb,
‘Institutional Design: The International Architecture’, in N. Moloney, E. Ferran and J.
Payne (eds), The Oxford Handbook of Financial Regulation (Oxford University Press,
2015).
28
On the historical background of the trajectory towards international standards, see R. P
Delonis, ‘International Financial Standards and Codes: Mandatory Regulation without
Representation’ (2004) 36 New York University Journal of International Law and Politics
563–604.
29
Deputy Director of the IMF Research Department (1987–94).
30
M. Goldstein, The Case for an International Banking Standard (Peterson Institute for
International Economics, 1997).
31
Ibid., at 53.
32
Ibid., at 35.

33
Ibid.
34
Michel Camdessus, former managing director of the IMF, referred to ‘internationally
accepted best practices’ to bind together the Basel Adequacy standards, internationally
accepted accounting standards and disclosure rules. M. Camdessus, ‘The Role of the IMF:
Past, Present, and Future – Speech’ (13 February 1998). He further stated: ‘the Fund has
been working to help disseminate a set of “best practices” in the banking area – as
developed by the Basle Committee – so that standards and practices that have worked
well in some countries can be adapted and applied in others. These efforts will now be
stepped up.’ See address by M. Camdessus to the Parliamentary Assembly of the Council
of Europe, ‘From the Asian Crisis toward a New Global Architecture’ (23 June 1998).
Stanley Fisher, first deputy managing director of the IMF (1994–2001) expressed similar
ideas: ‘As we help countries strengthen their financial systems, we need guideposts to
judge what has been achieved and what remains to be done. This requires international
standards against which to assess the soundness and stability of financial systems. There
are many players in the international community with a keen interest in such standards,
and their development requires the active participation of both private and official bodies,
domestic and international [. . .] But there has been a growing recognition of the links
between their work and the consequent need for collaboration [. . .] the main contribu-
tion of the Fund is in encouraging the implementation of standards that have been
determined by others and then using them in our work on the assessment of financial
systems [. . .] Standards cannot be written in stone. They are bound to evolve in the light
of experience.’ S. Fischer, ‘The IMF and the Financial Sector – Introductory Remarks’
(5 June 2000).
35
These bodies of norms were on: data dissemination, fiscal transparency, monetary and
fiscal policies, banking supervision, securities market regulation, insurance regulation,
accounting, auditing, bankruptcy and corporate governance. See IMF Policy
Development and Review Department, ‘Progress Report Developing International
Standards’ (1999).
36
T. Halliday, ‘Legal Yardsticks: International Financial Institutions as Diagnosticians and
Designers of the Law of Nations’, in K. Davis, A. Fisher, B. Kingsbury and S. E. Merry

(eds), Governance by Indicators: Global Power through Quantiﬁcation and Rankings

(Oxford University Press, 2012), pp. 180–216, at pp. 200–2; A. Feibelman, ‘Law in the
Global Order: The IMF and Financial Regulation’ (2017) 49 New York University Journal
of International Law and Politics 687–746.
37
FSAPs Reports consist of three ‘Volumes’. Volume III is titled ‘Assessment of Observance
of International Standards and Codes’. On the operation of FSAP and Reports on the
Observance of Standards and Codes, see the perspective of François Gianviti, former
General Counsel of the IMF, in F. Gianviti, ‘Legal Aspects of the Financial Sector
Assessment Program’ (2005) 3 Current Developments in Monetary and Financial Law
219.
38
Gianviti, ‘Legal Aspects of the Financial Sector Assessment Program’.
39
‘The IMF has recognized 12 areas and associated standards as useful for the operational
work of the Fund and the World Bank. These comprise accounting; auditing; anti-money
laundering and countering the financing of terrorism (AML/CFT); banking supervision;
corporate governance; data dissemination; fiscal transparency; insolvency and creditor
rights; insurance supervision; monetary and financial policy transparency; payments
systems; and securities regulation; AML/CFT was added in November 2002.’ See www
.imf.org/external/NP/rosc/rosc.aspx.
40
‘An FSAP assessment will look at the financial sector’s legislative underpinnings to
evaluate regulatory capacity and practice. This will include a systematic assessment of
compliance with the Basel Core Principles for Effective Banking Supervision, transpar-
ency practices in monetary and financial policies, and – if relevant – standards for
securities markets, insurance, and payment systems. Other legal and institutional issues
that bear on the financial sector may also be reviewed.’ P. Hilbers, ‘The IMF/World Bank
Financial Sector Assessment Program’, IMF, February 2001.
41
IMF and World Bank, ‘Financial Sector Assessment Program – Review, Lessons, and
Issues Going Forward’ (24 February 2005).

42
S. Pahuja, ‘Technologies of Empire: IMF Conditionality and the Reinscription of the
North/South Divide’ (2000) 13 Leiden Journal of International Law 749–813.
43
B. S. Chimni, ‘Marxism and International Law: A Contemporary Analysis’ (1999) 34
Economic and Political Weekly 337–49; B. S. Chimni, ‘International Institutions Today:
An Imperial Global State in the Making’ (2004) 15 European Journal of International Law
1–37.
44
Brummer and Smallcomb, ‘Institutional Design’.
45
See www.imf.org/en/About/Factsheets/Sheets/2016/08/01/16/25/Standards-and-Codes.
46
Camdessus, ‘The Role of the IMF’.
47
Letter of Intent of the government of Turkey (2001), www.imf.org/external/np/loi/2001/
tur/02/.
48
Letter of Intent, Memorandum of Economic and Financial Policies, and Technical
Memorandum of Understanding of Colombia (2002), www.imf.org/external/np/loi/
2002/col/01/index.htm.
49
On the idea of conditioning the disbursement of funds to the adherence to such
standards, see B. J. Eichengreen, Toward a New International Financial Architecture:
A Practical Post-Asia Agenda (Peterson Institute for International Economics, 1999).
Giovanoli has called these determinants ‘ofﬁcial incentives’ (FSAP) and ‘unofﬁcial incen-
tives’ (market expectations). See M. Giovanoli, ‘The Reform of the International Financial
Architecture after the Global Crisis’ (2009) 42 New York University Journal of
International Law and Politics 81–123, at 118–19.

50
On these different paths to entanglement, see Chapter 1.
51
Report of the Task-Force of the Executive Committee on Economic and Social Affairs of
the United Nations, ‘Towards a New International Financial Architecture’ (21 January
1999), 14–15.
52
Ibid., 7.
53
Institutional pluralism seems the only form of pluralism considered by participants in
international ﬁnancial regulation reform. This form of pluralism is different from ‘sys-
temic pluralism’. On this conceptual distinction, see Krisch, ‘Pluralism’, pp. 695–8.
54
Economist and former president of the Deutsche Bundesbank (1993–9).
55
H. Tietmeyer, ‘Report on International Cooperation and Coordination in the Area of
Financial Market Supervision and Surveillance’ (11 February 1999).
56
On the Joint Forum, see Section 11.2.
57
Tietmeyer, ‘Report on international cooperation and coordination’.
58
On the creation of the Financial Stability Forum, see Brummer, Soft Law and the Global
Financial System, p. 74. See also Helleiner, ‘Regulating the Regulators’.

11.2.1.1 Competing Ordering Projects

At their second meeting, FSF members introduced a ‘Compendium of
Standards’, describing it as ‘a common reference for the various eco-
nomic and ﬁnancial guidelines, principles, and codes of good practices
that are internationally accepted as relevant to sound, stable and well-
functioning ﬁnancial systems’.65

59
These actors were: ‘the finance minister, central bank governor, and a supervisory
authority from each of the G-7 countries, as well as representatives from the IMF,
World Bank, Bank for International Settlements (“BIS”), Organization for Economic
Cooperation and Development (“OECD”), Basel Committee on Banking Supervision
(“BCBS”), International Accounting Standards Board (“IASB”), International
Association of Insurance Supervisors (“IAIS”), International Organization of Securities
Commissions (“IOSCO”), Committee on Payment and Settlements Systems (“CPSS”),
and Committee on the Global Financial System (“CGFS”). After its creation, the FSF
added the European Central Bank, and additional national members Australia, Hong
Kong, the Netherlands, and Switzerland.’ E. Carrasco, ‘The Global Financial Crisis and
the Financial Stability Forum: The Awakening and Transformation of an International
Body Global Financial and Economic Crisis Symposium’ (2010) 19 Transnational Law &
Contemporary Problems 203–20, at 206.
60
Andrew Crockett worked at the IMF (1972–89), was executive director of the Bank of
England (1989–93) and worked as general manager of the BIS (1994–2003).
61
Communiqué of G7 Finance Ministers and Central Bank Governors, 20 February 1999,
Petersberg, Bonn. On the role of Tietmeyer and the BIS in the creation of the FSF, see C.
Brummer, ‘A Theory of Everything: A Historically Grounded Understanding of Soft Law
and the BIS’, in C. Borio, S. Claessens, P. Clement, R. McCauley and H. Shin (eds),
Promoting Global Monetary and Financial Stability: The Bank for International
Settlements after Bretton Woods, 1973–2020 (Cambridge University Press, 2020),
pp. 112–33.
62
K. Camfferman and S. A. Zeff, Aiming for Global Accounting Standards: The
International Accounting Standards Board, 2001–2011 (Oxford University Press, 2015).
63
‘[A] set of global financial reporting standards that is accepted and, equally importantly,
widely and effectively implemented is a critical missing pillar in the emerging inter-
national financial architecture.’ A. Crockett, ‘Towards Global Financial Reporting
Standards: A Critical Pillar in the International Financial Architecture’ (BIS, 2002).
64
A. Crockett, ‘International Financial Arrangements: Architecture and Plumbing’ (BIS,
15 November 1999).
65
‘The Compendium is a joint product of the various standard-setting bodies represented
on the Forum. It will be reviewed and updated on an ongoing basis and is envisaged to
cover a range of areas relevant to sound and stable financial systems: (a) transparency of

fiscal, monetary, and financial policies; (b) dissemination of economic and financial data;
(c) regulation and supervision of banking, securities, and insurance; (d) disclosure,
transparency, and risk management practices of financial institutions; (e) corporate
governance, accounting, auditing, and bankruptcy; and (f ) payment and settlement
systems.’ Background brief made available to the press at the second meeting of the
Financial Stability Forum, 15 September 1999.
66
J. Eatwell and L. Taylor, Global Finance at Risk: The Case for International Regulation
(Polity Press, 2000); Eichengreen, Toward a New International Financial Architecture; M.
Giovanoli (ed.), International Monetary Law: Issues for the New Millennium (Oxford
University Press, 2000).
67
G. Walker, ‘A New International Architecture and the Financial Stability Forum’, in R. M.
Lastra (ed.), The Reform of the International Financial Architecture (Kluwer Law
International, 2000).
68
A. Icard, ‘Strengthening Financial Stability: Institutional Approach or Pragmatic
Multitherapy?’ (BIS, 1999).
69
On law as a variant of jurisdiction, see S. Pahuja, ‘Laws of Encounter: A Jurisdictional
Account of International Law’ (2013) 1 London Review of International Law 63–98.
70
General Counsel of the BIS from 1989 to 2005.
71
‘[I]t is therefore important to examine all the possibilities which might strengthen
international financial standards by granting them an appropriate legal status in inter-
national law.’ Giovanoli, International Monetary Law, p. 59.
72
Eatwell’s and Taylor’s project was to construct ‘a framework within which a coherent
international policy can be worked out at implemented’. Eatwell and Taylor, Global
Finance at Risk. For a similar perspective, see A. Kern, R. Dhumale and J. Eatwell,
Global Governance of Financial Systems: The International Regulation of Systemic Risk
(Oxford University Press, 2006), at xiii.

73
On the transformation of the FSF into the FSB, see E. Carrasco, ‘The Global Financial
Crisis and the Financial Stability Forum’; S. Gadinis, ‘The Financial Stability Board: The
New Politics of International Financial Regulation’ (2013) 48 Texas International Law
Journal 158–75.
74
As Annelise Riles has observed: ‘the FSB process has mainly engaged representatives of
governments and international bureaucracies, with private parties participating only
through more attenuated opportunities for public comment’. Riles, ‘Is New Governance
the Ideal Architecture for Global Financial Regulation?’, 257.
75
Brummer, ‘A Theory of Everything’.
76
J. A. Ocampo, Resetting the International Monetary (Non)System: A Study Prepared by the
United Nations University World Institute for Development Economics Research (UNU-
WIDER, 2017).
77
For an analysis and critique of approaches to harmonization, see Riles, ‘Managing
Regulatory Arbitrage’, 77–87.
78
T. Cottier et al., The Rule of Law in Monetary Affairs: World Trade Forum (Cambridge
University Press, 2014); for a critique of this tendency in international economic inter-
actions, see A. Lang, ‘Rule of Law in International Economic Relations’, in T. Cottier and
K. N. Schefer (eds), Elgar Encyclopedia of International Economic Law (Edward Elgar,
2017).

79
‘In ﬁnance, we have a “black hole” with few formal international rules and no adequate
system to deal with cross-border crisis or conﬂicts.’ Lastra, ‘Do We Need a World
Financial Organization?’, 797.
80
Ibid., 804.
81
C. de Stefano, ‘Reforming the Governance of International Financial Law in the Era of
Post-Globalization’ (2017) 20 Journal of International Economic Law 509–33. See also M.
De Bellis, ‘Relative Authority in Global and EU Financial Regulation: Linking the
Legitimacy Debates’, in J. Mendes and I. Venzke (eds), Allocating Authority: Who
Should Do What in European and International Law? (Hart Publishing, 2018),
pp. 241–70.
82
See FSB, ‘Promoting Global Adherence to International Cooperation and Information
Exchange Standards’ (2010).
83
R. Weber, ‘Multilayered Governance in International Financial Regulation and
Supervision’, in T. Cottier, J. H. Jackson and R. M. Lastra (eds), International Law in
Financial Regulation and Monetary Affairs (Oxford University Press, 2012), pp. 151–70,
at 158–69. For a similar perspective, see P. E. Avgouleas, Governance of Global Financial

11.3 Responding to Multiplicity in Global Financial Governance

Against the historical and doctrinal background of some of the projects
of reordering global ﬁnancial regulation discussed so far, this section
looks more closely at the interface norms associated with projects to
respond to multiplicity in the different institutional settings examined.

11.3.1 The Project of Harmonization: Overarching Norms

and Reception Norms
The historical process of associating bodies of norms after the Asian
financial crisis and global financial crisis was partly defined by competing

Markets: The Law, the Economics, the Politics (Cambridge University Press, 2012),
chapter 8.
84
R. M. Lastra, International Financial and Monetary Law (Oxford University Press, 2015).
85
Brummer argues that the idea of a single global authority is impractical because ‘states are
unlikely to cede power to a global ﬁnancial regulator’, Brummer, Soft Law and the Global
Financial System, p. 328. See also L. Baxter, ‘Understanding the Global in Global Finance
and Regulation’, in R. Buckley, E. Avgouleas and D. Arner (eds), Reconceptualising Global
Finance and Its Regulation (Cambridge University Press, 2016), pp. 28–48.
86
Brummer, Minilateralism.
87
A. Riles, Collateral Knowledge: Legal Reasoning in the Global Financial Markets
(University of Chicago Press, 2011).

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efforts to reimagine the global financial order. Two manifestations here
were the projects of ‘international regulation’ and ‘legalization’ advocated
by actors associated with the IMF institutional context. Though the two
projects had different nuances, they adopted an intra-systemic perspec-
tive to govern institutional relations from a central vantage point. Indeed,
they both imagined a common integrating principle – ‘international
regulation’ or ‘international law’ – at the apex of the ‘international
financial architecture’. Thus, the philosophy of overarching norms
informed both reform projects.88 In the UN context, the approach to
ordering followed a somewhat similar logic. Relying on a similar form
but a different content of interface norms, the UN Task-Force referred to
‘sustainable human development’ and ‘democracy’89 as principles
governing the decision-making process within the envisaged inter-
national financial architecture. The UN Task-Force interpreted
‘International codes of conduct, improved information, and enhanced
financial supervision and regulation’ as an overarching framework
governing the system. However, they went so far as to argue that the
framework would ‘include international standards to combat money and
asset laundering as well as corruption and tax evasion’ but also ensure
‘consistency’ with human rights, particularly those in the International
Covenant on Economic, Social and Cultural Rights.90 Moreover, the UN
Task-Force went beyond a purely intra-systemic perspective to take into
view relationships between the international financial system and differ-
ent domestic legal systems. While emphasizing the ‘global’ character of
‘financial regulation and supervision’, the UN Task-Force also gave
weight to domestic legal orders and their ‘different national financial
structure and traditions as regards financial regulation and
supervision’.91

88
On ‘overarching norms’, see Chapter 1.
89
‘We must emphasize that any reform of the international ﬁnancial system ought to be
based on a broad discussion, involving all countries, and a clear agenda, including all key
issues. The process must ensure that the interests of all groups of developing and
transition economies, including poor and small countries, are adequately represented.
The United Nations, as a universal and the most democratic international forum, should
play an important role in these discussions and in the design of the new system.’ Task-
Force of the Executive Committee on Economic and Social Affairs of the United Nations,
‘Towards a New International Financial Architecture’, 9.
90
Ibid., 15.
91
Task-Force of the Executive Committee on Economic and Social Affairs of the United
Nations, ‘Towards a New International Financial Architecture’, 15.

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While it is not obvious that UN officials perceived domestic legal
systems as integrated parts within the ‘international financial system’, it
seems more plausible that they relied on the more flexible interface norm
of ‘taking into account’ to connect ‘domestic’ and ‘international’
systems.92 When bringing these legal orders into a mutual relation, the
UN body of experts relied on reception norms in so far as they required
that ‘due account should be taken’ of local circumstances in domestic
legal systems.93 The project of international harmonization was never
uncontroversial and provoked tensions with domestic sites of govern-
ance, as evidenced by the attitudes of some national authorities creating
resistance to international standards. For instance, the deputy governor
of the Reserve Bank of India articulated a ‘national law perspective’
highlighting the ‘discretion’ and ‘considerable flexibility’ that officials in
India had while interpreting ‘general principles’ in international stand-
ards and bringing them in relation to the domestic legal order.94 This
language is similar to reception norms in its effect of creating distance
between international standards and the Indian domestic legal system.
After the 2008 financial crisis, the reform of the international financial
architecture emerged as a new site of struggle between lawyers, econo-
mists and policy-makers to redefine interactions between bodies of
norms.95 In this context, forms of entanglement mirrored the dominant
response to multiplicity, in particular at the IMF, that followed the Asian
financial crisis of 1997. Seeking more centralization and unity than
diversity and collaboration, many actors sought to frame multiplicity
from a systemic perspective, adopting a functional analysis. They have
often done so by deploying interface norms such as the ‘rule of law’.96
Particularly in Europe, a similar reliance on overarching norms charac-
terized most responses to institutional diversity,97 placing emphasis on

92
Chapter 1.
93
Task-Force of the Executive Committee on Economic and Social Affairs of the United
Nations, ‘Towards a New International Financial Architecture’, 15.
94
‘[T]here are several reasons to be circumspect about the role of standards and codes as
primary instruments of enhancing international financial stability.’ See Y. V. Reddy,
‘Legal Aspects of International Financial Standards – National Law Perspective’ (BIS
Review, 2002).
95
The financial press also promoted the idea of a formal amendment of Articles of
Agreement to transform the IMF in the new ‘guardian of the global financial system’.
See ‘Wanted: A Guardian of the World’s Financial System’, Financial Times (April 2007).
96
Cottier et al., The Rule of Law in Monetary Affairs.
97
C. Reinhart and K. Rogoff, ‘Regulation Should Be International’, Financial Times
(November 2008).

11.3.2 Making the Compendium of Standards: Straddling

Practices and Reception Norms
As a ‘joint product’, the Compendium was produced by an ad hoc Task-
Force on Implementation of Standards (Task-Force), a group of special-
ists104 that had been assembled by the FSF with the aim of developing a
‘strategy’ to strengthen ‘international consensus on key standards’ for
ﬁnancial stability. To shape the form and content of the Compendium,
the Task-Force drew upon ‘prior work’ by the IMF, World Bank and
standard-setting bodies in ‘promulgating and assessing observance of
standards’.105 Given the plurality of ‘economic and ﬁnancial standards’

98
M. Giovanoli and D. Devos (eds), International Monetary and Financial Law: The
Global Crisis (Oxford University Press, 2011).
99
Report by the High-Level Group on Financial Supervision in the EU (Chaired by Jacques
de Larosière), 2009, at 59. See chapter 4 of the report (Global Repair, Promoting
Financial Stability at the Global Level), 2009.
100
The ﬁnancial press appreciated the ‘step-by-step’ approach advocated by the de
Larosière group. See, ‘A Single Rulebook’, Financial Times (February 2009).
101
Report by the High-Level Group on Financial Supervision in the EU.
102
Ibid.
103
N. Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law
(Oxford University Press, 2010), chapter 2.
104
For the full list of members of the Task-Force, see FSF, ‘Issue Paper of the Task-Force on
Implementation of Standards’ (March 2000), 29–30.
105
Ibid., 3.

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recognized as relevant for ‘sound financial systems’, the Task-Force
highlighted a ‘subset’ of twelve standards that were ‘likely to make the
greatest contribution to reducing vulnerabilities and strengthening the
resilience of financial systems’.106 This group of experts recommended
that ‘policy-makers’ should focus on a ‘list of standards’ with ‘priority
implementation depending on countries’ circumstances’.
In a footnote of its report, the Task-Force articulated the rationale of
its decision-making by claiming that ‘while a broad range of political,
social, legal, and institutional factors impinge on financial stability, the
focus of the FSF is on economic and financial standards which are
generally accepted by the international community as being objective
and relatively free of national biases’.107 It is worth analysing how the
Task-Force simultaneously distanced a group of norms from the list
and brought other bodies of norms together. Indeed, it seems that the
Task-Force had recourse to a ‘knowledge practice’108 when it distin-
guished between, on the one hand ‘political’, ‘social’, ‘legal’ and ‘insti-
tutional’ norms, and on the other hand ‘economic and financial
standards for sound financial systems’. This practice of boundary-
drawing enabled the Task-Force to carve out what it termed ‘inter-
nationally accepted standards for economic, financial and market activ-
ities’, creating distance from norms that did not fit in that category.109
This technique contrasts with straddling practices, that is, ‘practices
that straddle different bodies of norms without being seen to belong to
either, thus blurring the boundaries between them’.110 However, strad-
dling practices were also at play in the making of the Compendium.
After distancing ‘political’, ‘social’, ‘legal’ and ‘institutional’ norms from
the scope of its work, the Task-Force assembled ‘the set of standards
it considers the most relevant to strengthening financial systems’.
By ‘drawing on prior work’111 the Task-Force connected twelve stand-
ards to create something new out of this assemblage, namely a
consolidated list of ‘key standards for sound financial systems’112

106
Ibid., 3.
107
FSF, ‘Issue Paper of the Task-Force on Implementation of Standards’, 7.
108
On ‘knowledge practices’ and their effects, see Riles, Collateral Knowledge.
109
FSF, ‘Issue Paper of the Task-Force on Implementation of Standards’, 7.
110
Chapter 1.
111
FSF, ‘Issue Paper of the Task-Force on Implementation of Standards’, 18.
112
Code of Good Practices on Transparency in Monetary and Financial Policies, Code of
Good Practices in Fiscal Transparency, Special Data Dissemination Standard/General
Data Dissemination System, Principles of Corporate Governance, International

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around which ‘international consensus’ had to be forged. This list of
‘twelve key standards’ then was the effect of a straddling practice,
blurring the boundaries between the bodies of norms that were
assembled in it. From the perspective of the Task-Force, the definition
of this select group of bodies of norms as ‘key international standards’
was crucial to achieve international consensus. In this assessment, the
Task-Force placed emphasis on those standards that were ‘endorsed’ by
the ‘international community’, by which the Task-Force meant in
particular national regulators, the IMF, the World Bank and inter-
national standard-setting bodies. In this way, the Task-Force brought
into a mutual relation the standards that had been recognized as
authoritative by the official sector of which the Task-Force itself was
a part. As a creation of the FSF, the Task-Force included representatives
of national governments, the IMF, the World Bank and the Basel
Committee on Banking Supervision. By bringing together and giving
weight to the standards that had been recognized by FSF members,
international financial institutions and international standard-setting
organizations, the Task-Force manifested a certain degree of self-
referentiality.113
The choice of focusing on standards produced and used by the ‘official
sector’ (i.e. public actors)114 created distance from norms of private
origin, with the exception of standards developed by the IASC and the
International Federation of Accountants. The Task-Force framed the
Compendium as a ‘one-stop reference’ to forge international consensus
on ‘key standards’, limiting disagreement on their definition and with the
aim of accommodating ‘a large number of standards’ that users could
easily refer to.115 For the internal organization of the Compendium, the
Task-Force preferred a ‘web-based’ structure to a hierarchical form to
create linkages with a corpus of other ‘relevant standards’ that were ‘not
less important than the 12 key standards [. . .] but [were] complemen-
tary’ to them.116 These complementary standards ought to be ‘organized

Accounting Standards, International Standards on Auditing, Core Principles for

Systemically Important Payment Systems, the Forty Recommendations of the
Financial Action Task-Force, Core Principles for Effective Banking Supervision,
Objectives and Principles of Securities Regulation, Insurance Supervisory Principles.
113
FSF, ‘Issue Paper of the Task-Force on Implementation of Standards’, 21.
114
IMF, World Bank, OECD, CPSS, FATF, BCBS, IOSCO, IAIS. Ibid., 19.
115
Ibid., 21.
116
Ibid., 20.

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separately’ under three different categories.117 The Task-Force also envis-
aged that additional standards could be added to the Compendium as
long as they were approved by relevant standard-setting bodies and FSF
members.118
After the financial crisis of 2008, the creation by the G20 of the FSB as
the successor of the FSF confirmed the forms of enmeshment construed
when the Compendium was still in the making. The number of standards
included in the Compendium grew considerably after the institutional-
ization of the FSB. As FSB members recognized new standards for ‘sound
financial systems’, the boundaries of the Compendium expanded akin to
the pages of a rule book, positing a distance between standards included
in the Compendium and other bodies of norms that were kept outside.
The incremental growth of the Compendium also strengthened the
position of the FSB as an actor in the organization of standards recog-
nized by the ‘official sector’.
At the FSB, structures and dynamics of entanglement may depend on
the actors involved in its decision-making.119 Here, the forms and con-
tent of interface norms may reflect the composition of the FSB but also
the set of relations that the FSB has with other actors and institutions in
the social and political environment in which it operates. With respect to
membership, existing analyses have placed emphasis on the interactions
between FSB members as central factors driving the activities of the FSB.
Characterized by a broader membership than the FSF, the FSB has been
portrayed as ‘a nexus point’ enabling interaction and communication
between ‘communities of private actors’ and ‘communities of states’.120
Stavros Gadinis has described it as ‘an umbrella organization that brings
together [. . .] networks of ministry executives, national regulators, and
private professionals’,121 placing emphasis on its strong ministry com-
ponent. As such analyses have shown, state officials from the G20 and
experts from standard-setting organizations have been the dominant

117
The categories that the Task-Force construed were: ‘broad headings’ (including macro-
economic fundamentals, institutional and market infrastructures, and ﬁnancial regula-
tion and supervision), ‘policy areas’ and ‘functional areas’. Ibid., 21.
118
Ibid., 21.
119
On the centrality of actors in the construction of entanglements, see Chapter 1.
120
L. C. Backer, ‘Private Actors and Public Governance beyond the State: The Multinational
Corporation, the Financial Stability Board, and the Global Governance Order’ (2011) 18
Indiana Journal of Global Legal Studies 751–802.
121
S. Gadinis, ‘Three Pathways to Global Standards: Private, Regulator, and Ministry
Networks’ (2015) 109 American Journal of International Law 1–57, at 56.

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    
players shaping the agenda of the FSB. This dominance is reflected for
example in the fact that there is a higher number of members from
countries which are a part of the European Union than from other
economies.122
On the other hand, participation from market actors and public–
private collaboration appear to be limited. According to the FSB’s self-
representation, the degree of recognition of actors and norms of private
origin seems rather limited. For example, the International Accounting
Standards Board, formally a private organization, is a member of the FSB,
and the International Financial Reporting Standards that they produce
have been included in the Compendium of Standards. However,
according to Annelise Riles, the FSB ‘fails to recognize the practical
authority of organizations such as the International Swaps and
Derivatives Association in constructing their own forms of international
financial governance beyond the state’.123 Thus, the interface norms
construed within the Compendium are likely to be shaped by the con-
vergence or competition of interests of the dominant public actors that
have access to the FSB and by the wider institutional environment (i.e.
the ‘international financial architecture’) in which the FSB itself is situ-
ated. For example, interactions between the FSB and the G20 may have
consequences for the types of norms that are brought in relation in
this context.
In the FSB context, straddling practices were not the only form of
entanglement. Rather, conditional recognition practices originally per-
formed by the Task-Force were also instrumental in organizing relations
between ‘key standards’, the ‘complementary standards’ included in the
Compendium and those yet to be included. Over time, FSB members
have relied on a set of ‘criteria for inclusion’ to give weight only to
standards deemed to be ‘relevant’, ‘implementable’, ‘internationally rec-
ognized’ and ‘widely applicable’.124 However, the combined application
of these criteria also consolidated a distinction between standards per-
ceived to meet these criteria and standards which failed to do so. The
interpretation of these requirements then had a rejection effect because it

122
D. Arner and M. Taylor, ‘The Financial Stability Board and the Future of International
Financial Regulation’, in R. Buckley, E. Avgouleas and D. Arner (eds), Reconceptualising
Global Finance and Its Regulation (Cambridge University Press, 2016), pp. 51–66.
123
Riles, ‘Is New Governance the Ideal Architecture’, 257.
124
These criteria of recognition have been published on the website of the FSB. See www.fsb
.org/work-of-the-fsb/about-the-compendium-of-standards/.

11.3.3 Connecting International Financial Standards

Financial regulators have also written reports containing recommenda-
tions that draw on previous reports or on documents written by other
actors. The practice of drawing on other actors’ bodies of norms have
often had the effect of blurring their boundaries to create something new.
Forms of entanglement have also been shaped in the context of insti-
tutional interactions between the FSB and international ﬁnancial insti-
tutions. For example, FSB member jurisdictions have decided ‘to undergo

125
See deﬁnition of ‘reception norms’ in Chapter 1.

126
See www.fsb.org/about/leading-by-example/participation/.
127
Gadinis, ‘The Financial Stability Board’, 161.
128
The Handbook for FSB Peer Review speciﬁes that ‘Country Reviews [. . .] examine the
steps taken or planned by national/regional authorities to address IMF-World Bank
Financial Sector Assessment Program (FSAP) and Reports on the Observance of
Standards and Codes (ROSCs) recommendations on ﬁnancial regulation and supervi-
sion.’ See Standing Committee on Standards Implementation, ‘Handbook for FSB Peer
Reviews’ (2017).
129
M. De Bellis, ‘Global Standards for Domestic Financial Regulations: Concourse,
Competition and Mutual Reinforcement between Different Types of Global
Administration’ (2006) 6 Global Jurist Advances, https://doi.org/10.2202/1535-1661
.1184.
130
See, for example, G. Sullivan, The Law of the List: UN Counterterrorism Sanctions and
the Politics of Global Security Law (Cambridge University Press, 2020).
131
Basel Committee on Banking Supervision, ‘Compendium of Documents Produced by
the Basel Committee on Banking Supervision’ (May 2001).
132
Basel Committee on Banking Supervision, ‘The Basel Framework’ (December 2019).
133
‘The regular reports by the IMF and the World Bank on the lessons drawn from
assessment experiences as part of FSAP exercises constitute a useful source of infor-
mation which has been used as an input to improve the Principles’. Footnote 40 at p. 28
of the chapter on Core Principles.

134
‘[S]upervisors should encourage the adoption of those recommendations of the
Financial Action Task-Force on Money Laundering (FATF) that apply to financial
institutions.’ Basel Committee on Banking Supervision, ‘Core Principles on Banking
Supervision’ (1997).
135
‘The revised 40 FATF Recommendations will provide an opportunity for the standard-
setting organizations to review their standards and guidance taking account of each
other’s work in this respect with the aim of preventing as far as possible inconsistencies
between their standards and guidance where this is unwarranted from a risk-based
approach.’ The Joint Forum Basel Committee on Banking Supervision, International
Organization of Securities Commissions, International Association of Insurance
Supervisors, ‘Initiatives by the BCBS, IAIS and IOSCO to Combat Money Laundering
and the Financing of Terrorism – Joint Statement’ (3 June 2003).
136
Basel Committee on Banking Supervision, ‘Customer Due Diligence for Banks’
(October 2001).
137
Following this, the BCBS stated that it was ‘pleased to note the extent to which its
publication Customer Due Diligence for Banks [. . .], has been reflected in the FATF’s
recommendations concerning customer due diligence. In all substantive respects, the
spirit of the Committee’s paper has been incorporated within the FATF approach.’ Basel
Committee on Banking Supervision, ‘Basel Committee Welcomes Revised FATF
Recommendations’ (2003).
138
‘[T]he IAIS adopted a Guidance paper on anti-money laundering and combating the
financing of terrorism [. . .] The new guidance paper takes into account the revised
FATF 40 Recommendations of June 2003 and the Methodology for Assessing compli-
ance with the FATF 40 recommendations and the 8 special recommendations issued in
February 2004, as well as the 8 Special Recommendations on Terrorist Financing of
October 2001.’ The Joint Forum: Basel Committee on Banking Supervision,
International Organization of Securities Commissions, International Association of

11.4 Conclusion
This chapter has focused on forms, locations and practices in which
relations between bodies of norms in global financial governance have
been defined in the aftermath of the Asian financial crisis and the global
financial crisis. Drawing on official pronouncements connected to the
IMF, the UN and the BIS, it has observed the different contexts in which
these relations have come about. The institutional memory examined has
provided traces of ad hoc but not uncontroversial construction of
entanglements and the participants and factors behind them. In many
of the sites of governance examined, different forms were articulated
through dynamic and informal interactions of a multiplicity of

Insurance Supervisors, ‘Initiatives by the BCBS, IAIS and IOSCO to Combat Money
Laundering and the Financing of Terrorism Update – Joint Statement’ (2005).
139
The European Banking Federation has referred to the plurality of norms contained in
the document ‘Basel III: Finalising Post-Crisis Reform’, which they call Basel IV, as a
‘package’. See EBF, ‘Summary on Basel IV in Europe’ (2019).
140
Chapter 1.
141
Previous work has suggested that international standards might be ‘mutually reinforcing’
through practices of cross-referencing and incorporation. See De Bellis, ‘Global
Standards for Domestic Financial Regulation’. On this ‘strategic’ path to entanglement,
see Chapter 1.

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regulators, international institutions and international standard-setting
organizations involved in the global governance of financial stability.
Competing ordering projects have emerged in different contexts in the
theory and practice of global financial governance over time. These
projects were also sites in which actors imagined different ways of
shaping ‘international standards’ and their relations, with implications
for the forms of entanglement that came about through their claims.
Since the second half of 1990s, the multiplication of standards deemed to
be relevant by financial regulators has triggered efforts to define their
relations, and regulators have relied on different interface norms at
different sites of governance to create order. International lawyers have
often imagined the global financial order from an intra-systemic perspec-
tive and sought to organize institutional pluralism through overarching
norms such as the rule of law.
Although many of the actors analysed imagine a global financial
system, there is a lack of general agreement on the implications for the
relations between different bodies of norms. Differently situated actors
defined their relative weight in different ways by placing emphasis on
different norms and sites of authority. For example, in their respective
ordering projects in response to multiplicity, officials at the UN, the IMF
and at the BIS have come up with conflicting views on the position of the
relevant sites of authority. From this perspective, the emerging overall
order remains pluralistic.
Drawing on the history of the Compendium of Standards, differences
between forms of entanglement connected with the Financial Stability
Forum and those linked to the IMF and UN contexts could be observed.
Standards included in the Compendium were ordered through an inter-
play of straddling practices and reception norms. When the
Compendium was still in the making, the former type of interface norm
appeared in the work of the Task-Force on Implementation of Standards.
In this context, boundary-drawing practices, too, were used to create
distance from norms that actors assembled at the FSF did not identify as
relevant. By contrast, other bodies of norms were connected to form an
official list of international financial standards, around which an inter-
national consensus had to be built. The making of a list of ‘twelve key
standards’ was the outcome of a straddling practice by the Task-Force,
which had the effect of blurring the boundaries between the bodies of
norms that were brought within this new list. However, the increasing
institutionalization of the FSB has been coupled with a greater emphasis
on practices of regulatory uniformity and centralization. Through the

142
FSB, ‘Framework for Strengthening Adherence to International Standards’ (January
2010); FSB, ‘A Coordination Framework for Monitoring the Implementation of
Agreed G-20/FSB Financial Reforms’ (2011).

Hidden in the Shades

Patterns of Entanglement within the Web of Corporate
Social Responsibility Law

 š          č                

12.1 Introduction
The field of corporate social responsibility (CSR) is a rapidly growing
area of transnational regulation that is characterized by a multiplicity of
norm-making processes in a variety of institutions and different forums.
These processes are reflexive, engaging in mutual interaction through
mirroring, distancing or complementing existing normative frameworks.
The resulting landscape of CSR is defined by contestation and entangle-
ment as CSR instruments of different origin coexist side by side, some-
times with competing claims to compliance. As a result, CSR is a
particularly fertile ground for studying how the relations between differ-
ent bodies of norms are construed.
This chapter sets out to understand how actors entangle CSR norms
and, in doing so, create an interlinked web of normative systems, both
formal and informal, operating within the state as well as without it.
Section 12.2 serves as a brief orientation within the complex world of
CSR, identifying the main discourses and categorizations. Out of the
multitude of collections of norms which come under the umbrella of
CSR, the chapter draws focus to meta-regulatory CSR norms, and in
particular the Organisation for Economic Co-operation and
Development (OECD) Guidelines for Multinational Enterprises (the
Guidelines).1 Being positioned at the intersection of traditional inter-
national law, soft law initiatives developed within international organiza-
tions, and private standards and codes, the Guidelines provide a focal

1
OECD, Declaration on International Investment and Multinational Enterprises Annex I:
Guidelines for Multinational Enterprises (adopted 21 June 1976, last amended 25 May
2011) OECD/LEGAL/0144.



12.2 The Contours of Corporate Social Responsibility

There is no single, accepted definition of CSR or its scope. Many defin-
itions exist, each highlighting different aspects of CSR according to the
interests of the defining actor. Business groups, for example, tend to
adopt definitions of CSR that highlight voluntariness, reinforcing the
distinction often made between law and CSR.2 Capital-exporting states
similarly emphasize the voluntary aspect of CSR. The EU, for instance,
defines CSR as ‘a concept whereby companies integrate social and envir-
onmental concerns in their business operations [. . .] on a voluntary

2
J. A. Zerk, Multinationals and Corporate Social Responsibility: Limitations and
Opportunities in International Law (Cambridge University Press 2006), p. 30.

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basis’.3 On the opposite end of the spectrum, non-governmental organ-
izations (NGOs) – confronted with the reality of human rights abuses
and environmental harms associated with the activities of global corpor-
ations – often prefer not to use the term CSR at all, rejecting the way it
has been framed and operationalized by businesses. For example, the
Amnesty International homepage on ‘corporations’ does not mention
the term ‘corporate social responsibility’ once. Instead, Amnesty
International calls for corporate accountability, thus bringing it closer
to the notion of accountability under law.4
The dichotomy about CSR being either intrinsically voluntary or
binding is somewhat misleading, however. As Zerk notes, the regulatory
impact of CSR provisions does not necessarily correlate to their formal
binding power.5 More neutral definitions of CSR thus avoid references to
the mandatory/voluntary distinction, emphasizing instead the social and
environmental embeddedness of corporate activities and focusing on the
corporate responsibility to address negative impacts while maximizing
positive contributions. In this vein, Aguinis and Glavas define CSR as
‘context-specific organizational actions and policies that take into
account stakeholders’ expectations and the triple bottom line of eco-
nomic, social, and environmental performance’.6 Similarly, Zerk defines
CSR as ‘the notion, that each business enterprise, as a member of society,
has a responsibility to operate ethically and in accordance with its legal
obligations and to strive to minimise any adverse effects of its operations
and activities on the environment, society, and human health’.7
In sum, CSR can encompass adherence to both voluntary commit-
ments and legal obligations with regard to corporations’ impacts on
society in the broad sense of the term. CSR norms can be codified in
many different forms and may be produced by a host of different actors.
Individual companies produce ‘codes of conduct’ containing general
principles for ‘ethical business conduct’, often applicable in relation to
suppliers/subcontractors, and occasionally linked to specific monitoring

3
EU Commission, ‘Green Paper: Promoting a European Framework for Corporate Social
Responsibility’ (adopted 18 July 2001) COM (2001) 366.
4
Amnesty International, Everything You Need to Know about Human Rights and Corporate
Accountability, www.amnesty.org/en/what-we-do/corporate-accountability/.
5
Zerk, Multinationals and Corporate Social Responsibility, p. 32 et seq.
6
H. Aguinis and A. Glavas, ‘What We Know and Don’t Know about Corporate Social
Responsibility: A Review and Research Agenda’ (2012) 38 Journal of Management 932–68,
at 933.
7
Zerk, Multinationals and Corporate Social Responsibility, p. 32.

12.3 Coordinated Interaction at the Meta-regulatory Level:

CSR Systems and Their Linkages
The uninhibited increase in the number of CSR systems and their ensu-
ing plurality makes them an excellent target for the study of legal
entanglement. The proliferation of CSR initiatives creates a veritable
‘market’ in which regulatory systems mutually interact, with cooperation
and competition representing merely the pinnacle of their diverse inter-
actions.8 This section focuses on meta-regulatory instruments which

8
Marx and Wouters map the dynamics of cooperation and competition in the more
narrowly construed space of voluntary sustainability standards – see A. Marx and
J. Wouters, ‘Competition and Cooperation in the Market of Voluntary Sustainability

Standards’, in P. Delimatsis (ed.), The Law, Economics and Politics of International

Standardisation (Cambridge University Press, 2015), pp. 215–41; see also S. Wood, K.
W. Abbott, J. Black, B. Eberlein and E. Meidinger, ‘The Interactive Dynamics of
Transnational Business Governance: A Challenge for Transnational Legal Theory’
(2015) 6 Transnational Legal Theory 333–69 for a more comprehensive study of dynam-
ics of interaction.
9
Although note that there is divergence on what meta-regulation means – Marx and
Wouters, ‘Competition and Cooperation in the Market of Voluntary Sustainability
Standards’, 37; cf. L. C. Backer, ‘From Guiding Principles to Interpretive Organizations:
Developing a Framework for Applying the UNGPs to Disputes That Institutionalizes the
Advocacy Role of Civil Society’, in C. Rodriguez-Garavito (ed.), Business and Human
Rights: Beyond the End of the Beginning (Cambridge University Press, 2017), pp. 97–110;
A. Loconto and E. Fouilleux, ‘Politics of Private Regulation: ISEAL and the Shaping of
Transnational Sustainability Governance – Politics of Private Regulation’ (2014) 8
Regulation & Governance 166–85; C. Parker, ‘Meta-Regulation: Legal Accountability for
Corporate Social Responsibility’, in D. McBarnet, A. Voiculescu and T. Campbell (eds),
The New Corporate Accountability: Corporate Social Responsibility and the Law
(Cambridge University Press, 2007), pp. 207–37.
10
L. C. Backer, ‘Rights and Accountability in Development (Raid) v. Das Air and Global
Witness v. Afrimex: Small Steps towards an Autonomous Transnational Legal System for
the Regulation of Multinational Corporations Case Notes’ (2009) 10 Melbourne Journal
of International Law 258–307, at 284.
11
See e.g. J. Murray, ‘A New Phase in the Regulation of Multinational Enterprises: The Role
of the OECD’ (2001) 30 Industrial Law Journal 255–70; S. Tully, ‘The 2000 Review of the
OECD Guidelines for Multinational Enterprises’ (2001) 50 The International and
Comparative Law Quarterly 394–404; J. L. Cernic, ‘Corporate Responsibility for
Human Rights: A Critical Analysis of the OECD Guidelines for Multinational
Enterprises International Law’ (2008) 4 Hanse Law Review 71–102.

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the adverse impacts which arise as part of their business activities. While
the recommendations themselves are not binding on corporations,
adhering countries (including some non-OECD countries) have an obli-
gation to promote the Guidelines.12 Over the years, the Guidelines have
undergone multiple revisions which have significantly expanded both
their subject scope and geographical reach, with the major revisions
happening in 2000 and 2011. From a legal entanglement perspective,
the earlier versions of the Guidelines were uninspiring as they ‘made no
reference to standards other than those created in the national sphere’.13
Despite the existence of reservations about the merits of ‘cross-pollin-
ation’ with other bodies of norms,14 however, the 2000 revision of the
Guidelines embraced coordinated entanglement through a number of
provisions in the updated text. First, the scope of regulation applicable to
corporate behaviour was extended beyond domestic norms to include all
‘applicable law’,15 clarified through the OECD’s commentary to the
Guidelines’ chapter on labour standards as referring to the idea that
enterprises can be subject to ‘national, sub-national, as well as supra-
national levels of regulation’.16 A similarly broad wording was adopted in
relation to the chapter on environment, which refers to ‘relevant inter-
national agreements, principles, objectives, and standards’.17 The
wording created an opening through which the Guidelines could be
entangled with other bodies of norms, at first being mainly restricted to
more traditional international law norms, but this continuously
expanded. Second, the 2000 version of the Guidelines explicitly identified
a number of instruments which were considered as a relevant resource to
determine the scope of obligations, or which the Guidelines were aligned
with. Out of those, the various ILO documents cited18 and the
International Organization for Standardization (ISO) Standard on
Environmental Management Systems stand out, as they can be seen as
directly competing with the Guidelines in the ‘market’ of transnational

12
OECD, ‘Decision of the Council on the OECD Guidelines for Multinational Enterprises’
(adopted 27 June 2000) OECD/LEGAL/0307. See also R. Nieuwenkamp, ‘The OECD
Guidelines for Multinational Enterprises on Responsible Business Conduct’ (2013)
Dovenschmidt Quarterly 171–5, at 172.
13
Murray, ‘A New Phase in the Regulation of Multinational Enterprises’, 258.
14
Tully, ‘The 2000 Review of the OECD Guidelines for Multinational Enterprises’, 397.
15
See 2000 edition of the OECD Guidelines, chapters I and IV.
16
Ibid., chapter IV commentary.
17
Ibid., chapter V.
18
Ibid., chapter IV.

19
Such as mutually enhancing legitimacy and the prevention of a race to the bottom
between standards – Marx and Wouters, ‘Competition and Cooperation in the Market
of Voluntary Sustainability Standards’, 232.
20
See 2011 edition of the OECD Guidelines, chapter I [1].
21
Special Representative of the Secretary-General, ‘Guiding Principles on Business and
Human Rights: Implementing the United Nations “Protect, Respect and Remedy”
Framework’ (21 March 2011) UN Doc A/HRC/17/31.
22
UNHRC, ‘Human Rights and Transnational Corporations and Other Business
Enterprises’ (6 July 2011) UN Doc A/HRC/RES/17/4.
23
Special Representative of the Secretary-General, ‘Protect, Respect and Remedy:
A Framework for Business and Human Rights’ (7 April 2008) UN Doc A/HRC/8/5.
24
K. Buhmann, ‘Business and Human Rights: Understanding the UN Guiding Principles
from the Perspective of Transnational Business Governance Interactions’ (2015) 6
Transnational Legal Theory 399–434, at 426.

25
J. G. Ruggie, ‘Hierarchy or Ecosystem? Regulating Human Rights Risks of Multinational
Enterprises’, in C. Rodriguez-Garavito (ed.), Business and Human Rights: Beyond the End
of the Beginning (Cambridge University Press, 2017), pp. 46–61, at p. 49; J. G. Ruggie and
T. Nelson, ‘Human Rights and the OECD Guidelines for Multinational Enterprises:
Normative Innovations and Implementation Challenges’ Corporate Social
Responsibility Initiative Working Paper No. 66 (2015) 426.
26
ILO, Tripartite Declaration of Principles Concerning Multinational Enterprises and Social
Policy (adopted November 1977, last amended 17 March 2017).
27
Ruggie, ‘Hierarchy or Ecosystem?’, 49–50.
28
Buhmann, ‘Business and Human Rights’, 427.
29
See Chapter 1, Section 1.5.1.
30
The effect of such straddling is that boundaries between bodies of norms are blurred.
Straddling practices are thus closest to what we would understand as trans-systemic
norms which ﬁnd applicability across multiple systems and have the ability to ‘weave’
linkages between them. See Chapter 1, Section 1.5.1.

12.4 Focal Points for CSR Interaction: NCPs as Sites

of Ad Hoc Legal Entanglement
One of the distinguishing features of the OECD Guidelines is their
implementation framework, based primarily on the practice of mediating
complaints (called ‘specific instances’) by NCPs established domestically
in countries adhering to the Guidelines. The geographic spread of NCPs,
significant differences in their inner organization and the flexible and
open-ended nature of the specific instance procedure create an inherently
diverse system which has proved to be a suitable breeding ground for ad
hoc legal entanglement. At present, there are forty-eight NCPs, distrib-
uted both in the home and host countries of multinational enterprises.
The Guidelines provide adhering countries with significant leeway when
it comes to setting up NCPs, with different organizational forms being
envisaged and with room for the involvement of a variety of stakehold-
ers.32 As the most recent annual report on the Guidelines shows, NCPs
appear to be operating with four decision-making structures with varying

31
H. Cullen, ‘The Irresistible Rise of Human Rights Due Diligence: Conﬂict Minerals and
beyond’ (2015) 48 George Washington International Law Review 743–80, at 745–49.
32
See 2011 edition OECD Guidelines, Procedural Guidance, Chapter I (A).

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    
degrees of interministerial integration and stakeholder engagement.33
The diversity of actors already involved at the organizational level creates
space for a variety of perspectives, and bodies of norms, to be brought to
the table. The inclusion of external CSR norms is further facilitated by
the open-endedness of the provisions on specific instances. The mandate
for specific instances is defined vaguely – essentially, it ‘is intended to
provide a consensual, non-adversarial, “forum for discussion”’.34 What
this means in practice, however, is open to interpretation by NCPs, and
as this section shows, NCPs do diverge significantly in the way they
understand this mandate.
At its simplest, the procedure is supposed to bring together interested
parties to discuss issues arising in relation to activities of multinational
enterprises which potentially impact on the implementation of the
Guidelines. The term ‘interested parties’ is important, as it denotes the
open-ended definition of who can trigger a specific instance. Complaints
are generally brought by NGOs supporting the claims of affected com-
munities but can also be initiated by trade unions, directly by concerned
individuals, multi-stakeholder initiatives, local communities, businesses
and even the NCPs themselves, showing that the potential range of actors
who can initiate procedures is extensive.35 There is similar flexibility
when it comes to the determination of relevant CSR norms, with the
Guidelines simply stating that specific instance proceedings should be
carried out ‘in accordance with applicable law’.36 In interpreting the
rather vaguely formulated provisions of the Guidelines, parties to the
NCP process can thus refer to external bodies of norms, including
international soft law. As neither the Guidelines nor the Procedural
Guidance set out how external norms should be brought to bear on the
Guidelines, normative relationing between bodies of norms in the NCP
process often has an ad hoc, even haphazard quality to it, relying on the
discursive contributions of the various actors involved in specific
instances. NCP case law thus provides a window into the still fuzzy,
emerging structures of the postnational world of law in which actors

33
OECD, ‘Annual Report on the OECD Guidelines for Multinational Enterprises 2018’
(2019) 35–6. For example, some NCPs are organised within a single ministry, others can
involve multiple ministries or governmental agencies, and the most unusual ones could
involve a multitude of stakeholders or be led by external experts.
34
OECD, ‘Guide for National Contact Points on Coordination When Handling Speciﬁc
Instances’ (2019), 4; 2011 edition OECD Guidelines, Procedural Guidance, Chapter I (C).
35
OECD, ‘Annual Report 2018’, 34.
36
2011 edition OECD Guidelines, Procedural Guidance, Chapter I (C).

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 š č    
irreverently weave loose ties between non-hierarchically situated bodies
of norms in new governance spaces.
The case studies in Sections 12.4.1–12.4.3 allow us to look through the
window and see whether patterns and common dynamics can be identi-
fied. The study provides an overview of over 130 concluded NCP cases
dating back to 2011 when the second revision of the Guidelines took
place. The study also includes a number of pre-2011 cases which provide
perspective on how the NCP system dealt with entanglement before the
revision. It is important to note that the majority of submitted com-
plaints are not resolved (a small number are withdrawn, many are
rejected and a significant number of cases are concluded without a
mediated agreement due to withdrawal by one of the parties).37
Moreover, only in rare cases are NCPs willing to make assessments of
non-compliance with the Guidelines in the absence of a joint/mediated
agreement. The present study only focuses on those specific instances
concluded by the NCPs (whether with or without a mediated agreement),
thus excluding cases which were not accepted or are still pending.
The picture which emerges shows a nuanced approach to normative
entanglement. While most complaints are concluded without references
to external norms, interaction with other bodies of norms is not uncom-
mon – some form of relationing was identified in around a quarter of the
cases studied. A dominant feature apparent from the cases is the notion
of different ‘shades of entanglement’, with NCP-specific instances which
demonstrate distancing and proximity occupying opposite ends of the
spectrum. Some of the examples cannot be clearly categorized as either
but nevertheless prove informative regarding how participants in the
NCP process construct the responsibilities of corporations under the
Guidelines by reference to other bodies of norms and thus fall into a
grey area somewhere in-between. However, even specific instances falling
into a single category show different intensities of each dynamic and
variation as to the ‘commitment’ by an NCP to distancing or proximity
between bodies of norms. Thus, while the three main categories are
useful from an analytical perspective, entanglement within the system
of the OECD Guidelines is best understood as operating on a spectrum
with different shades being present both between and within the two
opposite ends of the distancing–proximity dichotomy.

37
This is also true for this study – in the relevant period, only about half of the submitted
speciﬁc instances were formally concluded.

38
See Chapter 1, Section 1.4.3.
39
In general, the research found only a handful of examples of distancing within the
analysed cases but this may be a result of the methodology adopted which focuses only
on final statements within the specific instance procedure. Thus, if a body of norms was
identified as relevant within the earlier stages of a specific instance and the NCP
subsequently remained silent on its interaction with the Guidelines in the final statement,
it would fall outside of the scope of this research. This limitation means that the number
of examples of distancing may be underrepresented.
40
Italy NCP, Survival International Italia v. Salini Impregilo S.p.A. (Final statement)
(8 June 2017).
41
OAU, African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into
force 21 October 1986) OAU Doc CAB/LEG/67/3 rev. 5.

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 š č    
human rights. In response to this, the company highlighted its member-
ship of the UN Global Compact and adherence to a number of ISO
standards and sustainability policies. However, none of these found its
way into the examination carried out by the NCP nor into its final
recommendations. By remaining silent on their relevance to the specific
instance, the NCP can be seen as engaging in distancing and asserting the
dominance of the Guidelines. Another example of distancing through
silence occurred in Triumph International (2009).42 In this specific
instance, a coalition of labour unions and NGOs alleged that Triumph,
a Swiss company, had not complied with the Guidelines’ provisions
concerning employment. Unable to successfully initiate mediation
between the complainants and the company, the Swiss NCP concluded
the specific instance. Although the complaint referred to various bodies
of norms beyond the Guidelines, including the company’s own CSR code
of conduct and ILO documents, the NCP limited its analysis to the
Guidelines in the final statement. The silence of the Swiss NCP with
regard to assessing compliance with the OECD Guidelines in relation to
external bodies of norms can thus be interpreted as a form of distancing.
Interestingly, both of these specific instances related to conduct which
happened before 2011 and thus were decided on the basis of the pre-2011
Guidelines which contained only rudimentary human rights provisions.
The NCPs’ hesitant approach towards analysing compliance with regard
to human rights – as evidenced by the Italian NCP’s reluctance to engage
with external norms, including the ACHPR, in Salini – was indicative of
the uncertainty surrounding business and human rights at the time.
Sticking to the status quo position might have represented the conserva-
tive choice for NCPs unsure of where and how to position the 2000 ver-
sion of the Guidelines within the emerging business and human rights
‘galaxy of norms’.43

12.4.2 The Grey Area

With the next category of cases, the approach taken by NCPs is even
more ambiguous and moves away from efforts at distancing. The ana-
lysed cases can be seen as straddling a grey area between distancing and

42
Switzerland NCP, Speciﬁc Instance regarding Triumph in the Philippines and in Thailand
(Final Statement) (14 January 2011).
43
E. Diggs, M. Regan and B. Parance, ‘Business and Human Rights as a Galaxy of Norms’
(2019) 50 Georgetown Journal of International Law 309–62.

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    
proximity. Silence still plays a role here, but it has both an integrative and
exclusionary function. The dynamic in these cases can be described as
‘silent entanglement’ – NCPs rely on particular norms (as opposed to
bodies of norms) which are not clearly featured within the OECD
Guidelines without referring to the framework in which the norm ori-
ginated. This has been the approach adopted by the German NCP in the
NORDEX SE (2014)44 specific instance, which concerned a complaint by
an individual against a German wind turbine supplier involved in a wind
park energy project in Izmir, Turkey. The complainant pointed to gen-
eral failures in the respondent’s risk management, including insufficient
due diligence and failure to carry out an environmental impact assess-
ment – both concepts which can be found in the Guidelines. However,
the measures recommended by the NCP and accepted by the respondent
through the mediation procedure were more extensive. They included,
among other things, the carrying out of environmental and social impact
assessments which are distinct from EIAs and external to the
Guidelines.45 Despite recommending the use of a measure external to
the OECD system, the NCP did not provide any indication as to its origin
or contents, at least not publicly.
A similar process has occurred in relation to the concept of free, prior
and informed consent (FPIC) under the auspices of the Swiss NCP,
which utilized it on a couple of occasions without giving due consider-
ation to its integration into the Guidelines. FPIC is not mentioned within
the Guidelines, yet it was utilized in the World Wildlife Fund for Nature
International (WWF) (2016)46 specific instance. In 2016, Survival
International filed a landmark complaint against WWF for adverse
human rights impacts, including the establishment of protected areas
without the free, prior and informed consent of the Baka, an Indigenous
tribe in Cameroon. While mediation efforts failed, with the complainant
withdrawing from the process, the NCP nevertheless issued a final
statement and recommended to WWF ‘to help ensure open and trans-
parent FPIC processes in Cameroon’.47 As with ESIAs in NORDEX SE,
the NCP did not give any consideration to the pedigree of FPIC, again

44
Germany NCP, Dominic Whiting v. NORDEX SE (Final statement) (31 August 2016).
45
IFC Performance Standards are an example of a normative body which works with the
concept of ESIAs.
46
Switzerland NCP, Survival International v. World Wide Fund for Nature International
(Final statement) (21 November 2017).
47
WWF, p. 6.

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 š č    
engaging in silent entanglement. The Swiss NCP repeated this in the
Credit Suisse (2017)48 specific instance, brought in respect of the
respondent’s business relations with companies involved in the construc-
tion of the Dakota Access Pipeline. The mediation ended successfully,
with a joint statement in which the respondent committed to incorpor-
ating FPIC within its sector-specific policies. While the NCP simply
welcomed the respondent’s adoption of FPIC, it is notable that there
was not complete silence – Credit Suisse, quoting its modified internal
policies, traced FPIC to the IFC Performance Standards and the UN
Declaration on the Rights of Indigenous Peoples (UNDRIP).49 If any-
thing, however, this creates further confusion, as the silence by the NCP
stands in contrast with the acknowledgement by the corporation. There
are other plausible sources for the norm, notably ILO Convention 16950
which, in contrast to the UNDRIP, is legally binding. Moreover, there is
considerable disagreement as to whether FPIC represents a standalone
right or should be treated more as an overarching principle, with differ-
ences in interpretation existing depending on the norm-system within
which FPIC is being deployed.51 In such circumstances, the potential
problems caused by silent entanglement are further accentuated.
There is one more group of cases falling within the grey zone category,
representing instances where an NCP acknowledged the relevance of
other bodies of norms but does not say which ones it is referring to. In
the Atradius Dutch State Business (2015)52 specific instance, the NCP
noted that the respondent had a duty to ‘comply not only with national
and regional laws and regulations, but also with relevant international
norms and standards, including – but not limited to – the Guidelines’,
without specifying which norms and standards it considers as relevant.53

48
Switzerland NCP, Society for Threatened Peoples Switzerland (Final statement) (16
October 2019).
49
UNGA, United Nations Declaration on the Rights of Indigenous Peoples (adopted
2 October 2007) UN Doc A/RES/61/295.
50
ILO, Convention Concerning Indigenous and Tribal Peoples in Independent Countries
(adopted 27 June 1989, entered into force 5 September 1991) C169, Art. 16.
51
B. O. Giupponi, ‘Free, Prior and Informed Consent (FPIC) of Indigenous Peoples before
Human Rights Courts and International Investment Tribunals: Two Sides of the Same
Coin?’ (2018) 25 International Journal on Minority and Group Rights 485–529.
52
Netherlands NCP, Both ENDS et al. v. Atradius Dutch State Business (Final statement)
(30 November 2016).
53
Although in light of the mediation process, the details of which were mentioned in the
ﬁnal statement, it can be implied that ‘relevant standards’ referred to the UNGPs and IFC
Performance standards.

12.4.3 Proximity
The speciﬁc instances just covered show that the analysis is steadily
moving towards proximity between bodies of norms. Here, the existence
of varying shades of entanglement is particularly pronounced. It can
range from paying mere lip service to another framework by mentioning
it in passing, all the way to a thorough analysis of another system’s
approach to an issue and the intricate weaving together of norms. The
starting point here is those instances where entanglement is arguably
unsurprising because the external body of norms referred to is ‘inte-
grated’ or ‘enmeshed’ with the OECD Guidelines. The research then
turns towards the arguably most interesting examples of entanglement:
bodies of norms which are wholly external to the Guidelines.

12.4.3.1 Integrated Normative Systems

As noted earlier, some normative systems enjoy a privileged position in
terms of their relationship with the Guidelines as they are explicitly
mentioned in the text. The UN Guiding Principles as well as the ILO
Tripartite Declaration on Multinational Enterprises stand out in this
regard. However, just as with distancing and the intermediate category,

54
UK NCP, Rights and Accountability in Development (RAID) v. ENRC (Final statement)
(February 2017).
55
ENRC, p. 15.

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 š č    
proximity also appears in shades. In some specific instances, NCPs
simply note the alignment between the Guidelines and the other body
of norms, as the French NCP did in Michelin Group (2012) where the
UNGPs were mentioned as inspiration for the 2011 revision of the
Guidelines.56 On other occasions, alignment between the two standards
is noted in the context of applying a particular rule. This can be seen in
relation to the due diligence requirement of the UNGPs in the Danish
PWT Group (2014).57 Moreover, NCPs are not always the main drivers
behind proximity and the relevance of other bodies of norms is raised by
the parties to the complaint. This occurred in the Dutch NCP Bralima
and Heineken (2015)58 specific instance. Bralima, Heineken’s Congolese
subsidiary, was accused of labour misconduct in relation to the departure
of a group of employees from its Bukavu brewery in the period between
1999–2003, when an open conflict was ongoing in the Democratic
Republic of Congo. Given the historic nature of the complaint, the
NCP only played a restricted role and facilitated discussions between
the parties. With Heineken already having a human rights policy in place
by the time of the specific instance, the NCP encouraged ‘Heineken’s
commitment to continue working on an internal analysis of Heineken’s
existing policies and processes in the light of the Guidelines and the
[UNGPs]’.59 Another example is the Norconsult AS (2015) specific
instance, which was resolved through mediation and via a joint statement
between the complainants and respondent, endorsed by the Norwegian
NCP. In the statement, the respondent committed to respect Indigenous
peoples’ rights in accordance with ILO Convention 169 and acknow-
ledged the relevance of UNDRIP and the Universal Declaration of
Human Rights (UDHR) for its internal human rights policies. It is
interesting to see that parties to proceedings also push for proximity
through the specific instance procedure – it highlights that the inter-
twined nature of CSR norms is not only something imposed from above.
Efforts at creating proximity can also take a much stronger form, such
as an NCP extensively engaging with the substantive content of other
bodies of norms. One example is the Dutch specific instance VEON

56
France NCP, Tamil Nadu Land Rights Federation v. Michelin (Final statement) (29
February 2016).
57
Denmark NCP, Clean Clothes Campaign Denmark and Active Consumers v. PWT Group
(Final Statement) (17 October 2016).
58
Netherlands NCP, Former employees of Bralima v. Bralima and Heineken (Final state-
ment) (18 August 2017).
59
Bralima and Heineken, p. 5.

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    
(2016),60 which focused on a labour dispute between VEON, its
Bangladeshi subsidiary, and a trade union established at the
Bangladeshi operations. The complainants claimed that VEON tried to
suppress the employees’ attempts to unionize. However, the respondents
challenged this by stating that the trade union was illegitimate as it lacked
registration with the Bangladeshi authorities – a mandatory requirement
under the laws of Bangladesh, but in direct violation of the OECD
Guidelines and ILO regulations. The NCP recognized the ILO’s compe-
tence in this area, noting that ‘the ILO has stated on many occasions that
the stringent procedural conditions for the registration of trade unions in
Bangladesh are not in line with international legislation and necessitate
amendment of local legislation’.61 It suggested to VEON ‘to comply with
international labour law standards to the fullest extent possible’.62 In
essence, entanglement was utilized here strategically by the NCP in order
to assert the authority of a desirable outcome which might be seen as
contrary to the requirements of domestic law. Another example of reli-
ance on the substantive provisions is the Dutch Bresser (2017)63 specific
instance. The company, a specialist in object relocation, was responsible
for the relocation of a fifteenth-century tomb as part of the construction
of the Ilisu Dam in Turkey. The complainants claimed that Bresser failed
to adequately consult the local population before moving the tomb,
violating their right to culture. With the NCP noting that this was the
first instance in which the right to culture has been the subject of an NCP
procedure, it had to decide whether the matter comes under the scope of
the Guidelines. It affirmatively did so, but only through reliance on
Principle 12 of the UNGPs and its commentary, as well as Art. 15 of
the International Covenant on Economic, Social and Cultural Rights and
the UNESCO Declaration concerning the Intentional Destruction of
Cultural Heritage.64 The unexpected reliance on other bodies of norms
in determining whether an issue comes within the ambit of the
Guidelines underlines the strong proximity between the Guidelines and
the integrated normative systems, in particular the UNGPs.

60
Netherlands NCP, UNI Global Union v. VEON (Final statement) (11 February 2020).
61
Ibid., p. 5.
62
Ibid., p. 6.
63
Netherlands NCP, FIVAS, the Initiative to Keep Hasankeyf Alive and Hasankeyf Matters
v. Bresser (Final statement) (20 August 2018).
64
Bresser, p. 4.

12.4.3.2 Wholly External Bodies of Norms

Instances of creating proximity between bodies of norms are not only
restricted to those standards which are explicitly featured within the
OECD Guidelines – entanglement between the Guidelines and wholly
external bodies of norms is common. As the following cases show, NCPs
adopt a very ﬂexible interpretation of relevant frameworks, treating as

65
As far as ‘traditional’ human rights norms are concerned, the specialisation dynamic can
lead to the entanglement of norms which are not explicitly mentioned within the
Guidelines. This is as a feature of the text of the Guidelines which allows for the
consideration of additional human rights standards depending on the subject matter
which they address – see 2011 edition of the Guidelines, Chapter IV commentary at [40].
66
Denmark NCP, 3F v. Greenpeas Enterprise APS (Final Statement) (14 August 2014).
67
Ibid., p. 6.
68
Australian NCP, Australian Women Without Borders v. Mercer PR (Final statement)
(9 July 2019).

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    
‘applicable law’ not only international soft law, but also private agree-
ments and regulatory initiatives of a completely private nature. In add-
ition to having the consequence of ‘lumping together’ typologically
different bodies of norms with little nuance as to their bindingness, such
entanglement can have a major legitimizing effect for the external
systems due to the meta-regulatory stature of the Guidelines. In some
ways, this category of specific instances most closely demonstrates the
notion of entanglement as the cases often work with multiple bodies of
norms and create linkages between them in an unexpected, even irrever-
ent manner, weaving together a multidimensional web of CSR regulation.
Arguably a more doctrinally conservative collection of cases is repre-
sented by those specific instances displaying proximity between the
Guidelines and international normative systems developed within inter-
national organizations or as a result of agreement between states, and
such a dynamic predates the 2011 revision of the Guidelines. In Vedanta
Resources PLC (2008), Survival International submitted a complaint with
the UK NCP concerning Vedanta’s planned construction of a bauxite
mine in Orissa, India.69 Survival alleged that Vedanta’s operations were
inconsistent with the Guidelines and drew on international environmen-
tal law and human rights law to substantiate the claims. In coming to its
conclusions that the company had indeed breached the Guidelines, the
NCP emphasized the rights of Indigenous peoples under international
law, ‘including the [ICCPR], the UN Convention on the Elimination of
All Forms of Racial Discrimination, the Convention on Biological
Diversity and the UN Declaration on the Rights of Indigenous
People’.70 The NCP also found that Vedanta had not engaged in
adequate community consultation, interpreting the provision in light of
the 2004 Akwé Kon Guidelines produced by the Secretariat of the
Convention on Biological Diversity.71 Thus, the NCP found that the
company had breached the Guidelines by reference to an international
soft law produced by the secretariat of a multilateral environmental
agreement with no formal linkage to them. A post-2011 example is
the Dutch ING (2017)72 specific instance, which represented a broad
challenge to the respondent’s overall climate policy. The claimants

69
UK NCP, Survival International v. Vedanta Resources plc (Final statement)
(25 September 2009).
70
Ibid., p. 1.
71
Ibid., pp. 17–19.
72
Netherlands NCP, Oxfam Novib et al. v. ING (Final statement) (19 April 2019).

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 š č    
specifically required ING to report its indirect carbon emissions, accrued
through its loans and investments. Despite the broadly framed com-
plaint, the NCP managed to secure cooperation from the respondent
and, in doing so, entangled the freshly negotiated Paris international
climate agreement into the Guidelines.73 Not only was the Paris
Agreement identified as relevant, but ING agreed to utilize the method-
ologies of the Paris Agreement in ‘measuring, target setting and steering
the bank’s climate impact’.74 This indicates another layer to the ‘special-
ization’ dynamic, as the international norm might have been chosen not
only because of its closeness to the subject matter, but also because it
provides effective and appropriate methodologies and solutions which
the respondent could incorporate within its CSR policies.
However, coupling also happens with bodies of norms which are not
normally considered law or which might originate outside of a state-
centric environment, and again this is not limited only to the post-2011
version of the Guidelines. In Intex Resources ASA and the Mindoro Nickel
Project (2009),75 the complaint concerned alleged violations of the
human and environmental rights of Indigenous peoples that would be
affected by Intex Resources’ planned nickel mine and factory in the
Philippines. The Norwegian NCP concluded that the company had, inter
alia, failed to properly consult the affected groups, thus breaching the
Guidelines. As Intex had previously declared its adherence to the IFC
Social and Environmental Performance standards and the Equator
Principles, the Norwegian NCP repeatedly drew on the content of those
standards when determining whether the company had complied with
the Guidelines’ recommendation ‘to consider the views of other stake-
holders’. In addition, the NCP referred to the UNDRIP, ILO Convention
169 in order to interpret and ‘flesh out’ the recommendations of the
Guidelines.76 In this instance, the NCP made full use of the in-text
references to other bodies of norms in the Guidelines, as well as the
fact that the company itself had proclaimed adherence to the IFC
Performance standards.

73
Ibid., p. 3.
74
Ibid., p. 4.
75
Norway NCP, Future in Our Hands (FIOH) v. Intex Resources ASA (Final Statement)
(28 November 2011).
76
Ibid., p. 21 et seq.

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    
In the KiK Textilien und Non-Food GmbH, C&A Mode GmbH & Co.,
and Karl Rieker GmbH & Co. KG (2013)77 specific instance, the German
NCP provided an illustration of how private agreements can be entan-
gled. The case concerned a fire at the Tazreen Fashion factory in Dhaka,
Bangladesh, in November 2012. The complainant asserted that the
respondent companies were jointly responsible for the fire because they
continued to produce clothing at the site, even though an independent
safety assessment carried out in 2011 found that safety measures were
inadequate. All three enterprises were producing clothes in the factory
indirectly through subcontractors. While the complaint against C&A was
forwarded to the Brazilian NCP,78 the German NCP did investigate the
allegations against KiK and Karl Rieker. It did not consider the two
respondents’ direct liability for the fire to be substantiated, however, as
both companies proved that they discontinued production at Tazreen
Fashion over six months before the fire.79 The NCP did initiate medi-
ation proceedings for the part of the claim which concerned breaches of
the duty of care in relation to the safety measures within the factory. As
part of the mediation, the NCP and the parties relied upon the
Bangladesh Safety Accord to which KiK and Karl Rieker were both
signatories. While all parties were supportive of the measures taken as
part of the Accord, it is interesting that these were not deemed to be
sufficient and the NCP recommended other supplementary measures.80
The dialectic deployed in the mediation shows that entanglement in a
single case can be nuanced, with efforts to increase proximity but also to
distance norms and create hierarchy. Entanglement can thus be used to
further both legitimization and delegitimization. The parties and the
NCP embraced the measures of the Accord, recognizing it as relevant.
Yet, at the same time, the NCP limited its legitimacy by stating that the
Guidelines require supplementary measures to be taken. In doing so, it
reinforced the meta-regulatory status of the Guidelines and provided a
hint as to the emergence of a hierarchy between the two bodies of norms.
A very similar dynamic can be seen in the Rabobank (2014)81 specific
instance, in which the Dutch NCP considered the respondent’s provision

77
Germany NCP, Uwe Kekeritz v. KiK Textilien und Non-Food GmbH, C&A Mode GmbH
& Co., and Karl Rieker GmbH & Co. KG (Final statement) (November 2014).
78
As a result of the legal structures of C&A’s operations in Bangladesh at the time, the
entity responsible in this case was the Brazilian subsidiary of C&A.
79
KiK Textilien, pp. 3–4.
80
KiK Textilien, p. 6.
81
Netherlands NCP, Friends of the Earth v. Rabobank (Final statement) (15 January 2016).

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 š č    
of loans to the Indonesian palm oil company Bumitama. Interestingly, a
central part of the complaint became obsolete during the proceedings, as
Bumitama terminated the contract for the plantation which formed the
primary subject of the complaint. Nevertheless, the Dutch NCP con-
sidered that some parts of the complaint still merited further consider-
ation, allowing it to analyse more generally Rabobank’s policy in relation
to palm oil supply chains. A core part of this assessment was devoted to
Rabobank’s membership of the Roundtable for Sustainable Palm Oil
(RSPO), which is a global multi-stakeholder sustainability initiative.
A company wishing to become a member of the RSPO (and thus be able
to use the RSPO trademark ecolabel) has to undergo a certification
process, which itself is based on another set of private principles for
sustainability standards – the International Social and Environmental
Accreditation and Labelling (ISEAL) Alliance Credibility Principles,
which perform a meta-regulatory role within the sustainability standards
sector. By engaging the RSPO, the Dutch NCP is, possibly unknowingly,
entangling the Guidelines with two layers of normative systems.
Proximity within this specific instance takes the form of the NCP’s
cautious optimism about the RSPO in stating that its grievance mechan-
ism and commitment to a multi-stakeholder approach can be seen as
good practice within the palm oil production sector.82 However, the NCP
also notes the need for the respondent to develop its own practices
beyond the RSPO, even suggesting disengagement as an option of last
resort.
Thus, just as in the previous specific instance, we can identify a dual
dynamic of both proximity and distancing with an external standard. On
one hand, the NCP legitimizes the body of norms as a good practice, on
the other, it delegitimizes it by encouraging the respondent to look
beyond. The sense of hierarchy emerging between the Guidelines and
the RSPO is further reinforced by the fact that in RSPO (2018),83 a
complaint was brought directly against the Roundtable before the Swiss
NCP for the alleged failures of its complaint mechanism in dealing with a
land dispute between local communities in Indonesia and one of its
member companies. While the NCP was limited to the role of a mediator
and did not directly draw upon an external standard, the specific instance
is notable for the way in which it interacts with the RSPO as an external

82
Ibid., p. 4.
83
Switzerland NCP, TuK Indonesia v. Roundtable for Sustainable Palm Oil (Final state-
ment) (5 June 2019).

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    
system. The NCP carries out a somewhat supervisory role, relying on its
own leverage over the RSPO to push the sustainability standard itself
towards compatibility with the Guidelines. Thus, proximity and distan-
cing both seem to be present, drawing the bodies of norms closer but also
alluding to a hierarchy between them and, in doing so, demonstrating
another shade of the complexity of entanglement.
The Bresser specific instance and a number of others have already
shown NCPs drawing on multiple bodies of norms in one proceeding.
The final part of this section focuses on three specific instances featuring
this dynamic which were brought within the UK NCP system. These
arguably represent the strongest examples of proximity, invoking mul-
tiple normative systems and showing extensive interaction by the NCP.
The first specific instance is GCM Resources plc (2012),84 concerning
plans by the respondent to develop a mine in Bangladesh. The complaint
dates back to 2004 when GCM Resources began the planning and
consultation process for the mine. However, the company’s activities
were still effectively incomplete and on hold at the time of the complaint.
Thus, parts of the specific instance were handled under the 2000 version
as well as the 2011 version of the Guidelines. The respondent had
undertaken an ESIA as part of its planning and consultation process
which the NCP considered in light of the standards applied by the World
Bank and the IFC. While the NCP acknowledged that the self-regulatory
practices adopted by GCM Resources and based on the IFC standards
were sufficient, it pointed out inadequacies in relation to the respondent’s
communication of its plans to affected communities.85 In relation to
adverse human rights impacts before September 2011, the NCP noted
that the UNGPs were available to businesses from 2010 and also that
human rights concerns were incorporated in the IFC standards. The
NCP also noted the ‘company’s plans recognise the ILO standard on
Indigenous Peoples’.86 When considering activities happening after
September 2011, the NCP reiterated the relevance of the UNGPs and
highlighted the applicability a new set of IFC Performance Standards,
issued in 2012. The NCP also noted that the respondent’s updated plans
will have to consider the right to FPIC, as contained within UNDRIP.87

84
UK NCP, International Accountability Project and World Development Movement
v. GCM Resources plc (Final statement) (November 2014).
85
Ibid., p. 13.
86
Ibid., p. 15.
87
Ibid., p. 18.

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 š č    
The GCM Resources plc specific instance underscores that engagement
with human rights norms intensified in the post-2011 Guidelines, but
also shows that human rights considerations were clearly present even
before. Interestingly, the NCP indicated that the IFC Performance
Standards played a major role in this regard. The way in which the
concepts of ESIA and FPIC were treated is also notable – in contrast to
the examples of silent entanglement in NORDEX SE, WWF or Credit
Suisse, the UK NCP in GCM Resources plc was very explicit about
connecting ESIA with the IFC Performance standards and FPIC with
UNDRIP. This again shows that entanglement is nuanced, with proxim-
ity being a more dominant dynamic in the UK context.
The second UK-specific instance to consider is G4S plc (2013),88 which
also concerned actions spanning both the 2000 and 2011 versions of the
Guidelines. The complaint was addressed against the respondent’s pro-
vision and maintenance of security equipment (CCTV, baggage scan-
ners) at Israeli checkpoints within the Palestinian occupied territory and
within Israeli prisons. At the outset of its fact-finding, the NCP noted the
relevance of the 2004 International Court of Justice (ICJ) Israeli Wall
Advisory Opinion89 and the UK’s acceptance of the advisory opinion.90 In
contrast to GCM Resources plc, the NCP predominantly focused on the
respondent’s human rights obligations after 2011, putting the UNGPs
under the spotlight and drawing extensively on their provisions, espe-
cially those in regard to the termination of a business relationship.91
Private standards were also engaged – the NCP recognized the relevance
of the International Code of Conduct for Private Security Providers, ‘of
which G4S was a founder signatory in 2010’.92 However, the NCP also
explicitly dismissed another private initiative suggested by G4S
(Voluntary Principles on Security and Human rights) as it was princi-
pally relevant to the sectors of mining and energy.93 Showcasing both
proximity and distancing, the approach in G4S plc is another good
example of the specialization dynamic mentioned earlier.

88
UK NCP, Lawyers for Palestinian Human Rights (LPHR) v. G4s plc (Final statement)
(March 2015).
89
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
(Advisory Opinion) [2004] ICJ Rep 136.
90
Such as the FCO Overseas Business Risk and FCO Human Rights and Democracy
reports. G4S plc, p. 11.
91
Ibid., p. 13.
92
Ibid., p. 14.
93
Ibid.

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    
Finally, the KPO Consortium (2013)94 instance involved a consortium
of companies from three OECD member countries (Italy, the UK and the
USA) operating an oil and gas production facility in Kazakhstan. After
mutual agreement between the relevant NCPs, the UK NCP took care of
handling the complaint and engaged KPO as a single entity. The adverse
human rights impacts arose in relation to two households located within
a protective zone around KPO’s facility and who were consequently
entitled to resettlement and compensation. Just as before, the issues were
of a long-term nature, dating back to the 1990s and potentially involving
three different versions of the Guidelines. The UK NCP changed tack
from the previous specific instances by ingeniously applying the extensive
human rights provisions of the 2011 Guidelines even to situations
where the adverse impact arose before 1 September 2011 but was still
ongoing.95 This enabled the UK NCP to draw on the UNGPs and their
predecessor, the UN Protect, Respect and Remedy Framework.96 The IFC
Performance Standards were also considered relevant, as KPO received a
loan from the IFC, making their provisions directly applicable to the
project.97 The UK NCP went into some detail in considering how the
IFC’s standard for involuntary resettlement applied to the situation,
noting that the situation wasn’t a typical case for the IFC standard but
that KPO should have nevertheless applied it as good practice.98
The three specific instances show that the UK NCP’s approach is
closest in resemblance to a more traditional, adversarial method of
adjudication.99 Maheandiran suggests that the nature of the approach
adopted by an NPC can have an impact on the objectives and structure of
the specific instance procedure.100 It can be argued that this is also true
for the dynamics of entanglement, with the UK approach showing the
most extensive entanglement with multiple bodies of norms. As a conse-
quence of establishing liability within its approach, the UK NCP neces-
sarily considers the applicability of particular norms and systems in

94
UK NCP, Crude Accountability v KPO Consortium (Final statement) (November 2017).
95
Ibid., p. 9.
96
KPO Consortium, p. 16.
97
Ibid., p. 16. In fact, the complainant NGO even utilized the IFC’s complaints system
before resorting to the NCP procedure.
98
Ibid., p. 18.
99
B. Maheandiran, ‘Calling for Clarity: How Uncertainty Undermines the Legitimacy of
the Dispute Resolution System under the OECD Guidelines for Multinational
Enterprises’ (2015) 20 Harvard Negotiation Law Review 205–44.
100
Ibid., pp. 227–37.

12.5 Implications and Observations

The open formulation of the OECD Guidelines gives ample room for
NCPs to resort to external bodies of norms and to position themselves in
the context of a broader and evolving discourse around CSR. As shown
in Sections 12.3 and 12.4, the openness of the Guidelines has increased
over time, creating structural opportunities for entanglement. However,
as demonstrated by the specific instances covered, the NCP procedures
are incredibly varied and have the effect of producing a web of entangle-
ment. An NCP’s understanding of its own role or its organizational
structure and available resources can affect the degree to which it is
willing to promote entanglement with external norms. The more
restricted an NCP’s understanding of the scope of the Guidelines and
its role in the complaints process, the more reluctant it will be to make a
compliance assessment. In contrast, as has been demonstrated in the last
three UK-specific instances, an NCP that perceives its role as more than
being a simple mediator will be more inclined to take a proactive
approach in assessing the validity of a complaint which can increase
the likelihood of entanglement.
Variety is not limited to NCPs only, as the parties to the proceedings
have also been shown to drive entanglement. The broad formulation of
who can initiate a specific instance procedure and the diverse range of
entities which have found themselves in the position of respondents101
means that an extensive group of actors can bring their perspective (and
the bodies of norms to which they adhere) to the table. And, as the
specific instances of Bralima and Heineken or Norconsult AS highlight,
NCPs are often willing to endorse entanglement driven by the parties.
Additionally, the form and substance of (external) norms also affect
the likelihood of entanglement. For example, the World Heritage
Convention as a ‘list-based treaty’ invites entanglement more readily

101
Corporations, but also state-owned enterprises, state ministries, institutional investors
and even sustainability standard bodies and NGOs.

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    
than framework conventions such as the Convention on Biological
Diversity, which does not have a clearly defined scope and contains only
general provisions.102
Indeed, the categorization of specific instances adopted within this
chapter can be deceptive, as it simplifies a very nuanced picture of
entanglement in which multiple dynamics can be present in a single
case. Even examples of the same dynamic can take various forms and can
be framed in different terms, with different language corresponding to
the different shades of entanglement. The UK-specific instances are again
informative in this regard. In GCM Resources and G4S, when the NCP
considered a particular norm or standard as applicable, it would often
(but not exclusively) use the phrase ‘the NCP notes’ and then refer to the
relevant provision in question, possibly engaging with it in more detail.
The KPO instance stands in contrast to this, with the wording of ‘notes’
and a particular norm being much less used, and has been largely
replaced by two separate subsections within the specific instance
(‘Applicable Standards’ and ‘Guidance Available on Human Rights’)
which include the majority (but, again, not all) of the standards referred
to. Given that KPO represents a more recent instance, the change might
indicate a move towards more systematization in engagement with
norms external to the Guidelines. Another NCP to draw upon is the
Dutch one, which has also utilized the combination ‘note’/‘notice’ and a
particular norm on occasions,103 but has also relied on other formula-
tions such as ‘in light of’104 a particular system, especially when it makes
recommendations as to the conduct expected of a respondent. In general,
some formulations are becoming standardized but the shades of
entanglement are really characterized by diversity, mirroring the
Guidelines’ system, and maybe some indifference by the NCPs as to
the language they use.
This indifference is also visible in the way in which NCPs treat bodies
of norms with different legal status. Across the specific instances, one can
see a strong tendency to ‘lump together’ systems and standards with little
consideration for their legal authority or the manner in which they apply
to a respondent in NCP proceedings. The issue seems to be partly
structural. While the Guidelines in their chapter on concepts and

102
N. Affolder, ‘The Market for Treaties’ (2010) 11 Chicago Journal of International Law
159–96, at 185.
103
See e.g. VEON, ING.
104
See e.g. Heineken.

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 š č    
principles differentiate between ‘applicable laws’ on the one hand and
‘internationally recognised standards’ on the other,105 thus prima facie
recognizing the distinction between law in the strict sense of the word
and other bodies of norms, in other parts of the Guidelines the distinc-
tion is much more fluid. For example, the chapter on human rights
lumps together binding treaties and non-binding declarations without
differentiating between them. It is thus unsurprising to see NCPs being
indifferent in this regard, such as in Norconsult AS or Vedanta Resources
PLC, where the NCPs drew on the non-binding UNDRIP and Akwé Kon
Guidelines. This is particularly problematic when the NCP works with a
number of bodies of norms with different levels of bindingness. A similar
concern is the application of norms which are not addressed to corpor-
ations in the first place, but rather to states. Of course, the Guidelines do
provide a sort of transpositionary function in this regard, yet it is still
surprising to see that NCPs pay very little consideration as to how
normative systems developed for application in a state-centric (and thus
very different) context can be applied to corporations. Thus, while
instances of entanglement between transnational CSR norms and inter-
national law may strengthen the coherence of global law through active
coordination by the Guidelines, this may also lead to adverse effects as to
the integrity and normative force of international law. In this regard,
Affolder has drawn attention to how ‘corporate adoption and translation
of treaty norms’ may ‘ultimately undermine a treaty’s goals’ as companies
‘cherry-pick among treaty provisions, interpret treaty commitments in
their least onerous forms, and obscure the ways in which corporate
activities impede treaty implementation by selectively reporting on
instances where corporate policies and actions advance treaty norms’.106
From the evidence, it seems that NCPs might be complicit in allowing
corporations to do so through a mere lack of diligence within the specific
instance procedure.
The laxness in the NCPs’ approach might be partially attributed to the
perceived lack of enforceability and compliance with the specific instance
procedure.107 As the Guidelines are soft law and the specific instances do
not create legal obligations or benefit from formalized enforceability,

105
2011 edition of the Guidelines, chapter I [1].
106
Affolder, ‘The Market for Treaties’, 162.
107
A. Marx and J. Wouters, ‘Rule Intermediaries in Global Labor Governance’ (2017) 670
The ANNALS of the American Academy of Political and Social Science 189–206, at 195.

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    
NCPs can feel induced to be ‘generous’ with the application of bodies of
norms to a particular context. However, they would be well advised
to exercise caution in this regard as the decisions reached within a
specific instance are hardly inconsequential. As Nieuwenkamp high-
lights, the exercise of pressure by civil society, making diplomatic protec-
tion conditional upon compliance, or the consideration of specific
instances in decisions on the availability of export credits are only some
of the ways in which the Guidelines can have a major impact on
corporate behaviour.108 In fact, some elements of the Guidelines are
already undergoing a process of ‘hardening’ by being transposed into
domestic legislation, such as in the case of the due diligence obligation
within the US Dodd–Frank Act which uses the Guidelines’ provisions as
a reference point.109
Finally, it is notable what a prominent role has been assumed by
straddling practices within NCP proceedings, and in particular the
concept of due diligence. In the post-2011 specific instances analysed
in this chapter, the due diligence obligation of the respondent has been
invoked in the vast majority of cases. In the NCP system, due diligence
has outgrown the image of an import from the UNGPs and it is being
construed as inherent to the Guidelines. Such blurring of the origins of
the norm, coupled with its application in non-human rights-specific
contexts, provides attestation to its quality as a straddling practice
which distorts the boundaries of individual normative systems. The
OECD system doesn’t only apply the due diligence principle, it also
develops it further, going as far as producing a number of guiding
documents for the carrying out of due diligence.110 A similar dynamic
can be identified in relation to ESIAs and the concept of FPIC, with the
examples of silent entanglement identified showing that the norms are
being interpreted as cross-cutting norms and not necessarily
‘belonging’ to a single normative system. Thus, straddling practices
are emerging as one of the tools of entanglement within the system of
the Guidelines.

108
Nieuwenkamp, ‘The OECD Guidelines for Multinational Enterprises on Responsible
Business Conduct’, 174.
109
Ibid., 175; Cullen, ‘The Irresistible Rise of Human Rights Due Diligence’, 744.
110
E.g. OECD, ‘OECD Due Diligence Guidance for Responsible Business Conduct’ (2018);
or OECD, ‘OECD Due Diligence Guidance for Responsible Supply Chains in the
Garment and Footwear Sector’ (2017).

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 š č    
12.6 Conclusion
At the outset of this chapter, the inherent pluralism within the regime
of CSR regulation of business conduct was noted as a dominant
feature. Even though the analysis zoomed in on one particular focal
point for entanglement, the OECD Guidelines, multiplicity and vari-
ation did not leave the picture. Instead, the system of the Guidelines
can be still characterized by a plurality of bodies of norms which are
the target of engagement and a plurality of shades of entanglement.
Thus, in a sense the OECD Guidelines are reflective of the dynamic
which exists in the wider world of CSR normativity. As the section
dealing with coordinated legal entanglement has shown, the openness
of the Guidelines can be attributed to the structural features of the
system which provide the necessary flexibility for the interaction with
other bodies of norms. Moreover, the manner in which the UNGPs
were integrated into the Guidelines shows that these structural features
are not accidental – rather, they represent deliberate decisions to create
linkages between CSR systems, arguably motivated by the potential
benefits which accrue from cooperation between bodies of norms
within the field of CSR.
If the provisions of the Guidelines lay the groundwork for extensive
entanglement, the implementation mechanism of NCPs does a very good
job in building up the rest of the structure. It is in Section 12.4 where the
true scope of entanglement within the system of the Guidelines is
demonstrated. Although the dialectic of distancing and proximity is
utilized in order to frame the discussion, Section 12.4 illustrates that
the identified shades of entanglement are often not easily subsumed
within either of the main categories mentioned. This is exacerbated by
the fact that entanglement often happens with multiple bodies of norms
at once. Overall, NCPs appear to be more likely to engage other bodies of
norms in ways which enhance proximity between them, often creating
irreverent linkages with both public and private frameworks. While some
bodies of norms are relied upon in general contexts, other external norms
are used as specialized precision tools when their provisions are closely
related to the subject matter of a specific instance. The use of certain
norms is characterized by silence as to the normative system in which
they originate, underlining their status as straddling practices which can
span across multiple bodies of norms. On the distancing end of the
spectrum, we saw only limited efforts at drawing borders between
systems – instead, efforts at distancing were utilized to hierarchically

Situating Entanglements

Entangled Legalities beyond the (Byzantine) State

Towards a User Theory of Jurisdiction

 

13.1 Introduction
At the outset, I ask the historian to look upon Indian America as a Middle
Ages which was missing its Rome: a confused mass that emerged from an
ancient syncretism, which was without doubt very loosely textured, that
had contained within itself at one and the same time, for many centuries,
centres of advanced civilisation and savage peoples, centralizing tenden-
cies and disruptive forces.1

In 1964, the French social anthropologist and exponent of structuralism,

Claude Lévi-Strauss, published volume one of his celebrated series
Mythologiques: Le Cru et le Cuit, translated into English in 1969 as The
Raw and the Cooked. In the volume’s introductory chapter, Lévi-Strauss
offered an explanation of the group nature of the Amerindian myths
analysed in the volume. With his arresting image of Indian America
before the ages of European conquest as ‘a Middle Ages which was
missing its Rome’, Lévi-Strauss invoked a – seemingly eternal – idea of
‘Rome’ as a source of order and normativity. For Lévi-Strauss, the
structure of Amerindian mythologies differed from those of medieval
Europe because there was no ‘Rome’ – neither empire nor Church – to
act as a centralizing, structuring, unifying force. Nonetheless, as
Lévi-Strauss’ Mythologiques set out to prove, there was structure to the

1
C. Lévi-Strauss, Mythologiques: Le Cru et le Cuit (Plon, 1964), p. 16 (own translation): ‘On
commencera donc par inviter l’historien à voir, dans l’Amérique indienne, un Moyen âge
auquel aurait manqué sa Rome: masse confuse, elle-même issue d’un vieux synrétisme
dont la texture fut sans doute très lâche, et au sein de lacquelle subsistèrent çà et là,
pendant plusiers siècles, des foyers de haute civilisation et des peuples barbares, des
tendances centralisatrices et des forces de morcellement.’



2
Ibid., p. 11: ‘Des ﬁlaments épars se soudent, des lacunes se comblent, des connexions
s’établissent, quelque chose qui ressemble à un ordre transparait derrière le chaos. Comme
autour d’une molécule germinale, des séquences rangées en groupes de transformations
viennent s’agréger au groupe intial, reproduisant sa structure et ses déterminations. Un
corps multi-dimensionnel nâit, dont les parties centrales dévoilent l’organisation alors que
l’incercitude et la confusion règnent encore au portour.’
3
K. J. Alter, The New Terrain of International Law: Courts, Politics, Rights (Princeton
University Press, 2014), p. 3.
4
Ibid., p. 3.
5
D. Kennedy, ‘Law in Global Political Economy: Now You See It, Now You Don’t’, in P. F.
Kjaer (ed.), The Law of Political Economy: Transformation in the Function of Law
(Cambridge University Press, 2020), pp. 127–51, at p. 128.
6
Quotation from R. Michaels, ‘What Is Non-state Law? A Primer’, in M. A. Helfand (ed.),
Negotiating State and Non-state Law: The Challenge of Global and Local Legal Pluralism
(Cambridge University Press, 2015), pp. 41–58, at p. 55. On ‘the peace of Westphalia’
(1648) and the emergence of the modern state as ‘an international subject’ see A. Cassese,
‘States: Rise and Decline of the Primary Subjects of the International Community’, in

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    
conﬂicts between the legal orders themselves’, relying on relevant domes-
tic choice-of-law principles and rules in order to resolve legal disputes
with a foreign element.7 As Neil Walker notes, choice-of-law rules ‘and
the interpretative aids of transnational law do not “stand above” the
domestic systems in which they are applied. Rather, they are formulated
or interpreted each in the context of their own system – in deference to
and under the self-validating terms prescribed by each domestic legal
order’s sovereign authority.’8 Notwithstanding the ‘equality’ between
different domestic legal orders, the system of private international law
prioritizes national sovereignty and is grounded within a hierarchical – in
a Kelsenian sense – approach to international governance.
In contrast, the ‘postnational’ approach, as deﬁned by Nico Krisch
in his 2010 Beyond Constitutionalism: The Pluralist Structure of
Postnational Law and further developed by the ‘Entangled Legalities’
project underlying this volume, argues that ‘national’ and ‘international’
law are interwoven to such an extent within the supranational legal order
that norms and principles from both spheres interact heterarchically:
‘operating side-by-side without the presumptive authority of one over the
other’.9 Like Lévi-Strauss’ pre-conquest Amerindian myths, there is no
centre or hierarchy (no ‘Rome’) to structure postnational law.
Nonetheless, again like Lévi-Strauss’ account of Amerindian myth-
making, there is a structure at work: ‘the nation-state itself shares ultim-
ate authority with multiple regional and international legal orders with
which it interacts without a common normative framework – hence a
post-national law within a pluralist structure’.10 Instead of mapping the
contours of an emerging global constitutional framework in which

B. Fassbender and A. Peters (eds), The Oxford Handbook of the History of International
Law (Oxford University Press, 2012), pp. 49–69.
7
R. Michaels, ‘A Symmetry of Asymmetries? A Private-International-Law Reconstruction
of Lindahl’s Work on Boundaries’ (2019) 29 Duke Journal of Comparative and
International Law 405–22, at 410.
8
N. Walker, ‘Beyond Boundary Disputes and Basic Grids: Mapping the Global Disorder of
Normative Orders’ (2008) 6 (3–4) International Journal of Constitutional Law 373–96, at
377.
9
C. Mac Amlaigh, ‘Pluralising Constitutional Pluralism’, in N. Roughan and A. Halpin
(eds), In Pursuit of Pluralist Jurisprudence (Cambridge University Press, 2017), pp. 64–89,
at p. 68.
10
G. Shaffer, ‘A Transnational Take on Krisch’s Pluralist Postnational Law’ (2012) 23 The
European Journal of International Law 565–82, at 566 (review of N. Krisch, Beyond
Constitutionalism: The Pluralist Structure of Postnational Law (Oxford University Press,
2010)).

We shall return to the idea of interface norms structuring ‘ﬂuid and

shifting relations between different bodies of norms’ in greater detail in
Section 13.2. For the moment, we should simply note that the ‘postna-
tional space seems to demand new, different, answers to the question of
how to structure governance’.12
Rafael Domingo has recently argued, in the context of ‘global consti-
tutionalism’, that if the future of the supranational legal order is post-
sovereigntist, postnationalist and postpositivist, ‘Roman law was, so to
speak, pre all of them: presovereigntist, prenationalist, and prepositi-
vist’.13 Most legal historians would agree, however, that there was some-
thing akin to ‘international law’ in Greco-Roman antiquity (and in earlier
antiquity too): a rule of law that governed relations between states,
alongside the use of brute force.14 Historians of Greco-Roman ‘inter-
national law’ tend to focus predominately on the laws of war and

11
L. L. Reimers and F. Corradini, ‘The Entanglement of Global Legal Order’, The Global
(9 July 2018), https://theglobal.blog/2018/07/09/the-entanglement-of-global-legal-order/.
12
Krisch, Beyond Constitutionalism, 69.
13
R. Domingo, ‘Roman Law and Global Constitutionalism’ (2019) 21 San Diego
International Law Journal 217–40, at 218. See also T. Duve, ‘Entanglements in Legal
History. Introductory Remarks’, in T. Duve (ed.), Entanglements in Legal History:
Conceptual Approaches (Max Planck Institute for European Legal History, 2014),
pp. 3–25, at p. 3: ‘In large part, legal historical research is dedicated to times and spaces
in which the notion of the “modern state” did not exist, or to historical situations of
limited statehood.’
14
D. J. Bederman, International Law in Antiquity (Cambridge University Press, 2001). For
further discussion see R. Lesaffer, ‘Roman Law and the Early Historiography of
International Law: Ward, Wheaton, Hosack and Walker’, in T. Marauhn and H. Steiger
(eds), Universality and Continuity in International Law (Eleven International Publishing,
2011), pp. 149–84, at pp. 149–52.

There follow various provisions outlining what should happen if the

judges from the frontier zone are unable to resolve a dispute, culminating
in a referral to the relevant ruler and a one-year delay before the peace
treaty is held to have been broken. The fact that the provisions of the 562
 treaty itself were negotiated and concluded on the frontier between
the Roman and Sasanian Empires, at the border city of Dara, is a further
reminder of what the plural constitutionalist theorist Neil Walker terms
the ‘centrality of the margins’.18 Articles 7 and 11 of the 562  treatise,
moreover, provide concrete examples of how action at the margins can

15
The Greek text is included in a sixth-century CE history written by ‘Menander Protector’,
Fragment 6.1. 314–97. English translation from G. Greatrex and S. Lieu, The Roman
Eastern Frontier and the Persian Wars: Part II AD 363–630 (Routledge, 2002), pp. 132–3
(revised Menander Protector, The History of Menander Protector, ed. and trans. R.
Blockley (F. Cairns, 1985).
16
Greatrex and Lieu, The Roman Eastern Frontier, p. 133 (my emphasis).
17
Ibid., p. 133.
18
Walker, ‘Beyond Boundary Disputes and Basic Grids’, 376–85 and 394–5.

19
For further discussion see H. Cotton, ‘Private International Law or Conﬂicts of Laws:
Reﬂections on Roman Provincial Jurisdiction’, in R. Haensch and J. Heinrichs (eds),
Herrschen und Verwalten. Der Alltag der römischen Administration in der Hohen
Kaiserzeit (Böhlau, 2007), pp. 235–55.
20
U. Babusiaux, ‘Coordination of Different Layers of Law in the Roman Empire and in the
European Union’, in U. Babusiaux and M. Igimi, Messages from Antiquity: Roman Law
and Current Legal Debates (Böhlau Publishers, 2020), pp. 131–67, at p. 131 (my
emphasis).
21
Famous examples include Cicero’s discussion of Roman jurisdiction in Sicily, 70 BCE
(Against Verres II, 2.32) and the Cyrene edicts of the Emperor Augustus, 7–4 BCE. See
further J. Richardson, ‘Roman Law in the Provinces’, in D. Johnston (ed.), The Cambridge
Companion to Roman Law (Cambridge University Press, 2015), pp. 45–58.
22
G. Minaud, Les gens du commerce et le droit à Rome: Essai d’histoire juridique et social du
commerce dans le monde antique romain (Presses universitaires d’Aix-Marseille, 2011).
23
D. Daube, ‘The Peregrine Praetor’ (1951) 41 The Journal of Roman Studies 66–70.

24
J. Crook, Law and Life in Ancient Rome (Cornell University Press, 1967), p. 29.
25
C. Humfress, ‘Law’s Empire: Roman Universalism and Legal Practice’, in P. du Plessis
(ed.), New Frontiers: Law and Society in the Roman World (Edinburgh University Press,
2013), pp. 73–101.
26
On the concept of Rechtsschichten, see Babusiaux, ‘Coordination of Different Layers of
Law’, 131–2.
27
Cf. J. Waldon, ‘Partly Laws Common to All Mankind’: Foreign Law in American Courts
(Yale University Press, 2012), pp. 33–5, which makes use of the same Gaius passage in its
title: Gaius, Institutes 1.1.1 (The Institutes of Gaius, trans. W. Gordon and O. Robinson
(Duckworth, 1988), p. 19).
28
K. Tuori, ‘The Reception of Ancient Legal Thought in Early Modern International Law’,
in B. Fassbender and A. Peters (eds), The Oxford Handbook of the History of International
Law (Oxford University Press, 2012), pp. 1012–33, at pp. 1016–18, citing Cicero, On
Duties 3.17.69 and 3.5.23, Tusculan Disputations 1.13.30 and The Divisions of Oratory
37.130; Gaius, Institutes 1.1; Aulus Gellius, Attic Nights 6.3.45; and Justinian Digest,
1.1.1.2, 1.1.4, 1.1.6 (Ulpian).

The structuring of the different layers of (Roman) law was thus case-
specific and dependent on the specialized reasoning techniques of the
jurists themselves. In one sense, then, these Roman layers of law can be
said to have operated heterarchically: side by side without the presump-
tive authority of one over the other. Yet the crucial point here is that it
was the Roman jurists, the expert legal actors, who provided the overall
structure by reasoning out potential overlaps, entanglements and clashes
casuistically.31
As I argue in Section 13.2, ‘postnational’ law’s focus on legal norms
and principles is itself influenced by a modern (Western) tradition: a
tradition that links normative-conceptual approaches to ‘defining what
law is’ with territorial approaches to defining nation state sovereignty.32
Rather than locating multiplicity and plurality in different bodies of

29
Babusiaux, ‘Coordination of Different Layers of Law’, 132–43.
30
Ibid., 142–3.
31
Babusiaux, ibid., suggests that the relevant Roman juristic techniques were developed
from Roman rhetorical theory and practice. The article goes on to suggest the potential of
applying a similar approach to the ‘coordination of different layers of law’ within the
European Union.
32
See further M. Madero, ‘Penser la tradition juridique occidentale’ (2012) 67(1) Annales.
Histoire, Sciences Sociales 103–32, at 109–10 on the ‘fundamental link between the

13.2 Beyond ‘Norms’ and the Nation State

As the territorial argument ceases to be the decisive factor for the frontiers
of legal orders, a picture unfolds in which the normative-conceptual
dimension becomes increasingly important in deﬁning what law is.34

From the later twentieth century onwards, jurisprudential attempts to

define ‘what law is’ have become increasingly concerned with the
normative-conceptual boundaries of legal ‘systems’, as opposed to the
territorial boundaries of sovereign (nation) states.35 As Michael Guidice
stated in his ‘think piece’ for the Geneva 2019 meeting, with reference to
H. L. A. Hart, Hans Kelsen and Joseph Raz: ‘The concept of a legal
system makes it possible to conceive of the membership of all norms
within some domain.’ Defining a legal system primarily in terms of the
norms that it ‘contains’, in turn, enables the idea of ‘norm interaction’
across all levels of ordering. Defining the boundaries of legal systems
in terms of norms and rules thus opens up space to identify pluralist
legal orderings, operating within and beyond the ‘conventional, and

political stakes of theories of the state and the role of law in the Western political
tradition’.
33
Lévi-Strauss, Mythologiques, p. 20: ‘Nous ne prétendons donc pas montrer comment les
hommes pensant dans les mythes, mais comment les mythes se pensent dans les hommes,
et à leur insu.’
34
D. Roth-Isigkeit, The Plurality Trilemma: A Geometry of Global Legal Thought (Springer
International Publishing, 2018), p. 66.
35
Walker, ‘Beyond Boundary Disputes and Basic Grids’, especially 373.

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  
conventionally separate, structures of constitutional law (considered as
the law of the Keynesian-Westphalian state) and international law (con-
sidered as the law between Keynesian-Westphalian states)’.36 According
to Nico Krisch, ‘The resulting “postnational law” is thus a frame com-
prised of different orders and their norms.’37 Norms which, as we saw in
Section 13.1, exist in heterarchical – rather than hierarchical – relation to
each other. Hence one of the central claims of Krisch’s ‘postnational law’
paradigm: ‘that global law fares better if it embraces plurality, rather than
trying to tame it in an institutional model’.38
To a historian whose research interests lie mainly within the presover-
eigntist, prenationalist and prepositivist world, the centrality of norms
within ‘postnational law’ and the ‘Entangled Legalities’ project seems
striking. Not only is the ‘frame’ of postnational law made up of orders
which in turn are made up of norms, but the mechanism through which
norm interaction is seen to take place is defined as a set of new types of
norms, operating at the interfaces between different legal suborders. This
set of new types of norms includes ‘reception norms’: ‘the typical form
through which a legal system deals with norms from the outside; they
reproduce the inside/outside distinction and define the ways in which
outside norms enter a given body of norms’ (also referred to as between
systems/conflict-of-law norms); ‘overarching norms’ which ‘regulate rela-
tions centrally and with binding character for the different bodies of norms
involved’ (also referred to as within system/intra-systemic norms); and
‘connecting norms’ and ‘straddling pactices’, the ‘norms and practices that
straddle different bodies of norms without being seen to belong to either,
thus blurring the boundaries between them’ (‘straddling boundaries’).39
Norms have a ‘travelling content’ through which they perform their
operations, becoming entangled within a broader discursive context:
Actors – litigants, judges, dispute settlers, observers, addressees – make
claims about the relation of norms from different backgrounds, and they
thus define and redefine the relative weights and interconnection between
the norms at play. They also define the extent to which norms are
perceived to form part of broader assemblages – in the relatively stable
and firm mode of modern state legal orders, or in more porous ways, with
a more open interplay of norms and characterized more through their

36
Walker, ‘Beyond Boundary Disputes and Basic Grids’, 374.
37
Krisch, Beyond Constitutionalism, p. 12 (my emphasis).
38
Roth-Isigkeit, The Plurality Trilemma, p. 158.
39
Chapter 1, Section 1.5.1.

The explicit focus here is on postnational governance structures and

dispute resolution; nonetheless, using norms (and rules) as the primary
tools for identifying and framing legal systems is very much part of a
modern, ‘Keynesian-Westphalian’, state-sovereigntist, framework. As
Roth-Isigkeit states: ‘the legitimacy of norm creation seems one of the
most important achievements of the national state’.41 What might appear
(to ‘us’) as natural and timeless features of ‘strong’ legal norms and
rules – their binding quality, their normativity, their legitimacy – have
in fact been created through modern processes of nation state formation.
With its main focus on legal norms – even entangled ones – the
‘Entangled Legalities’ project does not move us much beyond the
(national) state. The fact that the project also includes some analysis of
‘weaker’ (‘informal, unenforced’) entangled norms, however, does poten-
tially open up the ﬁeld to much broader, legal pluralist, perspectives.
The idea that ‘strong’ legal norms have a jurisdictional aspect is central
to both the state-sovereigntist and the postnational-pluralist ‘normativi-
sation’ (Durchnormierung) of law:
In addition, all rules have a jurisdictional aspect, or an aspect of distribu-
tion of power. This is an aspect of legal rules that is sometime overlooked.
A legal rule, as we use the term here, attaches consequences to facts. But
consequences do not attach to conduct by themselves; someone must
manipulate the strings. Each rule, to be a meaningful rule, must carry with
it a ticket to some person, agency, or institution, authorizing, permitting,
forbidding, or allowing some action to take place. Each rule has its insti-
tutional and distributive side as well as its formal and substantive side. It
distributes, or redistributes, power within the legal system or within the
social order.42

The modern (Western) idea that every legal rule carries with it a ‘ticket’
to institutionalized enforcement links back to the presumption, discussed

40
Chapter 1, Section 1.2.
41
Roth-Isigkeit, The Plurality Trilemma, p. 60 (my emphasis).
42
L. M. Friedman, ‘Legal Rules and the Process of Social Change’ (1967) 19 Stanford Law
Review 786–840, at 788.

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  
in Section 13.1, that law is only meaningful when backed by state
power or – to phrase it more loosely – when structured by a Lévi-
Straussian ‘Rome’.
‘Law in action’ and ‘law in practice’ approaches tend to rely on this
modern, Western, idea of legal norms and rules carrying a jurisprudential
aspect. It is inherent, for example, in Neil MacCormick’s call for a ‘user-
orientated understanding of norms’ and also in the wider context of his
deﬁnition of law itself as an ‘institutional normative order’.43 It is implied
in Lon Fuller’s ‘interaction theory of law’ which ascribes an active role to
individuals within the ‘legal system’ through an analysis of their ‘inter-
actional expectancies’ when engaging with ‘enacted law’ (i.e. law that is
accompanied by an explicit ticket to institutionalized enforcement).44 In
terms of the international legal sphere, the ‘Transnational Legal Process
model’ relies on norms having a jurisdictional aspect, enabling it to move
beyond a formalist concept of rules, in order to stress the role of ‘intern-
alized obedience’ in developing ‘sets of normative practices’.45 Finally, the
‘Entangled Legalities’ project’s account of ‘norm entanglement’ – I would
suggest – also relies on the idea of ‘strong’ legal norms from different
origins carrying different jurisdictional ‘tickets’. It is precisely this juris-
dictional aspect which prevents individual norms from becoming inte-
grated – rather than entangled – through the (repeated, dynamic) ‘social
interplay of actors’:
Norms from different origins become relevant in the same situation, and
they often come with divergent prescriptions or at least orientations.
Their relations are not predeﬁned but remain to be determined through
the social interplay of actors. A common state of affairs in the law – and
likely a more common one than legal ‘systems’ with aspirations of hier-
archy, order and coherence, as depicted in the standard image of law in
the context of the modern, Western nation state.

Nonetheless, the claim that norm entanglement is ‘a common state of

affairs in the law’ downplays the fact that the ‘normativisation’ of law is
itself the product of a Keynesian-Westphalian, state-sovereigntist,

43
N. MacCormick, Institutions of Law: Essay in Legal Theory (Oxford University Press,
2007), p. 287.
44
S. Taekema, ‘The Many Uses of Law: Interactional Law as a Bridge between
Instrumentalism and Law’s Values’, in N. Roughan and A. Halpin (eds), In Pursuit of
Pluralist Jurisprudence (Cambridge University Press, 2017), pp. 116–35, at p. 121.
45
Roth-Isigkeit, The Plurality Trilemma, p. 181.

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    
‘political’ framework.46 Classical Roman jurists did not understand law
(or legal order) as a system of binding, imperative norms. As the Roman
legal historian José Luis Alonso Rodriguez states: ‘Legal positivism not
only means identifying law with legislation tout court [. . .] It means also
the thorough normativisation (“Durchnormierung”) of the law, the con-
struction of the entire legal system as a system of imperative, binding
norms. Nothing can be more remote from the Roman legal experience in
the late Republic and early Empire.’47
We saw in Section 13.1 that relations between the different layers of
Roman law were dynamic and heterarchical: they depended on the skill
of Roman jurists to reason out potential overlaps, entanglements and
clashes on a case-by-case basis. Alonso Rodriguez continues: ‘Legal
Positivism [. . .] stems from the normative monopoly of the sovereign
and the subjection of the jurisdiction to the law, as theorized in modern
political thinking from Hobbes onwards. Such normative monopoly and
jurisdictional subjection are alien to the Roman political theory and
practice of the late Republic and early Empire.’48 In other words,
Roman legal norms, rules and principles did not carry with them an
automatic jurisprudential aspect: ‘a ticket to some person, agency, or
institution’. Roman jurisdiction was not subjected to the law, but was
accorded to specific individuals and groups. These individuals and
groups ranged from the formal iurisdictio cum imperio of Roman magis-
trates and provincial governors, to the legal authority granted to arbitra-
tors by contractual Roman arbitration agreements, to the auctoritas
exercised by jurists on account of their technical expertise, to the author-
ity of a Christian bishop, a freelancing ‘holy man’, an Arab tribal leader,
or any other local ‘big man’, recognized by two parties jointly seeking a
(negotiated, mediated or adjudicated) resolution to a dispute.
Legal norms, then, did not define a Roman legal system any more than
they defined a Late Antique Talmudic or early Christian legal order. My
argument in Section 13.3 is not that legal norms, rules and principles
were irrelevant to entangled legalities in Late Antiquity. Rather, I am
suggesting that if we place the emphasis on Roman legal norms, we risk

46
Chapter 1, Section 1.1. On the Keynesian-Westphalian frame as an ‘at root [. . .] political
settlement’ see Walker, ‘Beyond Boundary Disputes and Basic Grids’, 393.
47
J. L. Alonso Rodriguez, ‘Customary Law and Legal Pluralism in the Roman Empire: The
Status of Peregrine Law in Egypt’ (2013) 43 The Journal of Juristic Papyrology 351–404, at
391.
48
Ibid., 391.

13.3 Entangled Legalities: Beyond the (Byzantine) State

Where actors understand law as a web rather than a hierarchical system,
we can expect them to turn away from the ambition of principled
solutions – valid throughout the system – and shift towards forms of
practical, localized and perhaps provisional accommodation.50

There is a history of Late Antique entangled legalities and juris(dic-

tional)-generative practices yet to be written in which what went on in
late Roman provinces is not simply labelled ‘provincial law’ or ‘provincial
practice’ and seen to exist in a hierarchical relationship with laws and
practices laid down by the imperial centre, but is instead conceptualized
as a kind of heterarchical ordering in its own right. Most legal historians
working today on the early Roman Empire (before 212 ) would accept
that its legal order was pluralistic: that there were multiple normative
orders in operation on the ground, some of which were permitted, even
encouraged, by the Roman state and some of which operated beyond it.51
Whether this kind of legal pluralism persisted much beyond 212  – the
date of the Emperor Caracalla’s grant of Roman citizenship to almost all
(free) inhabitants of the Roman Empire – is more ﬁercely contested.52
For our purposes, however, the interesting question is not whether legal

49
P. Petra IV.39 – see M. Kaimio (ed. and trans.), ‘Settlement of a Dispute by Arbitration’,
in A. Arjava, M. Buchholz, T. Gagos and M. Kaimio (eds), The Petra Papyri IV (American
Centre of Oriental Research, 2011), pp. 41–120.
50
See Chapter 1, Section 1.6.2.
51
K. Tuori, ‘Legal Pluralism and the Roman Empire’, in J. W. Cairns and P. J. du Plessis
(eds), Beyond Dogmatics: Law and Society in the Roman World (Edinburgh University
Press, 2007), pp. 39–52; and C. Ando, ‘Legal Pluralism in Practice’, in P. J. du Plessis, C.
Ando and K. Tuori (eds), The Oxford Handbook of Roman Law and Society (Oxford
University Press, 2016), pp. 283–93.
52
C. Humfress, ‘Laws’ Empire: Roman Universalism and Legal Practice’, in P. J. du Plessis
(ed.), New Frontiers: Law and Society in the Roman World (Edinburgh University Press,
2013), pp. 73–101; and G. Kantor, ‘Local Law in Asia Minor after the Constitutio

Antoniniana’, in C. Ando (ed.), Citizenship and Empire in Europe 200–1900 (Franz

Steiner Verlag, 2016), pp. 45–62.
53
On legal pluralism in the Late Roman East, see Y. Monnickendam, ‘Late Antique
Christian Law in the Eastern Roman Empire: Toward a New Paradigm’ (2018) 2
Studies in Late Antiquity 40–83; on later, post-Islamic conquest legal entanglements,
see U. Simonsohn, A Common Justice: The Legal Allegiances of Christians and Jews under
Early Islam (University of Pennsylvania, 2011); and M. Tillier (ed.), ‘Le Pluralisme
judiciaire dans l’Islam prémoderne’ (2014) special issue of the Bulletin d’Études
Orientales 63.
54
M. Wojtczak, ‘Legal Aspects of Dispute Resolution in Late Antiquity: The Case of P.
Mich. XIII 659’ (2016) 46 The Journal of Juristic Papyrology 275–308, at 307, discusses
two Late Antique papyri which explicitly state why disputes were settled ‘privately’: the
distress connected with the court proceedings, the danger of losing a case in public
proceedings and the costs of the trial, in particular the judges’ fees.
55
Phrase adapted from P. D. Halliday, ‘Laws’ Histories’, in L. Benton and R. J. Ross (eds),
Legal Pluralism and Empires 1500–1850 (New York University Press, 2013), pp. 261–77,
at p. 273.
56
J. L. Alonso Rodriguez, ‘Juristic Papyrology and Roman Law’, in P. J. du Plessis, C. Ando
and K. Tuori (eds), The Oxford Handbook of Roman Law and Society (Oxford University
Press, 2016), pp. 56–66.

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  
the Roman border province Palaestina Tertia.57 The papyri were found
in December 1993, as part of ongoing excavations of the Byzantine
Church of the Virgin Mary in Petra led by the American Center of
Oriental Research. Two teams of papyrologists – an American team from
Michigan University and a Finnish team from Helsinki – worked with
around 140 carbonized rolls, reconstructing the private papers of a
certain Theodoros, son of Obodianos (born 514  and died 591 ), a
property owner, deacon and later archdeacon of the Christian Church of
the Virgin Mary in Petra (the location where the papyrus rolls were
found).58 Taken as a whole, the Petra archive provides evidence for the
persistence of Roman forms and structures in the city of Petra and its
surrounding localities: there was a continued Roman military presence
and the centralized land-tax system of the Byzantine Empire was still
being implemented up to at least the period of the Arab conquests
(c.634–8 ).59 Yet when read together with Late Antique papyri from
Egypt, in addition to other papyri from the Near East, the Petra archive
does not reveal an Eastern Provincial law: ‘a hybrid, indigenous law of the
Near East’.60 Instead, we see a series of concrete situations in which
individuals and groups around and beyond the Late Antique eastern
Mediterranean – Syria, Palestine, the Arabian Peninsula and Egypt –
made use of numerous, entangled, legal practices, forms of argument and
juris(dictional)-generative situations in order to get things done.
P. Petra IV.39 is a complex and incomplete text, reconstructed from
around 3,000 fragments of papyri by its editor Maarit Kaimio and others.
The document is a report of proceedings before arbitrators (dikastai),
probably drawn up on 8 August 574  by an ofﬁcial notary from the
Kastron Zadakathon (Sadaqa), a garrisoned, fortiﬁed settlement 20 km
south of Petra on the margins of the Eastern Roman Empire. The
reconstituted papyrus’ extant length is a remarkable c.6.2–6.5 metres,

57
J. Frösen, A. Arjava and M. Lehtinen (eds), The Petra Papyri I (American Centre of
Oriental Research, 2002); L. Koenen, J. Kaimio, M. Kaimio and R. W. Daniel (eds), The
Petra Papyri II (American Centre of Oriental Research, 2013); A. Arjava, M. Buchholz
and T. Gagos (eds), The Petra Papyri III (American Centre of Oriental Research, 2007);
Arjava et al., Petra Papyri IV; and A. Arjava, J. Frösén and J. Kaimio (eds), The Petra
Papyri V (American Centre of Oriental Research, 2018).
58
L. Koenen, ‘The Decipherment and Edition of the Petra Papyri: Preliminary
Observations’, in L. H. Schiffman (ed.), Semitic Papyrology in Context: A Climate of
Creativity (Brill, 2003), pp. 201–26, at p. 202.
59
See ibid., p. 212, on the centralised land-tax system in operation at Petra.
60
P. Crone, Roman, Provincial, and Islamic Law (Cambridge University Press, 1987), p. 99.

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    
with 523 lines of text surviving. Nine different hands can be distinguished
in the document, with one clear cursive hand indicating a trained
scribe.61 The document itself is written in Greek, but its contents reveal
a multilingual environment. At certain points the papyrus refers to two
languages being used simultaneously: Greek and ‘Syriac’ (probably an
Aramaic dialect).62 Both of the parties involved in the 574  dispute –
Theodoros, son of Obodianos, and Stephanos, son of Leontius – are
clergymen; as is Heiros, son of Thomallos, who drafted the arbitration
agreement’s stipulation of penalty, and one of the arbitrators, Theodoros,
son of Alpheios who is identified in the document as an archdeacon. The
other arbitrator, Flavius Thomas, son of Boethos, was a senior officer in
the local military unit garrisoned at Sadaqa.63 As discussed in more detail
later in this section, the record of the 574  arbitration settlement refers
to two previously negotiated settlements: one probably from the 530s,
decided by an Arab tribal leader and a further settlement from sometime
before 574  that had been mediated by a Christian cleric from a
neighbouring rural area. In addition to arbitration and mediation pro-
ceedings, P. Petra IV.39 also refers to other forms of justice-seeking,
which include trips to the ‘sacred shrine of the holy and glorious martyr
Kerykos’ (in Sadaqa) in order to swear oaths of innocence on the
Christian Holy Scriptures.64
The report of proceedings given in P. Petra IV.39 touches upon
numerous points of dispute, all related to the fact that Theodoros son
of Obodianos and Stephanos son of Leontius owned neighbouring prop-
erties in Sadaqa, as had their fathers before them. Theodoros and his
father, however, seem to have been absentee property owners; at line
103 in the text Theodoros responds indignantly to an accusation that he
does not ‘care for local matters’. Stephanos, on the other hand, seems to
have taken advantage of Theodoros’ absence from Sadaqa in order to
build new physical structures and make alterations to the flow of the

61
Arjava et al., Petra Papyri IV, p. 45.
62
Arjava et al., Petra Papyri IV, p. 72, lines 475–85, mentions documents being presented in
both Greek and Syriac letters.
63
Ibid., p. 45. Further discussion in Z. T. Fiema, ‘The Byzantine Military in the Petra Papyri:
A Summary’, in A. Lewin, P. Pellegrini, Z. T. Fiema and S. Janniard (eds), The Late
Roman Army in the Near East from Diocletian to the Arab Conquest (Archaeopress,
2007), pp. 313–19.
64
Arjava et al., Petra Papyri IV, pp. 72–3, lines 475–85 and 485–95.

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  
water supply without Theodoros’ approval.65 This led to disputes over
Stephanos’ and Theodoros’ rights to the water that drained from a roof-
spout, which had originally been constructed by Theodoros and was the
subject of an earlier dispute mediated by the ‘country bishop’ Sergios.66
Who owned which parts of the adjacent properties was also at issue,
including rights of access across a central courtyard and rights of owner-
ship relating to a refuse pit and an outbuilding.67 Theodoros claimed that
the outbuilding was his by right of inheritance, producing a written deed
of sale made for his father seventy years ago.68 He also seems to claim
that he had been sold the outbuilding by two other individuals
(Kassisaios and Gregoria), but could not produce any supporting
written documents. Stephanos, meanwhile, counter-claimed that his
father had bought the outbuilding and surrounding courtyard ﬁfty-three
years ago, apparently from Theodoros’ father. Stephanos produced
two deeds of sale, but Theodoros responded that the outbuilding and
surrounding land had not been included in the transaction. Added to
this complex situation, P. Petra IV.39 also includes accusations of
encroachment and theft of building materials – timber, blocks of stone
and doors – by local soldiers, possibly under the command of one of
the 574  arbitrators: Flavius Thomas.69 In addition, the document
records a further, rather murky, claim for two solidi (gold coins) related
to an earlier dispute between the families over a vineyard.70 Perhaps
unsurprisingly, the hostilities between the two families spilled out into
the local community, with Stephanos accusing Theodoros of deliberately
stirring things up with the neighbours – who, we are told, made many
‘unwritten accusations’.71 P. Petra IV.39 thus records a longstanding
series of disputes between two local families, spanning several decades.
There is obviously a complex backstory to the 574  arbitration. As a
546/7  papyrus from the Egyptian city of Antinoe put it, ‘many words

65
Ibid., p. 51, and M. Wojczak, ‘Settlements of Claims as a Way of Dispute Resolution in
the Light of P. Petra IV 39: A Legal Commentary’ (2012) 42 The Journal of Juristic
Papyrology 353–80 at 359.
66
Arjava et al., Petra Papyri IV, p. 54.
67
Ibid., p. 53. The refuse pit, in particular, seems to have been the object of a
longstanding feud.
68
Ibid., pp. 52 and 69, lines 69–79.
69
Arjava et al., Petra Papyri IV, p. 55.
70
Ibid., p. 55.
71
Ibid., p. 71, lines 305–19.

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    
have been said and many moves have been made’ before the parties
brought their case before the arbitrators.72
Arbitration (and mediation), in contrast to judicial settlement by a
standing tribunal, is designed by the parties to the dispute. The basic
modern ‘principle of party autonomy’ – that the parties agree which
issue(s) to submit to arbitration, that is, the issues to be decided upon; the
choice of arbitrator(s); and the ‘applicable law’, that is, the law applicable
to the dispute, including soft law and ‘non-binding’ law – can also be
seen in operation in Roman arbitration proceedings. Similarly, the
modern distinction between ‘ad hoc arbitration’ and ‘institutional arbi-
tration’ (where the parties rely on the procedural rules of an arbitral
institution determined by the relevant institution) can also be seen in
Late Antique contexts. Arbitrations and other negotiation settlements
before Late Antique Christian bishops and clerics, for example,
developed institutionally speciﬁc norms and practices. Records of pro-
ceedings held before arbitrators and formal arbitration agreements sur-
vive on papyri from both the Late Antique Near East and the West. These
include an Egyptian record of a dispute settled by arbitration in 647 
and recorded in Coptic, which the editor of P. Petra IV.39, Maarit
Kaimio, notes as the closest parallel to our 574  text. P. Petra IV.39,
however, is unique in that it refers to the submission of written pleas and
documents at an early stage of the proceedings, but records the parties’
oral pleas before the arbitrators in direct speech: ‘the speech ﬂows in
personal style, often becoming agitated and even insulting’.73 In other
words, aside from the opening and concluding formalities of the arbitra-
tion procedure and the stipulation of penalty, the language used by the
parties is not formulaic. What we see recorded in P. Petra IV.39 is a
localized culture of argumentation.
Chronologically, the earliest negotiated settlement mentioned in
P. Petra IV.39 relates to the vineyard and the claim for two solidi. This
dispute, the papyrus states, occurred sometime in the past – Kaimio
suggests the late 520s or 530s – between Theodoros, son of Obodianos
and Leontius, the father of Stephanos. It was resolved before a mediator
referred to in the document as ‘Abou Cherebos’. This is probably Abu
Karib ibn Jabala, part of the Jafnid dynasty that acted as power brokers
between Rome and the Bedouin.74 Abu Karib ibn Jabala was granted the

72
Wojtczak, ‘Legal Aspects of Dispute Resolution’, 36.
73
Arjava et al., Petra Papyri IV, p. 48.
74
Ibid., pp. 55 and 90 (commenting on lines 163–87 of the text).

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  
Phylarcate of Palestine (including southern Jordan and Petra) by the
Roman Emperor Justinian sometime in the 530s.75 Thus we have a
relatively minor dispute over a vineyard, involving two landowners of
middling means, mediated by an Arab tribal leader with a network of
contacts that stretched all the way from (present-day) Jordan to the
Emperor in Constantinople.76 In choosing Abu Karib as the mediator
of their dispute, Theodoros and Leontius deliberately exploited local and
imperial networks. The second negotiated settlement mentioned in P.
Petra IV.39 took place sometime before 574 and was concluded between
Theodoros, son of Obodianos, and the individual whom he claimed to
have bought the disputed outbuilding from: a certain Kassisaios. The
memorandum of this agreement, included in the documents submitted to
the 574  arbitrators, states that it was made through ‘Sergios, priest and
“country-bishop” (chorepiscopos)’.77 Here we have the parties appealing
to a Christian cleric from a neighbouring rural area, perhaps either
exploiting a personal network or, conversely, attempting to remove the
dispute from its immediate, urban, context. We also see the use of a
Christian cleric as arbitrator in the 574  settlement itself, alongside a
high-ranking military ofﬁcer who may have been directly implicated in
the circumstances of the case. P. Petra IV.39 thus presents us with
multiple justice-seeking attempts, before multiple individuals of different
types. The crucial point to note here is that each of the different venues
for dispute resolution were put into relation with each other by the
parties to the disputes themselves. The interlinkage here is literally created
through the parties’ own juris(dictional)-generative practices.
We turn, ﬁnally, to the legal norms and principles that the parties rely
upon in their justice-seeking activities. In common with other papyri in
the Petra and Nessana archives, the protocol of P. Petra IV.39 seems
to make use of procedural terms and concepts derived from Roman

75
Procopius, History of the Wars I.xix.10–13, states that Justinian received a gift of ‘the
palmtrees’ from Abu Karim, ‘who now guarded the land from plunder’. In a brilliant
example of Late Antique realpolitik, however, Procopius goes on to explain that, ‘In
formal terms the emperor holds the Palmtrees, but for him [Justinian] to possess himself
of any of the country is in practice utterly impossible [. . .] The Palmtrees themselves are
worth nothing and Abocharabos [Abu Karib ibn Jabala] only gave the form of a gift, and
the emperor accepted it with full knowledge of the fact.’
76
E. K. Fowden, The Barbarian Plain: Saint Sergius between Rome and Iran (University of
California Press, 1999), pp. 167–70, notes that the Jafnid family constructed an ‘audience
hall’ south of the town of Resafa which functioned as a Church and a place for dispute
settlement for people coming on pilgrimage to the shrine of St Sergius.
77
Arjava et al., Petra Papyri IV, pp. 50, 54 and 69.

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    
law: ‘Instances of such terms in the text demonstrate beyond doubt that
the parties and arbitrators had some, considerable, specific legal know-
ledge.’78 Marzena Wojtczak’s careful and cautious reconstruction of the
substantive Roman rules and concepts that can be pieced together from
P. Petra IV.39 also suggests the use of legal norms and concepts derived
from Roman law, while at the same time highlighting the specificity of
localized practices.79 According to Wojtczak, P. Petra IV.39 ‘gives an
impression that we are actually dealing with a sequence of debts and
securities between the two families’, involving ‘a sequence of fiduciary or
fictitious sales’ with multiple ownership changes over a relatively short
period of time (what a modern lawyer might refer to as a situation of
relational contracting).80 As Wojtczak’s article concludes: ‘It should be
considered that ordinary people, not acquainted with dogmatic legal
patterns, sought solutions which would appear to protect their rights in
[the] best possible manner. Transfer of ownership treated as a security
for credit seems to be in accord with this idea.’81
The use of a technical Roman legal register in P. Petra IV.39 thus
needs to be understood within the context of local relations and localized
practices. Evidence for these localized practices can be difficult to pin-
point in Late Antique legal and documentary source material, nonethe-
less, as Wojtczak’s example of the creative, ‘localized’ use of multiple
fiduciary or fictitious sales suggests, Roman legal concepts and practices
were put to work differently, by different networks of individuals, fam-
ilies and groups, operating within different localities around the empire.
Moreover, the fact that this creative use of Roman legal norms in P. Petra
IV.39 is apparent across a succession of settlements, decided in turn by
Christian clerics, a Roman military official and an Arab tribal leader,
underscores the fact that the Roman legal norms themselves were con-
sidered ‘portable’. Once again, there may be modern parallels to be teased
out here in terms of exploring the relationship between entangled legal-
ities on the ground and ‘strategic legal argumentation’. For example,
Adam Bower stresses the role played by ‘strategic legal argumentation’
in contemporary multilateral settings: ‘First, in multilateral settings
actors will tend to invoke justifications based in legal principles, norms,
and rules – potentially in conjunction with coercive efforts – in pursuing

78
Wojtczak, ‘Settlements of Claims as a Way of Dispute Resolution’, 357–8.
79
Ibid., 360–80.
80
Ibid., 377–9.
81
Ibid., 379–80.

13.4 Conclusion
With our analysis of the presovereigntist, prenationalist and prepositivist
world of P. Petra IV.39 we have moved far beyond a modern, state-
sovereigntist, court-centric framework. P. Petra IV.39, in contrast, under-
scores the central role of legal actors in creating localized and entangled
legalities on the ground; entangled legalities within which arguments
from – portable – Roman legal norms and principles play a signiﬁcant,
but not determinate, role. One of the central questions posed by the
‘Entangled Legalities’ project is how to reimagine the global legal order

82
A. Bower, ‘Arguing with Law: Strategic Legal Argumentation, US Diplomacy, and
Debates over the International Criminal Court’ (2015) 41 Review of international
Studies 337–60, at 339.

83
See Chapter 1, Section 1.6.2.

Entanglement of State and Indigenous Legal

Orders in Canada
                          

The concept of entangled legality faces an uphill battle for respectability,

as powerful human forces weigh against it from the first mention of its
terms. We are all familiar with the reductionist impulse in legal theory,
which seeks to reduce apparent novelty to ready explanation within
extant concepts and categories. Assertions of legal entanglement, on this
view, are mistaken ascriptions of something else – perhaps conflicts
between sovereign states, or unsettled internal constitutional matters as
federal and state authorities contest the boundaries between them. And
even if the ontological credibility of entangled legality might be estab-
lished, a familiar meliorist impulse may emerge, presuming that what is
entangled is better off disentangled, leaving entangled legality a concept
less seen in practice than spoken of when practice goes awry.
Entanglement, after all, is rarely a good thing. We generally seek to keep
marine life from becoming entangled in fishing gear, we often try to help
friends out of romantic entanglements and we certainly do not want our
political representatives to be entangled in scandal. Here we push back
against these impulses, arguing first that entangled legality is not redu-
cible to some familiar other concept or category, and second, that
entangled legality can be both durable and a force for political good,
even while its durable presence raises challenges to state-centred
approaches to legal theory. Contrary to intuition and impulse, then, we
argue that entangled legality is here to stay in both legal practice and in
legal theory, and that both may be better off embracing entanglement.
The context of our argument is the rapidly evolving relations between
state and Indigenous1 legal orders in Canada. As we argue at length, the
emergence of entanglement between these legal orders offers a clear
instance of entanglement unlikely to be better explained by reduction

1
A note on terminology: for the purposes of this chapter, we use as interchangeable
‘Indigenous peoples’, ‘Aboriginal peoples’ and ‘First Nations’.



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 &      
to existing relations and explanations, and moreover, this entanglement
presents what may over time become the replacement of Canada’s
foundational unitary constitution by an equally durable pluriform
foundation.
A brief foreshadowing of the context of our argument together with an
explanation of its structure will serve as a helpful beginning. Canada was
created in 1867 with the Constitution Act, 1867 (also known as the
British North America Act, 1867, an act of the United Kingdom
Parliament). Sections 91 and 92 of the Constitution Act, 1867 divide
the powers and authority of the Canadian state, without remainder,
between the federal and provincial governments. No constitutional
power or authority is allocated to Indigenous peoples. Indigenous rights
and claims have nonetheless been recognized in diverse ways since 1867.
The Indian Act, 1876, a constitutional amendment in 1982 and several
Supreme Court of Canada decisions have acknowledged the existence of
Indigenous legal orders, albeit always through the particular lens of the
Canadian legal institution undertaking an act of recognition – viewing
claims of Indigenous law from the perspective and authority of the
Canadian legal system and subject to the limitations set by Crown
sovereignty and associated doctrines. Until very recently, this interaction
was readily explained by what we have called elsewhere a state-centred
approach to legal theory, taking the legal system of the sovereign state as
the central instance and object of legal theory as a consequence of the
sovereign state’s centrality to legal order in the post-Westphalian era.2
The bulk of our argument presents evidence for the claim that practically
and theoretically signiﬁcant changes are occurring in the way Canadian
legal institutions are engaging with Indigenous peoples’ legal claims rooted
in the assertion of the existence of Indigenous legal orders existing without
recourse to Canadian recognition as a condition of their existence. We
demonstrate a gradual yet unmistakably foundational change as institutions
of the Canadian legal system embrace a different approach to recognizing
Indigenous peoples’ rights, claims and legal orders, through various letters
of understanding, framework agreements and protocols. This new approach
suggests a reconception of the basic terms of what this volume refers to
as entangled legalities, from a supremacy-claiming systematicity view to one

2
See K. Culver and M. Giudice, Legality’s Borders: An Essay in General Jurisprudence
(Oxford University Press, 2010); and K. Culver and M. Giudice, The Unsteady State:
General Jurisprudence for Dynamic Social Phenomena (Cambridge University Press, 2017).

14.1 Supremacy Claims and Legal System

Generations of students of law and legal theory are familiar with the
simple yet powerful characterization of the nature of law developed by
H. L. A. Hart and those following in the analytical legal theory tradition
to which he gave fresh life. According to Hart’s famous formulation in
The Concept of Law, for a legal system to exist there must be a union of
primary rules of obligation, which direct norm-subjects in what they
must and must not do, and secondary rules, primarily addressed to and
operated by legal officials, authorizing the creation, application and
enforcement of primary rules as well as setting in general terms how
the primary rules are to be identified or recognized in the first place.3
Many institutions have such a union of primary and secondary rules,
such as hospitals, schools and sports associations, so what makes legal
systems – especially of the sovereign state kind – distinctive is that, unlike
other institutions, a legal system makes a general claim to supremacy
over all other types of normative systems. In the ‘Postscript’, first
included in the second edition of The Concept of Law, Hart writes: ‘the

3
H. L. A. Hart, The Concept of Law, 3rd ed. (Oxford University Press, 2012).

Raz offers this observation in the context of discussion about the neces-
sary features ‘of all the intuitively clear instances of municipal legal
systems’.6 Raz’s claim is carefully delimited, announcing a focus on
obvious central instances of state systems of law, leaving unexamined
what might be regarded as borderline cases, and forms of legal order
beyond the state, as may be found in international law. Yet even Raz’s
delimited claim is subject to doubt, as critics argue that it may not be
necessary to the nature of law that it claims supremacy, whether in state
systems or other legal orders.7 Here we leave this debate to one side,
while observing that our argument regarding entangled legality in
Canada supports the view that the relation between law and claims to
supremacy is a contingent relation. So while our primary goals remain
the demonstration of the existence of entangled legality and argument
that entangled legality may be a good thing, our argument is of additional
interest to the extent that it has implications for the project of general
jurisprudence as an attempt to develop an explanation of law capable of
scoping over all instances, without limitation to the post-Westphalian
state which has dominated so much discussion at least since the initial
1961 publication of The Concept of Law.

4
Ibid., p. 249 (emphasis added).
5
J. Raz, The Authority of Law, 2nd ed. (Oxford University Press, 2009), p. 118.
6
Ibid., p. 104.
7
See, e.g., A. Marmor, Positive Law and Objective Values (Oxford University Press, 2001),
p. 40; and B. Tamanaha, A General Jurisprudence of Law and Society (Oxford University
Press, 2001), p. 140.

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     
The utility and limitations of the supremacy claim are usefully
explored in application of the claim to explain the Canadian context in
both historic perspective, and as new evidence shows Canadian adoption
of something other than a supremacy claim in the self-conception of the
Canadian legal system and the Canadian polity. Claims of supremacy
have certainly been prominent, but now seem to be withdrawn in certain
instances with regards to some Indigenous peoples, creating an explana-
tory demand unmet by the supremacy claim. Let us set out an outline of
the historical presence of the supremacy claim, in preparation for dem-
onstration of its recent retreat.
The supremacy claim has (at least) three dimensions, divided
as follows.
Supremacy of norms. Like other sovereign states, at the foundation of
the Canadian legal system is a unitary constitution, first the Constitution
Act, 1867, now the Constitution Act, 1982. And like other state consti-
tutions, the Constitution Act, 1982 contains a common supremacy
clause. Section 52(1) reads: ‘The Constitution of Canada is the supreme
law of Canada, and any law that is inconsistent with the provisions of the
Constitution is, to the extent of the inconsistency, of no force or effect.’8
There is of course more than just constitutional law in Canada: there is
federal law and regulation, provincial law and regulation, and judicial
precedents. Yet these all occupy a particular place in the hierarchy of
norms in Canada, with constitutional law serving as the top-down source
of validity or authorization for all other types of law. The supremacy
claim of the Canadian constitution, and its associated hierarchy of
sources of law, is readily observable. John Borrows, for example, recounts
the first time he encountered the idea of hierarchy as a law student in
Canada:
I remember my property law professor telling me that all laws had to be
consistent with the Constitution Acts to be valid. Then we were told that
below the Constitution were parliamentary or legislative enactments,
which were greater in authority than common law pronouncements made
by judges. Underneath these sources came law’s subsidiary origins, such
as parliamentary privilege, the royal prerogative, particularly persuasive
published commentaries, followed finally by customs and conventions.
This pattern for organizing the sources of Canadian law is evident in
many of today’s legal textbooks. I could not help but notice that custom

8
The Constitution Act, 1982, section 52, https://laws-lois.justice.gc.ca/eng/const/page-16
.html#docCont.

One might suppose that including Indigenous rights within the

Constitution of Canada would raise the level of protection of
Indigenous law and so place it higher up in the hierarchy of Canada’s
legal system. Such inclusion happened in 1982 with the creation of the
Constitution Act, 1982. Section 35(1) reads: ‘The existing aboriginal and
treaty rights of the aboriginal peoples of Canada are hereby recognized
and affirmed.’10 Yet it must be remembered that such recognition and
affirmation are granted by the Constitution of Canada, and subject to
amendment according to the amendment formula laid out in the
Constitution. While there is a constitutional obligation to consult with
Indigenous peoples in Canada regarding any amendment to sections
25 or 35 of the Constitution Act, 1982 or other parts of the
Constitution which refer to Indigenous rights, any subsequent amend-
ment only requires approval by a combination of federal and provincial
governments. The approval of Indigenous governments is not required.11
This constitutional recognition of ‘existing aboriginal and treaty rights’ is
evidently more substantial than mere recognition of the existence of
residual customary Indigenous law, but that recognition remains an
elaboration of the detail of the Canadian legal system’s supremacy claim,
subsuming Indigenous rights, interests and laws within the Canadian
constitutional order.
Supremacy of institutions. Canadian supremacy claims relative to
Indigenous peoples’ law and legal order are also visible in the status
and role of central institutions. Federal and provincial governments are
granted exhaustive lawmaking authority under the Constitution, and
federal and provincial courts are presumed to have exhaustive authority
to resolve disputes. Indeed, as the highest court in Canada, the Supreme
Court of Canada, through its judgements and opinions offers final,
authoritative decisions on matters regarding Indigenous rights in
Canada. As such, the Supreme Court of Canada naturally derives its
authority and validity for its decisions through its place in the hierarchy
of norms and institutions of the supreme, comprehensive, independent
legal system in Canada. Viewing Indigenous rights through the lens of

9
J. Borrows, Canada’s Indigenous Constitution (University of Toronto Press, 2010), p. 13.
10
See The Constitution Act, 1982.
11
Ibid.

Aaron Mills offers a similar observation in the context of discussion of

the nature of treaty relationships in Canada:
The structural relation of settler supremacy that characterizes Canada–
Indigenous relationships means that even if somehow the Supreme Court
of Canada could get the doctrine right, inequality between Indigenous and
settler peoples would persist. Yet the overarching theme of this book is
treaty remedies. It will be clear by now that I think that’s the wrong frame
for thinking about changing treaty relationships today because it assumes
too much, namely that the courts have a leading role to play in reorgan-
izing treaty relationships. The courts are an institution internal to
Canada’s constitutional order and, as creations by and under its authority,
are by deﬁnition incapable of taking up the very issue at stake in treaty:
the coordination of distinct constitutional orders.13

Similarly, Mark Walters identiﬁes several instances where Indigenous

peoples have denied – to little practical effect – the authority and
sovereignty of the Canadian state and its institutions. That denial
amounts to what Walters aptly calls an ‘existential threat’ to Canadian
sovereignty, swiftly rejected by Canadian courts. Here is an example:
When it was argued that an interlocutory injunction against protesters
from the Lilwat people was invalid ‘because the Lilwat People constitute a
sovereign nation to which the laws of Canada do not apply and over
which the Courts have no jurisdiction,’ the response from provincial

12
P. Monture-Angus, Journeying Forward: Dreaming First Nations’ Independence
(Fernwood Publishing, 1999), p. 65 (internal notes omitted).
13
A. Mills, ‘What Is a Treaty? On Contract and Mutual Aid’, in J. Borrows and M. Coyle
(eds), The Right Relationship: Reimagining the Implementation of Historical Treaties
(University of Toronto Press, 2017), pp. 223–4 (internal notes omitted, original
emphasis).

While the Supreme Court of Canada and other Canadian courts have on
occasion questioned their jurisdiction to hear certain disputes, and
sometimes refuse to offer judgements or opinions on issues they find
not (or not yet) justiciable, there is entirely unsurprisingly little historical
indication that courts conceived of themselves as institutionally able to
question their general legitimacy as institutions of the sovereign
Canadian state.15 Yet as sometimes happens in social affairs, a sea change
in attitudes and eventually practice has occurred in recent years, for
various reasons beyond easy traceability, but with significant effects.16
For example, in a 2014 decision then Chief Justice McLachlin of the
Supreme Court wrote this about the test for establishing Aboriginal title
to land:
what is required is a culturally sensitive approach to sufficiency of occu-
pation based on the dual perspectives of the Aboriginal group in ques-
tion – its laws, practices, size, technological ability and the character of the
land claimed – and the common law notion of possession as a basis for
title. It is not possible to list every indicia of occupation that might apply
in a particular case. The common law test for possession – which requires
an intention to occupy or hold land for the purposes of the occupant –
must be considered alongside the perspective of the Aboriginal group
which, depending on its size and manner of living, might conceive of
possession of land in a somewhat different manner than did the common
law.17

14
M. D. Walters, ‘“Looking for a Knot in the Bulrush”: Reﬂections on Law, Sovereignty, and
Aboriginal Rights’, in P. Macklem and D. Sanderson (eds), From Recognition to
Reconciliation: Essays on the Constitutional Entrenchment of Aboriginal and Treaty
Rights (University of Toronto Press, 2016), pp. 54–5 (author’s notes omitted).
15
Even more unlikely would be to ﬁnd acknowledgment by the Supreme Court of Canada
(or any other Canadian court) that its authority to decide disputes regarding the status
and nature of Indigenous rights depends on delegation or recognition by First Nations.
16
Among these causes it is worth identifying the work of the Truth and Reconciliation
Commission emerging from an inquiry into residential schools in Canada. See generally:
www.trc.ca/about-us/our-mandate.html.
17
Tsilhqot’in Nation v. British Columbia [2014] 2 S.C.R. 256.

At the risk of belabouring the point, claims of supremacy of norms,

institutions and the use of force in Canada all support the central
observation in this section, that Indigenous rights, norms and institu-
tions, to the extent to which they have legal status and force in Canada,
have depended on the authorization and permission of the Canadian
legal system. The approach to characterization of law and legal system
developed by Hart, Raz and following analytical legal theorists is readily
capable of explaining the Canadian situation and the respects in which it
resembles and varies from other legal systems. That approach is equally
capable of reminding us that the patterns of recognition just surveyed
may or may not be indicative of a durable legal system combining claims

18
Mitchell v. M.N.R. [2001] 1. S.C.R. 911, para. 153 (original emphasis).

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 &      
to authority in fact generally accepted and practised by the society with
which the legal system exists in an intimate relationship. In a relatively
durable system such as that found in Canada, supremacy claims are
generally accepted, as when provincial and federal governments accept
the supremacy of constitutional law over their legislative acts (e.g. where
courts strike down some legislative provision citing violation of a
Canadian Charter right or provision), or when the police cede authority
to the military over the use of force in times of emergency or martial rule.
In other instances, claims to supremacy can be rejected in ways that are
not readily explained as mere rule-breaking, or as attempts at revolution
resulting in the dissolution of the state. Rejection of claims of supremacy
of the Canadian legal system by Indigenous peoples are easily found, in
contexts of entanglement where durable models for social life are sought
beyond the discourse available in a supremacy-presuming state and
peoples subject to its supremacy claim. For example, in This Is Not a
Peace Pipe, Dale Turner begins with the following observations about the
legal status of Aboriginal rights in Canada:
Aboriginal rights, as constitutional rights, are still developing in law;
that said, one important principle is now embedded in Canadian
law and politics: the meaning and content of Aboriginal rights is
expressed in the legal and political discourses of the Canadian state, and
therefore Aboriginal rights exist or have legitimacy only within the
Canadian state [. . .] But many Aboriginal peoples do not understand
their rights in terms that are amenable to the state’s legal and political
discourses. This is because many Aboriginal peoples do not perceive the
political relationship as one of subservience; that is, they do not view their
rights as somehow legitimated by the Canadian state. Rather, many
Aboriginal peoples understand the political relationship as one of ‘nation
to nation’.19

In some instances, First Nations not only claim independence as sover-

eign nations alongside Canada, but assert a kind of reversal of the
hierarchy and stream of supremacy claims. Some First Nations assert
authority to validate the inclusion of settler peoples and institutions into
the family of legal orders present in North America. For example, Turner
notes this particular feature of an Iroquoian treaty known as ‘the
Guswentha’ or ‘Two Row Wampum’, an agreement which symbolizes

19
D. Turner, This Is Not a Peace Pipe: Towards a Critical Indigenous Philosophy (University
of Toronto Press, 2006), pp. 3–4 (original emphasis).

This reversed supremacy claim is of interest as a matter of both the

history of the relations between Indigenous peoples and the Canadian
state, and for reasons internal to the Canadian state and its self-
understanding. Borrows has done perhaps more than anyone else to
show that the creation of the Canadian state and its legal system has in
its roots a nation-to-nation treaty, recognized, for example, by the Royal
Proclamation of 1763.22 As Borrows argues, the Royal Proclamation of
1763 presumes, and was understood by Indigenous peoples at the time as
recognizing, equal standing between Indigenous peoples and settler
peoples, including the British Crown itself. On such a view there was
no domination of one nation or government over another, but acknow-
ledgement that the validity of agreements regarding the use and title of
land, respective self-government and all other aspects of interaction
required mutual recognition. Borrows sets this understanding of the
relationship between Indigenous peoples and settler peoples in Canada
in stark contrast to the view of a unilateral assertion of Crown sover-
eignty, which prevailed around the time of Confederation in 1867 and
continues in many ways until the present day, marking a kind of delib-
erate Canadian forgetfulness made possible by the prevailing imbalance
in political power between the thoroughly established settlers and the

20
On the origins of the Guswentha or Two Row Wampum, see Turner, This Is Not a Peace
Pipe, p. 48, quoting Grand Chief Michael Mitchell of Akwesane.
21
Ibid., pp. 54–5 (original emphasis).
22
See J. Borrows, ‘Constitutional Law from a First Nation Perspective: Self-government and
the Royal Proclamation’ (1994) 28 University of British Columbia Law Review 1–47; J.
Borrows, ‘Canada’s Colonial Constitution’, in J. Borrows and M. Coyle (eds), The Right
Relationship: Reimagining the Implementation of Historical Treaties (University of
Toronto Press, 2017), pp. 17–38; J. Borrows, Recovering Canada: The Resurgence of
Indigenous Law (University of Toronto Press, 2002); and J. Borrows, Freedom and
Indigenous Constitutionalism (University of Toronto Press, 2016).

As Borrows explains, however, the Creator and Crown are not on equal
footing in this respect. The Crown, much like Indigenous peoples, is
subject to the laws of the Creator, who is supreme. Borrows quotes one
particular Elder:
It was the will of the Creator that the White man would come to live with
us, among us, to share our lives together with him, and also both of us
collectively to beneﬁt from bounty of Mother Earth for all time to come
[. . .] Just like the treaty, that’s what it is, one law was given, Indian and
white, we both gave something special, something to keep, something to
reverence, just like the treaty, both Indian and white beneﬁciaries, we were

23
Borrows, Canada’s Indigenous Constitution, p. 24.
24
Ibid., pp. 25–6.

As we saw earlier, there is a long history of assertions of the supremacy of

the Canadian legal system over First Nations, largely matched by First
Nations’ acquiescence or practical inability to contest those claims even
when the claims arguably amounted to Canadian self-misunderstanding
omitting recognition of the force of prior treaty agreements. There is
nonetheless an additional history of competing assertions of independ-
ence on the part of First Nations, although these assertions most often do
not also claim to serve as authority over settler laws. In the passage just
quoted, however, we do have an example where sacred Indigenous law is
the source of validity for other Indigenous laws and treaties, and add-
itionally claims to serve as the source of validity for the presence of settler
peoples and their laws.

14.2 The Contingent Relation between Supremacy

Claims and Law
We now arrive at a crucial question: are assertions of the existence of
legal system, and in particular assertions of supremacy of the kind visible
in the Canadian legal system, necessary or inevitable in understanding
and constructing the relations between state governments and
Indigenous governments in Canada? Historical evidence and recent
agreements suggest the answer is ‘no’. Historically, assertions of legal
systems and claims of supremacy were not always the way that settler
peoples and institutions related to Indigenous peoples in what is now
Canada, and very recently there seem to be instances of a return – or at
least steps towards a return – to older ways of conceiving such relations.
Looking ﬁrst at pre-Confederation times, we can ﬁnd evidence of a
preference, on the part of many Indigenous peoples, for the terms of
the Royal Proclamation of 1763, issued by the British Crown, over the
terms and understanding of the British North America Act of 1867 (also
known as the Constitution Act, 1867) which created modern-day
Canada. Borrows again offers a helpful account. He argues that while
the Royal Proclamation has appeared to Canadian courts as an effective
unilateral assertion of Crown sovereignty, it was understood by First
Nations at the time to be an important nation-to-nation treaty of peace

25
Ibid., p. 26.

For many Indigenous peoples the idea of a nation-to-nation treaty or

partnership is best exempliﬁed by the Guswentha or Two Row Wampum
mentioned in Section 14.1, a form of treaty which originated in agree-
ments between Indigenous peoples (such as the Iroquois or
Haudenosaunee) and European settlers. Turner quotes this well-known
explanation of the Two Row Wampum:
When the Haudenosaunee ﬁrst came into contact with the European
nations, treaties of peace and friendship were made. Each was symbolized

26
Borrows, ‘Constitutional Law from a First Nation Perspective’. Many First Nations
continue to make reference to the Royal Proclamation of 1763 in their claims. For
example, the Kingsclear First Nation cites the Royal Proclamation as law protecting their
rights to land which was violated on several occasions throughout their history in what is
now New Brunswick. See www.kingsclear.ca/about/history/.
27
Borrows, Freedom and Indigenous Constitutionalism, p. 114. See also Borrows, Canada’s
Indigenous Constitution, pp. 26–7. For comparison, in New Zealand, renewed respect for
the Treaty of Waitangi of 1840 began and has continued to grow since 1986, when the
state introduced the ﬁrst of several legislative acts recognizing the Treaty as a source of
law in New Zealand. For an account of some of the similarities and differences in
Indigenous–settler relations between Canada and New Zealand, see J. Ruru,
‘Constitutional Indigenous Jurisprudence in Aotearoa, New Zealand’, in P. Macklem
and D. Sanderson (eds), From Recognition to Reconciliation, pp. 415–48.

Despite these First Nations perspectives, the idea of a nation-to-nation

treaty or partnership did not survive in settler understanding and was
simply given no recognition at the time of Confederation in 1867 and
subsequent practice. As the above account showed, the Canadian state
opted for the extinguishment and then subsumption of Indigenous legal
orders. Recently, however, the idea of a nation-to-nation partnership has
resurfaced. In various framework agreements, letters of understanding
and reconciliation protocols signed by First Nations and provincial and
federal governments, relations are being expressed and understood not in
a hierarchical or delegated fashion, but rather as relations of ‘govern-
ment-to-government’ or ‘true partnership’.29 Many of these agreements

28
Turner, This Is Not a Peace Pipe, p. 48 (internal notes omitted). See also Mitchell
v. M.N.R., paras 127–30. Also valuable on the importance of such an understanding of
state-settler relations is J. Tully, Strange Multiplicity: Constitutionalism in an Age of
Diversity (Cambridge University Press, 1995). Tully does not examine the relations
through the lens of the concept of legal system, but his account of the difference between
ancient constitutionalism, modern constitutionalism and contemporary constitutional-
ism offers a nice parallel.
29
See, for example, the Letter of Understanding between the Tsilhqot’in Nation and the
Government of British Columbia (2014), www.tsilhqotin.ca/Portals/0/PDFs/LOU_
Tsilhqotin_BC.pdf; the Letter of Understanding between the Tsilhqot’in Nation and the
Government of Canada (2017), www.tsilhqotin.ca/Portals/0/PDFs/Press%20Releases/
2017_01_27_Tsilhqotin_Canada_LOU.pdf; Kunst’aa guu – Kunst’aayah Reconciliation
Protocol, signed between the government of British Columbia and the Haida Nation
(2009), www.haidanation.ca/wp-content/uploads/2017/03/Kunstaa-guu_Kunstaayah_
Agreement.pdf; and the Shíshálh Government-to-Government Agreement (2018),
www2.gov.bc.ca/assets/gov/environment/natural-resource-stewardship/consulting-with-
ﬁrst-nations/agreements/shishalh_g2g_2016–06–21_ﬁnal_-_public.pdf.

This statement from the Lands Advisory Board, an institution established

under the Framework Agreement and comprising representatives of
several First Nations, makes plain how First Nations understand the
Framework Agreement and the First Nations Land Management Act.
As First Nations see it, the Framework Agreement, which is not federal
legislation or policy, or an amendment to the Canadian constitution,
represents a foundational agreement and source of law outside the
traditional hierarchy of legal norms in the Canadian legal system, giving
rise to obligations on the part of the Canadian government. So while it
might be observed that the First Nations Land Management Act is a
federal statute, as it is, and so stands in a familiar place in the hierarchy of
legal norms in the Canadian legal system, the First Nations Land
Management Act must also be seen as deriving its ultimate validity and
authority from recognition by both the Canadian government and
First Nations.

30
See a news release here: https://labrc.com/framework-agreement/, and the full text of the
agreement here: https://labrc.com/wp-content/uploads/2016/08/FA-current-to-2013.pdf.
31
See https://labrc.com/framework-agreement/. At the beginning of 2019, 153 First Nations
already had their own land codes or were actively developing them. See: www.aadnc-
aandc.gc.ca/eng/1327090675492/1327090738973.
32
See https://labrc.com/framework-agreement/.

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     
What makes the Framework Agreement, together with the First
Nations Land Management Act and the many First Nations land codes
now in operation, an example of entangled legalities, and why is it
important to understand the social situation in this way? It might be
tempting to suppose that First Nations gaining greater control over
management of their lands, which also includes the authority to create
a range of criminal offences,33 authority which has historically been held
in Canada by the federal government alone, represents a step towards
independence of the sovereign state kind. If this were true, then we would
not have an instance of entangled legalities but perhaps some form of
secession then treaty under international law. However, under arrange-
ments such as the Framework Agreement, fragmentation into several
sovereign states within Canada is not contemplated. Rather, what is
sought are forms of self-government which depend on mutual recogni-
tion and thick intermingling of norms and institutions from diverse
sources of ultimate authority. A recent case provides a good illustration.
The K’omoks First Nation in British Columbia created their own land
code in 2016 in accordance with the Framework Agreement and the First
Nations Land Management Act. Section 31.1 of their land code reads:
‘Any person who resides on, enters or remains on KFN [K’omoks First
Nation] lands other than in accordance with a residence or access right
under this Land Code or under a Law is guilty of an offence.’34 Two non-
K’omoks First Nation renters, Thordarson and Sorbie, had failed to pay
their rent for several months on a property on K’omoks First Nation
lands, and after having been given formal notice to vacate by the
K’omoks First Nation, did not leave the premises. They were then
considered trespassers by the K’omoks First Nation and guilty of an
offence under the Land Code. As the Provincial Court of British
Columbia recounts, the K’omoks First Nation requested assistance from
the Provincial Prosecution Service and Federal Crown, a provincial insti-
tution and federal institution respectively, to help in prosecuting and
enforcing the laws of the K’omoks First Nation Land Code, since the
Land Code, in accordance with the Framework Agreement, makes refer-
ence to the Canadian Criminal Code, a federal statute, as establishing the
process for prosecuting the range of criminal offences created in the

33
Section 22 of the First Nations Land Management Act, https://laws-lois.justice.gc.ca/eng/
acts/f-11.8/page-4.html#docCont.
34
K’omoks First Nation v. Thordarson and Sorbie [2018] BCPC 114, www.canlii.org/en/bc/
bcpc/doc/2018/2018bcpc114/2018bcpc114.html.

The idea of a ‘private prosecution’ of a criminal offence is a novel

development in Canada, where criminal offences have always been con-
sidered as offences against the state so prosecutable only by the state.
Private prosecution, however, is made possible by the nature and provi-
sions of the Framework Agreement, the First Nations Land Management
Act and particular First Nations land codes.37 The court concluded that
the K’omoks First Nation was entitled to a remedy, and in this case to an
order to remove Thordarson and Sorbie from the property on K’omoks
First Nation land.
However, we need not take the characterization of ‘private prosecu-
tion’ at face value, as appearances might be deceiving, and there might be
an alternative understanding available. What might look like private
prosecution from one perspective could also be viewed as an assumption
of public prosecution by a hitherto unrecognized institution. On this
understanding the possibility of prosecution by the K’omoks First Nation
was not a delegated power, expressly or implicitly provided by the federal
government; the K’omoks First Nation did not, in this sense, pull on
some chain of validity to initiate a criminal proceeding, but instead

35
K’omoks First Nation v. Thordarson and Sorbie, para. 15.
36
Ibid., paras 16–17.
37
For news coverage of the case, see B. Lindsay, ‘They Did It “Their Own Damn Selves”:
First Nation Wins Unusual Bid to Evict Bad Tenants’, CBC News (8 October 2018), www
.cbc.ca/news/canada/british-columbia/they-did-it-their-own-damn-selves-ﬁrst-nation-
wins-unusual-bid-to-evict-bad-tenants-1.4852788.

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     
assumed and so created the power itself. If we keep in mind as well that
criminal offences are typically considered to be the most serious forms of
voluntary wrongdoing, which therefore concern not just individual
victims but political communities in their entirety, then assumption of
the power to prosecute can easily be understood as assumption of a
public power to address issues which are not merely of a private nature.
Recognition by state courts of such a power might then be much more
than simply toleration of a private exercise of power by federal and
provincial courts; it might be part of the mutual recognition by state
and Indigenous authorities to share in the creation, application and
enforcement of criminal law, which was once within the sole purview
of the federal government but no longer.
The details of the K’omoks case show, we suggest, that it is implausible
to see First Nations law and state law (provincial and federal) as repre-
senting distinct legal systems, operating independently at the level of
both norms and institutions. The entanglement is unmistakable. The
ultimate source of law and authority of First Nations land codes such
as the K’omoks First Nation Land Code is shared between First Nations
and the federal government by virtue of the Framework Agreement. And
at the level of application and enforcement of law, norms sourced in
First Nations law as well as federal law coexist and complement each
other, and institutions from both the K’omoks First Nation and state
government (e.g. provincial courts) are envisioned in a relationship of
coordination and assistance. Thordarson and Sorbie might become a
precedent-setting case, and likely one which establishes some of the
relations of entanglement required for First Nations law and state law,
as well as their respective institutions, to coexist and operate
within Canada.
Still, one might object, why could we not understand the relation
between the state and First Nations, in instances such as those presented
in Thordarson and Sorbie, as distinct but interacting legal systems, much
like some claim we see in the European Union where there are long-
standing rival supremacy claims made between member state courts and
the Court of Justice of the European Union on behalf of their respective
legal orders?38 To see why, we must remember from earlier discussion
that to be a legal system requires a distinctive claim to supremacy over all
other legal and normative orders in the same social space, as the ultimate

38
See, e.g., N. MacCormick, Questioning Sovereignty: Law, State, and Nation in the
European Commonwealth (Oxford University Press, 1999), chapter 7.

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 &      
foundation for all other applicable law, and this is precisely what is
missing in the interaction between state and First Nation institutions
regarding First Nation land codes. The foundation of such land codes is
the Framework Agreement, a government-to-government framework of
mutual understanding and recognition between the federal government
and First Nation governments. In broader terms, as one of us elaborates
elsewhere,39 legal systems are social constructions, constructed out of the
beliefs, intentions, self-understandings and practices of relevant actors.
Supremacy claims are part of the beliefs, intentions, self-understandings
and practices of relevant actors for the creation and existence of legal
systems, so where these are absent, legal systems are absent as well. The
framework agreements, letters of understanding and reconciliation
protocols we ﬁnd in Canada are evidence that, however incrementally,
the relevant beliefs, intentions, self-understandings and shared practices
of state institutions and First Nation institutions are moving away from
supremacy-claiming systematicity towards something else. Simply put,
we might be witnessing the social reconstruction of the character of legal
relations between the state and First Nations.
To bring the argument of this section full circle, even while further
coordination is required to manage the entanglement, for First Nations
law and state law to coexist, all that is required is mutual recognition of
each other’s legal orders. Claims of one order to supremacy over the
other are neither necessary nor inevitable as a matter of social fact
regarding the existence of law in the durable alignment and intimate
relationship between law and society most familiar from the life of the
sovereign state. And as we have seen, claims of supremacy, and in
particular claims of supremacy made by state institutions over First
Nations institutions, would only act as political obstacles to shared goals
of reconciliation and partnership.

14.3 A Conceptual Alternative to Legal System

We have sought in this chapter to demonstrate that entangled legality
exists, and that in at least the case of Canada–First Nations relations, it is
viewed as desirable. Along the way we have undermined the applicability
of the concept of legal system and opened the way to asking whether
there is an alternative to the concept of legal system (and primarily its

39
See M. Giudice, Social Construction of Law: Potential and Limits (Edward Elgar, 2020).

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     
state-based form) for thinking about law in general, and more particu-
larly the relations between legal orders.40 In previous work we have
developed what we call an ‘inter-institutional view of legality’ amplifying
themes found in Neil MacCormick’s work on institutional normative
order. The inter-institutional view is particularly useful for the explan-
ation of relations between Canadian state institutions and First Nations
legal institutions. The primary descriptive-explanatory beneﬁt of our
view lies in its showing how relations of mutual reference can arise
between institutions within and across legal orders, operating in ways
that need not be viewed as carrying implicit or explicit supremacy
competitions as part of their purpose or function. Relations of mutual
reference, whether codiﬁed in law or formal agreements, or simply found
as a matter of social practice, may of course take the form and character
of hierarchical relations of supremacy and comprehensiveness; but it is
also possible for them to take the form and character of horizontal
relations of partnership or shared governance, as we have seen in the
case of Canada–First Nations relations. The actual form and character of
relations of mutual reference, in other words, is variable, and contingent
upon the particular ways in which social groups intend, practice and
understand – that is, socially construct – their relations to each other.
The inter-institutional view is designed as a morally neutral
descriptive-explanatory view of law, and as such, its possibility and
success as a conceptual view of law stands or falls on its success in
explaining in general terms (i.e. across as wide a range of contexts as
possible) the social fact existence of law (including the existence of legal
order between legal orders) wherever and whenever it exists. That said, if
such a view is successful on descriptive-explanatory grounds, its adoption
in practice may identify political options or possibilities of a morally
desirable nature which might otherwise remain hidden from view under
prevailing conceptual understandings, such as the understanding of law
which ties it squarely to the idea of a state-based legal system. As we have
seen in the context of Canada, where there is a politically desired goal of
reconciliation between settler and Indigenous peoples, the inter-
institutional view seems superior to the state system-centred view in
making visible and characterizing a form of non-dominating, non-hier-
archical relationship between legal orders. This reconceptualizing will not
of course solve all legal, political, moral and economic problems, but it

40
See again, Culver and Giudice, Legality’s Borders and Culver and Giudice, The
Unsteady State.

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 &      
has the potential to address one particular challenge of reconciliation
identiﬁed by Borrows, Turner and many others: the challenge of recon-
ceiving the status of Indigenous peoples and their legal orders as some-
thing other than subordinate to the comprehensive and supreme
Canadian legal system.41 The inter-institutional view of law may be a
particularly useful precursor or accompaniment to politically viable
reconciliation between Canada and First Nations.
Relations of mutual reference between institutions are also a particu-
larly helpful tool for detecting the emergence of new legal orders, espe-
cially in contexts where there is a plurality of entangled sources of law. In
the Canadian context, we might be witnessing a shift away from recog-
nition of a unitary constitution and towards a plurality of constitutional
sources.42 Since Confederation in 1867, the Constitution Act, 1867, then
the Constitution Act, 1982, have served as the unitary Constitution of
Canada. Yet if the socially accepted relations of mutual reference expand
to include various foundational framework agreements, letters of under-
standing and the Royal Proclamation of 1763, these ultimate sources of
rights and obligations might reasonably be viewed as constitutional
moments, and so new (or revived) constitutional sources of law and
authority. Unitary constitutions might be the ideal in some circum-
stances, but perhaps not so in others. Relations of mutual reference,
which might follow existing, established law or might not, can be seen
to have a kind of reconstitutional power if they occur at a basic, founda-
tional level. Such reconstitutional power might not only be possible but
highly desirable in some contexts.
Clearly, much remains to be done to specify how the inter-institutional
view works as an alternative to system- or supremacy-centred views in
particular contexts, including state–First Nations relations in Canada.
This is not our aim here, as we aimed to demonstrate only the existence

41
We also hope we are not read as supposing that such reconceptualization will be easy or
straightforward. Like other social constructions, such as those of race, gender and
disability, altering the social construction of law in Canada, beyond the handful of
examples identiﬁed in this chapter, is likely to be slow and difﬁcult, if it is accomplished
at all. In general, the inter-institutional view is not a dominant, prevailing view. It is a
mostly revisionary view.
42
For sophisticated accounts of the nature and value of constitutional pluralism in a variety
of contexts, see MacCormick, Questioning Sovereignty; N. Walker, ‘The Idea of
Constitutional Pluralism’ (2002) 65 Modern Law Review 317–59; and N. Krisch,
Beyond Constitutionalism: The Pluralist Structure of Postnational Law (Oxford
University Press, 2010).

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     
of entanglement and its desirability in some circumstances, and in that
context articulate a broader lesson regarding the contingency of the
system- or supremacy-centred view and the consequent importance of
exploring alternative explanations such as that offered by our inter-
institutional view. We plan to continue this line of argument in future
work. What does remain to be done here is to return to the organizing
theme of legal entanglement.
A system-centred concept of law is one way of characterizing relations
between multiple legal orders, so setting the basic terms of entanglement
as ones of hierarchy, supremacy and delegation. As we have demon-
strated, however, the system-centred concept represents one choice of
explanation among others. In particular contexts, such as that of Canada,
the choice of a system-centred concept may pose an obstacle to both the
explanation of changes occurring in an evolving constitution and its
relation to adjacent legal orders, and a further obstacle to an imaginative
exploration of ways to achieve particular political objectives such as
recognition and reconciliation between state institutions and
Indigenous peoples. Exploration and development of basic terms of
entanglement of mutual reference, partnership and non-hierarchical
shared authority is therefore important not only as a tool for successful
descriptive-explanation of the range of possible social facts comprising
law, but also for surfacing conceptual choices which might assist in
achieving morally desirable political objectives. We followed in detail
one instance of legal entanglement in the example of application and
enforcement of a First Nation land code, ﬁnding in this example the
elements of a new, positively entangled First Nations–state relation
showing the possibility of durable coexistence in an era of ‘nation-to-
nation’ or ‘government-to-government’ partnerships. Throughout our
exploration of legal system, entangled legality and evolving state–First
Nations relations, we have shown that there is choice in how to present,
understand and reconceive foundational state–First Nations relations.
This is a choice about the basic terms of legal entanglement, the basic
terms about how relations among legal orders of different communities
and cultures are to be characterized and practised, ahead of and during
the task of working out the particular ways in which norms and insti-
tutions will interact and mutually refer to each other.

Entangled Hopes
Towards Relational Coherence

         

15.1 Entangling Law ‘from Below’

In a world that is deeply entangled, the relations between different bodies
of law, different legal systems and individual norms originating in differ-
ent systems are necessarily called into question. ‘Cases’ increasingly
traverse legal systems and implicate subjects of multiple jurisdictions;
conflicts in places far apart are, moreover, deemed comparable and
references to norms that were applied to similar cases in different places
are made by all involved actors – judges, lawyers, plaintiffs and defend-
ants – irrespective of the legal specificities that distinguish jurisdictions.
‘[B]odies of norms become “entangled” not only as a matter of fact, but
also in discursive construction . . . Actors – litigants, judges, dispute
settlers, observers, addressees – make claims about the relation of norms
from different backgrounds, and they thus define and redefine the rela-
tive weights and interconnection between the norms at play’, writes Nico
Krisch in Chapter 1.1 Relations between different legal systems and
different bodies of law today are increasingly relations of mutual infor-
mation;2 legal ‘systems’ are brought into conversation and challenged to
influence and learn from each other by the various movements that are
driving entanglement.3

I would like to express my gratitude to Laura Affolter, Keebet von Benda-Beckmann and
Angela Lindt with whom discussing the questions raised in this article has been inspiring,
illuminating and enriching.
1
See Chapter 1, Section 1.2.
2
J. Eckert, ‘What Is the Context in “Law in Context”?’, in S. P. Donlan and L. Heckendorn
(eds), Concepts of Law: Comparative, Jurisprudential, and Social Science Perspectives
(Ashgate, 2014), pp. 225–36.
3
This is the case in some ﬁelds of law more than in others, and in some areas of the world
and for some people more than for others: Since state sovereignty and autonomy take



contrasting forms in different regions of the world, people are subjected to varying bodies
of law and different constellations of legal entanglement, some being more directly
impacted by various international norms than those who happen to live in parts of the
world that are governed by clear rules of subsidiarity. See T. Bierschenk, ‘Sedimentation,
Fragmentation and Normative Double-Binds in (West) African Public Services’, in T.
Bierschenk and J.-P. Olivier de Sardan (eds), States at Work: Dynamics of African
Bureaucracies (Brill, 2014), pp. 221–45; L. Eslava, Local Space, Global Life: The Everyday
of International Law and Development (Cambridge University Press, 2015), p. 258.
4
K. von Benda-Beckmann, ‘The Contexts of Law’, XIIIth International Congress of the
Commission on Folk Law and Legal Pluralism: ‘Legal Pluralism and Unofﬁcial Law in
Social, Economic and Political Development’, Chiang Mai, Thailand (9–13 April 2002),
p. 3. PDF on ﬁle with the author.

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  
Evocations of other norms might also result from lay views of rights that
do not differentiate between different systems of law and are oblivious to
the origin of a norm in a speciﬁc system, assuming a general validity of
the legal norms that promise rights.5 Their hopes in law make broad
comparisons about what is to be treated as – structurally – the same in
cases far apart and located in multiple jurisdictions, and by making
claims about the comparability of such cases they seek access to norms
that promise rights. They operate by ignoring – strategically or idealistic-
ally – any boundaries between systems or bodies of law, be they jurisdic-
tional or material, and furthermore, they interpret such bodies and
systems of law in the light of moral norms which give them a particular
content. ‘Often enough, these linkages may connect individual norms,
rather than “bodies” of norms as such, thus taking us yet further away
from the notion of closed systems’ writes Nico Krisch in Chapter 1,6 and
we can see in these mobilizations of law ‘from below’ what he calls ‘the
trans-systemic, networked character of law’ emerging.7
These entangling mobilizations of law ‘from below’ often occur in
highly asymmetrical relations; they concern, in particular, struggles
around human rights violations and the destruction of the environment
along the long global chains of value production. I argue that because
they mobilize law in such asymmetrical relations against more powerful
adversaries, their entanglements of law most often strive – implicitly – for
a trans-systemic coherence. Entanglement stops short of integration, as
Nico Krisch explains. I would argue that the moves towards normative
relationality that these mobilizations of law from below engage in are
moves to overcome the boundaries around legal systems and bodies of
law and towards a trans-systemic and unsystematic coherence. Their end
is not integration in a systemic sense; in fact, they do not bother with
systematicity, but operate with ﬂuid relations between existing norms.
Moreover, these moves are concurrent with moves towards the

5
J. Eckert, B. Donahoe, C. Strümpell and Z.Ö. Biner, ‘Introduction: Laws Travels and
Transformations’, in J. Eckert, B. Donahoe, C. Strümpell and Z.Ö. Biner (eds), Law against
the State: Ethnographic Forays into Law’s Transformations (Cambridge University Press,
2012), pp. 1–22, at p. 3.
6
See Chapter 1, Section 1.6.2.
7
B. de Sousa Santos and C. A. Rodríguez-Garavito, ‘Law, Politics and the Subaltern in
Counter-Hegemonic Globalisation’, in B. de Sousa Santos and C. A. Rodríguez-Garavito
(eds), Law and Globalisation from Below: Towards a Cosmopolitan Legality (Cambridge
University Press, 2005), pp. 1–26.

15.2 Cutting the Network

To understand movements of entanglement from below, we might con-
sider in what way liberal law is at base an instrument of disentanglement,
not only because it is so deeply shaped by its relation to the nation state
and its borders, but also by way of its very categories, which – for better
or worse – have at their horizon the protection of individual liberty and
subjective private rights.8 I ﬁnd it useful to employ Marilyn Strathern’s
analysis of the speciﬁcities of modern liberal law to understand how our
current legal instruments cut, into small segments, issues that are

8
K. Pistor, The Code of Capital (Princeton University Press, 2019); C. Menke, Kritik der
Rechte (Suhrkamp, 2018).

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  
increasingly perceived by those concerned as crossing the boundaries of
jurisdictions and entangling us in fundamental interdependencies. In her
response to Bruno Latour’s assumption about the prolongation of actor
networks in modernity, she held that while the chains of interaction may
become ever longer in modernity, modern institutions of law cut these
chains at particularly short intervals. Strathern takes the example of
intellectual property rights,9 which privilege the ‘invention’ and the
inventor, rather than accounting for the endless chains of actions that
make a certain invention or innovation possible. She observes that many
‘traditional’ legal institutions take into account the sociality of property,
and therefore reflect to some degree the actor networks that produce
‘property’, while modern legal institutions quintessentially abstract from,
and thus disregard, these social relations.
From such an anthropological perspective, contemporary legal insti-
tutions could be said to ‘cut’ interdependent chains of action in several
ways: first, as addressed by Strathern, they perform specific cuts around
who is actually legally recognized to be a participant in the production of
a situation or event. Such cuts can also take other forms. Stuart Kirsch,
for example, when comparing the notions of liability that were raised by
different Melanesian groups with those raised by multinational com-
panies on the basis of scientifically established causal relationships, found
that Melanesians hold accountable those who have created the context
for a particular social interaction that has led to harm:
The underlying principle of liability [relies on the idea that] social net-
works link specific losses to the person(s) or agent(s) responsible for the
context (the road, the feast, the town) in which events occurred, regardless
of their separation in time or the actions of other agents in the interim. In
all of these claims, social networks are stretched to their logical limits.10

Such varying scopes of the social networks that are considered relevant
for an issue concern not only the question of who is considered to have
participated in bringing about a state of affairs, but also who can be
considered affected by it in law. Here, too, liberal law relies on a narrow
idea of who is personally affected and can thus appeal to law, and has
instituted only a few exceptions in the form of public interest litigation.

9
M. Strathern, ‘Cutting the Network’ (1996) 2(3) Journal of the Royal Anthropological
Institute 517–35. See also K. Pistor, The Code of Capital, on the issue of intellectual
property rights, particularly pp. 108–31, 211.
10
S. Kirsch, ‘Property Effects: Social Networks and Compensation Claims in Melanesia’
(2001) 9 Social Anthropology 147–63, at 155.

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  
Second, there are cuts around the time of an event. The most promin-
ent temporal ‘cuts’ are forfeiture and limitation periods, which might
fundamentally jar with the temporality of the effects of a contested
action, the time of harm and suffering.11 There are also more basic cuts
in the temporal reach of law, which concern the narratives of when a
situation actually begins and how long it lasts. This leads us back to
Strathern’s concern with the cuts within actor networks, which are, of
course, also cuts in time.
The third set of cuts in liberal law are the ways that it separates
different fields of practice. Particularly in international law, different
bodies of law stand in relatively independent relations to each other,12
separating trade from human rights, labour law from ecological issues,
etc. More generally, the differentiation of various fields of law might not
be entirely congruent with the factual interdependence of the fields of
interaction that they regulate. Anthropologists have long questioned the
adequacy of descriptions of social differentiation as conceived by under-
standings of modernity based on differentiation theory, observing the
continuing interdependence of different fields of interaction even in what
are considered highly differentiated societies.13
These cuts of liberal law culminate in distinctions concerning what can
actually be addressed by legal measures, and between what is offered legal
protection and what is not. These might constitute the most pressing cuts
for the mobilizations of law from below, since such mobilizations address
precisely the specific distribution of rights and privileges provided by
current legal instruments. Human rights, for example, often the instru-
ment of entangling legal struggles, protect only some concrete, specific
individual rights. Although ‘poverty, racism, sexism, imperialism, colo-
nialism and exploitation’ might be considered to violate the freedom and
dignity of individuals,14 these are forms of suffering that today cannot be
addressed legally as injuries for which someone is liable. The loss of
livelihood, or of employment, for example, is regulated via insurance and
social welfare, or not at all, but is in most places not legally considered a
violation of individual rights, because myriad forms of dispossession are

11
D. Loher, ‘Everyday Suffering and the Abstract Time-Reckoning of Law’ (2020) 4 Journal
of Legal Anthropology 17–38.
12
Von Benda-Beckmann, ‘The Contexts of Law’, 4.
13
See, for example, T. Thelen and E. Alber (eds), Reconnecting (Modern) Statehood and
Kinship: Temporalities, Scales, Classiﬁcations (Pennsylvania University Press, 2018).
14
R. Cotterrell, Sociological Jurisprudence: Juristic Thought and Social Inquiry (Routledge,
2018), p. 150.

15.3 Mending the Cuts: Entanglements from Below

Here I would like to consider the mobilization of law from below, which
struggles against the cuts of liberal law by means of liberal law itself.
There appear to occur two principal contestations in these mobilizations
of law, each of which entangles law in speciﬁc ways to overcome speciﬁc
‘cuts’ of liberal law. One is the contestation over the attribution of

15
Pistor, The Code of Capital.
16
S. Marks, ‘Human Rights and Root Causes’ (2001) 74 Modern Law Review 57–78. See also
D. Kennedy, ‘The International Human Rights Movement: Part of the Problem?’ (2002)
15 Harvard Human Rights Journal 101–26; S. Moyn, Not Enough: Human Rights in an
Unequal World (Harvard University Press, 2018), particularly pp. 173–222.
17
S. Baer, ‘Inexcitable Speech: Zum Rechtsverständnis postmoderner feministischer
Positionen am Beispiel Judith Butler’, in A. Hornscheidt, G. Jähnert and A. Schlichter
(eds), Kritische Differenzen – geteilte Perspektiven (Westdeutscher Verlag, 1998),
pp. 229–43.
18
See the arguments of Maksymilian del Mar on how legal imagination in legal ﬁctions and
other forms of legal reasoning provide new possibilities of interpretation ‘hinting at the
possibility, perhaps even desirability [. . .] of introducing, more explicitly, a new rule in
the future’. See M. Mar, ‘Legal Reasoning in Pluralist Jurisprudence’, in N. Roughan and
A. Halpin (eds), In Pursuit of Pluralist Jurisprudence (Cambridge University Press, 2017),
pp. 40–63, at p. 51.

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  
responsibility in the long chains of ‘distributed agency’ across the globe.
The second type of contestation is over which norms actually apply to a
case. This often also contests the limits of what can be addressed legally
as a harm.
The ﬁeld in which such struggles against the ‘cuts’ of liberal law are
possibly most evident is struggles around human rights violations and
environmental damages along the long global chains of value production.
The transnational lawsuits brought by people affected by harm resulting
from the activities of multinational corporations concern the question of
who is to bear responsibility for this harm.19 Such transnational lawsuits
ﬁrst attempt to expand the scope of responsibility from the person on the
ground, whose actions directly lead to harm, to the headquarters of
multinational companies. This move raises the question of where to
sue, and thus, which jurisdiction and which legal system comes to bear
on the case.20 Transnational lawsuits thus entangle the laws of host states
with those of the home states of multinational companies. Furthermore,
they often try to distribute the burdens of liability anew by renegotiating
mediate responsibility: actions and omissions that enable (rather than
directly cause) situations of damage and injury are increasingly moving
to the centre of litigation.21 They address a wider range of actors than
conventional legal treatments of global value chains, which typically cut
short these chains into contractual relations between a limited number of
actors. By addressing a larger set of actors, such struggles entangle the
laws that regulate liability, tort and criminal responsibility in the various
legal systems to which the actors partaking in these long chains of
production and consumption are subject. In both tort and criminal law,
claimants as well as lawyers are reaching ever farther, drawing causal and
moral connections between events, actions, suffering and remedies.

19
See e.g. M. Galanter, ‘When Legal Worlds Collide: Reflections on Bhopal, the Good
Lawyer, and the American Law School’ (1986) 36 Journal of Legal Education 292–310; S.
Sawyer, ‘Disabling Corporate Sovereignty in a Transnational Lawsuit’ (2006) 29 Political
and Legal Anthropology Review 23–43.
20
See N. Krisch, ‘Entgrenzte Jurisdiktion: Die extraterritoriale Durchsetzung von
Unternehmensverantwortung’ (Jurisdiction Unbound: Extraterritoriality and Corporate
Responsibility), in Deutsche Gesellschaft für internationales Recht (ed.),
Unternehmensverantwortung im internationalen Recht (2020), pp. 11–38.
21
In other fields, such as that of international criminal law, the role and responsibility of
those who enable violent conflicts by legally exporting weapons, trading in ‘conflict
resources’, etc. is also now receiving increasing attention, as is the role of states in human
rights violations committed by third parties.

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  
Current legal initiatives such as the French loi de vigilance, the
Lieferkettengesetz debated in Germany or the Konzernverantwortungsinitiative
in Switzerland all seek to transform both the delineations of jurisdic-
tions22 and, to a lesser degree, the relative weight of primary and
secondary responsibility. However, to the extent that these laws and
legal proposals concern very specific obligations, such as disclosure
requirements or due diligence principles, and rely on rather nebulous
identifications of a corporation’s ‘sphere of influence’, they do not
overcome the narrow spatial or temporal cuts of current conceptions
of liability.23
At the same time, such struggles over the attribution of responsibility
are now sometimes carried onto a different level. Litigation against states,
the host states of multinational companies as well as – particularly in
relation to climate change – the home state of companies that globally
pollute or enable pollution, is increasingly chosen as an avenue of protest
via law. For example, in a case brought against the Ministry of the
Environment of Ecuador and the state-owned mining company
ENAMI EP over a mining concession granted to the Canadian company
Cornerstone, which Laura Affolter observed24 – the ‘Los Cedros case’ as
it is referred to – claims were made not against the corporation, and not
for harms that had occurred. Rather, the plaintiffs targeted the govern-
ment of Ecuador for issuing the licence for mining, thereby shifting
responsibility to the state for making economic activities possible that
would – in their perception – inevitably produce harms to the environ-
ment and the people living in the vicinity of the mine.
The shift from local causers to transnational enablers is now followed
by a shift from those transnational enablers to the states that make their
operation legally possible – the enablers of the enablers, so to speak. This
puts at issue the legal structure in which corporations, or rather corporate
activities, are embedded. Such legal structures are today not made by
states alone, particularly as concerns international law, as multiple actors
including corporations, international organizations and private law firms

22
Krisch, ‘Entgrenzte Jurisdiktion’, 22f.
23
They are often counteracted by bilateral or multilateral trade agreements, or the insti-
tution of special economic zones, which respond to movements of jurisdictional exten-
sion by limiting contractually what norms and regulations corporations are required to
comply with.
24
L. Affolter, ‘The Responsibility to Prevent Future Harm: Anti-mining Struggles, the State,
and Constitutional Lawsuits in Ecuador’ (2020) 4 Journal of Legal Anthropology 78–99.

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  
are increasingly involved in drafting law.25 International organizations
such as the World Trade Organization (WTO) and the International
Monetary Fund (IMF) have developed their own norm-generating for-
mats, and while they are formally constituted by their member states,
only some states have an effective say in them. This should not deﬂect
attention from legislatives as lawmakers, administrations as issuers of
licences and governments as signatories to investment treaties and the
governmental decisions that make corporate activities possible. Even if
some states are severely restricted in their choices of whether or not to
ratify international agreements, formally it is states that make the laws
that regulate the global economy and give corporations their legal shape.
More importantly, it is state governments that choose which laws to
enact, and how and when to enact them.26 This is what Shalini Randeria
pointed to with her observation of the ‘cunning’ of states to avoid
accountability towards their citizens.27 Randeria also points to the differ-
ences among states in the degree of autonomy they have towards inter-
national organizations, corporations and international law. However, it
could be claimed that even severely ‘dependent’ states have room to
manoeuvre, and the way they do so is a matter of political choice.
Ecuador is an interesting example in this regard, considering the different
choices subsequent Ecuadorian governments have taken.
The ongoing claim against the state of Ecuador in the Los Cedros case
mentioned above calls into question the mining policy adopted by the
current government, and with it its entire economic policy. In this way, it
inches closer to challenging the production of the structural possibilities
of harm that have so often been overlooked in human rights struggles.
Such claims not only shift responsibility onto states – host states as
well as the home states of multinational companies – but further, by
focusing on the creation of the legal conditions for harmful activities by

25
J. Mugler, ‘Regulatory Capture? Fiscal Anthropological Insights into the Heart of
Contemporary Statehood’ (2019) Journal of Legal Pluralism and Unofﬁcial Law 379–95;
P. Dann and J. Eckert, ‘Norm Creation beyond the State’, in M. C. Foblets, M. Goodale,
M. Sapignioli and O. Zenker (eds), The Oxford Handbook of Law and Anthropology
(Oxford University Press, 2020).
26
Dann and Eckert, ‘Norm Creation beyond the State’; Krisch, ‘Entgrenzte
Jurisdiktionen’, 34.
27
S. Randeria, ‘The (Un)making of Policy in the Shadow of the World Bank: Infrastructure
Development, Urban Resettlement and the Cunning State in India’, in C. Shore, S. Wright
and D. Però (eds), Policy Worlds: Anthropology and the Analysis of Contemporary Power
(Berghahn Books, 2011), pp. 187–204.

15.4 The Import of Other Norms

The interpretations of the responsibilities of different actors thus chal-
lenge the jurisdictional cuts currently shaping liability. Beyond these
jurisdictional entanglements engendered by the mobilization of law from
below, it is the actual ‘import’ of other norms into the legal reasoning
pertinent to a case that entangles law in these struggles over the harms
that result from global capitalism. To come back to the case brought
against the Ministry of the Environment of Ecuador and the state-owned
mining company ENAMI EP over a mining concession granted to the
Canadian company Cornerstone, potential harms addressed were those
to a healthy environment, harms to livelihood and harms to nature. The
lawyer for the plaintiffs argued on the basis of Articles 71, 73, 397 and
407 of the Constitution of Ecuador that enshrine the principle of ‘buen
vivir’ and the rights of nature as inherent in it. Other activist lawyers at
ﬁrst criticized the mixing up of claims to the rights of nature and the
rights to a healthy environment, arguing that these were separate issues,
and that the rights of nature were not well served by being mixed up

28
K. Bayertz, ‘Eine kurze Geschichte der Herkunft der Verantwortung’, in K. Bayertz (ed.),
Verantwortung – Prinzip oder Problem? (Wissenschaftliche Buchgesellschaft, 1995),
pp. 3–71, at p. 29.
29
Like the imagination in legal reasoning that Maksymilian del Mar call us to explore for
providing models of possible interpretation for the future (see Mar, ‘Legal Reasoning in
Pluralist Jurisprudence’), such mobilisations suggest new normative possibilities. .
30
See Mar, ‘Legal Reasoning in Pluralist Jurisprudence’, p. 45.
31
For this notion of translation, see e.g. A. Behrends, S-J. Park and R. Rottenburg (eds),
Travelling Models in African Conﬂict Management: Translating Technologies of Social
Ordering (Brill, 2014).

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  
with, or even identiﬁed with (and reduced to), rights to a healthy envir-
onment. They then changed course, and joined as amici curiae to invoke
Article 11 of the Additional Protocol to the American Convention on
Human Rights in the Area of Economic, Social and Cultural Rights
(Protocol of San Salvador), which establishes the right to a healthy
environment and states that everyone shall have the right to live in a
healthy environment and to have access to basic public services, and that
the signatory states shall promote the protection, preservation and
improvement of the environment. They referred to the Stockholm
Declaration of 1972 and to the judgement of the Inter-American Court
of Human Rights (IACrtHR) in the case of Indígena Yakye Axa v. The
State of Paraguay, which established property rights over ancestral land
and the state’s obligation to protect the traditional means of livelihood of
Indigenous communities as part of the right to life. Furthermore, they
referred to an Advisory Opinion of the IACrtHR (OC-23/17,
15 November 2017), the Rio Declaration on Environment and
Development (1992), the Convention on Biological Diversity, the
United Nations Framework on Climate Change and a judgement by
the Columbian Constitutional Court. In the second instance, the
‘Regional Agreement on Access to Information, Public Participation
and Justice in Environmental Matters in Latin America and the
Caribbean’ was added to this list.
The claim thus brought into relation regulations on biodiversity with
social and economic rights, judgements on Indigenous rights and reso-
lutions on states’ obligations to take measures preventing further climate
change. Moreover, the concept of buen vivir, which was incorporated in
the Ecuadorian constitution in 2008, could be said to directly challenge
the cuts that liberal law makes to separate different ﬁelds of human
action. Characteristic of the principle of buen vivir is that it overcomes
the opposition between human and non-human nature that modern law
creates by separating the bodies of law that regulate the economy,
intimate relations, the use of resources and the treatment of non-human
nature. Like the Indigenous approaches to law that Kirsten Anker
describes in Chapter 3, buen vivir provides for norms that perceive all
relations as inextricably entangled.32

32
The lawyers bringing the case were initially criticised by colleagues who were otherwise in
favour of their endeavour precisely for ‘mixing up’ the rights of nature and the right to a
healthy environment, which it was claimed would weaken the claim. They were also
critical of the employment of the instrument of a ‘consulta previa, libre e informada’,

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  
Everywhere, the constitutional claims made in the name of the rights
of nature or in relation to the right to life and physical integrity aim at
structural change that goes far beyond legislating binding due diligence
norms for corporate legal responsibility. In this way, they transgress the
conventional limitations of which harms can actually be addressed by
law. The claim that issues regulated by different bodies of law are in fact
intricately connected is a central proposition in such struggles. Keebet
von Benda-Beckmann shows how, paradigmatically, in the dispute about
the availability of low-priced AIDS medicine, the WTO accepted the
argument that the prices of medicines were not only an issue of free
trade regulation, but also one of human rights: ‘In this dispute two bodies
of law that had been regarded as separate, had been successfully linked.
WTO could no longer reject the human rights as not belonging to its
relevant context. From now on, arguments of human rights are in
principle legitimate claims in WTO procedures.’33 The World Health
Assembly and the UN Human Rights Commission, following activist
campaigns, urged an interpretative entanglement of the different areas of
legal regulation. The discursive entanglement provided for the concepts
and (legal) arguments to become part of negotiations where they had not
been so before. The ‘cuts’ of liberal law around jurisdictions and the
limited reach of liability, including temporally (and regarding the ‘rights’
of future generations), are thus contested; different ﬁelds of interaction
and regulation are purported to be inseparable. In this contestation,
claimants draw upon hitherto unrelated norms from various bodies of
law and connect them in a ‘situation’. In this situation, the distinctions
between different bodies of law and between moral and legal norms are
dissolved. What emerges is interlegality.34 Interlegality, in the under-
standing of Santos, does not denote hybrids, but rather the mutual
informing of different norms and normative orders, through which novel
forms and meanings emerge.

which applies only to areas in which indigenous people and descendants of Africans live,
which this was not. The opinion that ecological preservation and human rights were
distinct legal ﬁelds and had little to do with each other was voiced, and different
interpretations of buen vivir were articulated in the case in Ecuador by the amicus curiae
of the defendants and that of the plaintiffs. See Affolter, ‘The Responsibility to Prevent
Future Harm’.
33
Von Benda-Beckmann, ‘The Contexts of Law’, pp. 4–5.
34
B. de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization, and
Emancipation (Cambridge University Press, 1995), p. 473.

To return to the idea of legal trouble that Susanne Baer proposes:

Legal trouble can be caused by judges who make a dissenting judgment in
the lowest instance [. . .]. Legal trouble can be triggered by lawyers who
simply claim what does not yet exist in the traditional, regularly dominant
and discriminatory discourse. Or legal trouble can be created within the
framework of a legal policy in which, last but not least, draft laws are
presented that oppose the dominant discourses by dissident positions.37

One might thus argue that norms inform each other not only when
incorporated into the effective normative legal realm through adjudi-
cation and the legal reasoning of judges,38 but also when rejected in

35
See Chapter 1, Section 1.2.
36
Chapter 1, Section 1.5.
37
Baer, ‘Inexcitable Speech’, p. 242 (my translation).
38
Stuart Kirsch also points particularly to adjudication as a process of ‘reverse translation’
that is the import of norms from other normative orders into liberal law. See S. Kirsch,
‘Juridiﬁcation of Indigenous Politics’, in J. Eckert, B. Donahoe, C. Strümpell and Z. O.
Biner (eds), Law against the State: Ethnographic Forays into Laws Transformations
(Cambridge University Press, 2012), pp. 23–43, at p. 39. See also F. von Benda-
Beckmann, ‘Pak Dusa’s Law: Thoughts on Legal Knowledge and Power’, in E. Berg, J.
Lauth and A. Wimmer (eds), Ethnologie im Widerstreit: Kontroversen über Macht,

15.6 Counter-Entanglements
This is therefore not the end of the story. When local social struggles
against multinational corporations succeed either in winning their cases,
or in obliging their governments to regulate corporations’ activities more
strictly, the conﬂicts today often shift to arbitration between the corpor-
ations and host states on the terms of the investment regimes that host
states have concluded with the home states of the corporations in
question, or their national investment laws. In Ecuador, for example,
after the civil lawsuit against Chevron, in the so-called ‘oil dumping’ case
about the devastating pollution in relation to Texaco’s41 operations in the
Lago Agrio oil ﬁeld, was won in all instances, the international arbitral
tribunal in the dispute between the government of Ecuador and Chevron
obliged Ecuador to pay compensation for damages to the company’s

Geschäft, Geschlecht in fremden Kulturen (Trickster Verlag, 1991), pp. 215–27. Here,
Benda-Beckmann argues that it is ultimately judges who determine what is law.
39
J. Eckert, ‘From Subjects to Citizens: Legalisation from Below and the Homogenisation of
the Legal Sphere’ (2006) 38 Journal of Legal Pluralism and Unofﬁcial Law 45–75.
40
F. von Benda-Beckmann, K. von Benda-Beckmann and J. Eckert, ‘Rules of Law and Laws
of Ruling: Law and Governance between Past and Future’, in F. von Benda-Beckmann, K.
von Benda-Beckmann and J. Eckert (eds), Rules of Law and Laws of Ruling: On the
Governance of Law (Ashgate, 2009), pp. 1–30.
41
Litigation against Texaco claiming for the clean-up of the polluted area and compen-
sation to its inhabitants began in 1993. In 2001 Chevron acquired Texaco and in 2011 was
ordered to pay compensation by an Ecuadorian court. However, a US court in 2014 over-
turned the verdict, arguing that the plaintiffs had used coercion and bribery, and opening
a case against their lawyer under the RICO Act. The Permanent Court of Arbitration in
The Hague in 2018 ruled in favour of Chevron, too.

42
See Chevron Corporation and Texaco Petroleum Company v. Ecuador, PCA Case no.
2009-23, UNCITRAL, Partial Award, 30 August 2018, part X, para. 10.13 (i).
43
Ibid., para. 10.13 (ii).
44
Ibid., para. 10.13 (iii).
45
Informe Ejecutivo Sobre Estado Del Caso Chevron Corporation y Texaco Petroleum
Company v. Republica del Ecuador (Caso CPA No 2009–23), Procuraduría General del
Estado, 2019), p. 2.
46
Personal communication from Pablo Fajardo to Laura Affolter, received by the author
13 November 2019.
47
Memorando No. MEF-SFP-2019-0036 (Subsecretario de Finanziamento Publico, 2019),
p. 15.
48
Article 37 of the law stipulates that the Ecuadorian state must agree to domestic or
international arbitration to resolve disputes regarding investment agreements. In a
further provision, the law states that for investment agreements whose value is over
US$10 million, the investor may initiate proceedings before a number of arbitral insti-
tutions, namely the Permanent Court of Arbitration, the International Chamber of

15.7 From the Particular to the Singular?

Beyond the different pathways of entanglement there is, it seems, yet
another response to the protesting entanglements from below. This
points neither towards plurality ﬁnding a form nor towards greater
coherence, but in an entirely different direction: beyond its effects on
normative developments ‘within’ systems of law, the entanglement of law
created by appeals to other norms might actually lead to cases being
treated increasingly as singular, that is, with regard to their unique

Commerce or the Interamerican Commercial Arbitration Commission. The arbitration

will be governed by the UNCITRAL Rules or the relevant institutional rules.
49
Personal communication from Pablo Fajardo to Laura Affolter, received by the author
13 November 2019.
50
See Chapter 1, Section 1.4.2.

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  
constellation rather than how they relate to general norms (regardless of
which system they might stem from). Rather than entanglement leading
to closer and more systematic relations between legal systems, entangle-
ment might actually support – possibly inadvertently – another tendency
in litigation, namely ‘singularization’.
We observe that the legal struggles against multinational corporations
that cross jurisdictional boundaries in seeking to attribute responsibility
for harm that occurs in relation to these companies’ economic activities
are rarely adjudicated but tend rather to be settled out of court, if they are
not simply dismissed beforehand.51 As in many such litigations, in the
Monterrico case analysed by Angela Lindt, an out-of-court settlement
was reached three months before the trial date. Claimants had sued
the British mining company Monterrico and its Peruvian subsidiary
Rio Blanco Copper for human rights violations in relation to a protest
against the mine, in which twenty-eight people were arrested. The claim-
ants sought damages for the involvement of Monterrico and Rio Blanco
personnel in the violence perpetrated against them during the three
days of detention, as well as for the material support provided to
the police, and the companies’ failure to prevent police violence. In a
way that was reminiscent of Union Carbide case in Bhopal and
many others, Monterrico did not admit any liability, but agreed to pay
compensation to the plaintiffs. In return, the plaintiffs withdrew their
complaint by accepting the compensation and waived the need for a
judgement on whether the parent corporation bore any responsibility.52
The exact content of the settlement and the precise sum of compensation
were not disclosed, and the plaintiffs were obliged not to make them
public.
Settlements concentrate not on what is speciﬁc to a case and how that
speciﬁcity might be related to a general norm. Rather, cases are treated as
singular, as concerning a singular relationship between the parties

51
See Chapter 8. See also A. Lindt, ‘Transnational Human Rights Litigation: A Means of
Obtaining Effective Remedy Abroad? (2020) 4 Journal of Legal Anthropology 57–77; J. A.
Zerk, ‘Corporate Liability for Gross Human Rights Abuses: Towards a Fairer and More
Effective System of Domestic Law Remedies’, report prepared for the UNHCHR (2014),
www.ohchr.org/Documents/Issues/Business/DomesticLawRemedies/StudyDomesticeLaw
Remedies.pdf.
52
Lindt, ‘Transnational Human Rights Litigation’; C. Kamphuis, ‘Foreign Investment and
the Privatization of Coercion: A Case Study of the Forza Security Company in Peru’
(2012) 37 Brooklyn Journal of International Law 529–78.

In fact, comparability is made irrelevant, as the settlement is a private

agreement between the two parties involved in the particular case, a
fundamentally unrepeatable situation.54 Occurrences of harm turn from
being ‘cases’ to being singular ‘incidents’, and the very legal entanglement
created by the references to various norms that might possibly be rele-
vant is dissolved in these cases, which are treated as private negotiations
between the involved parties.
This prevention of precedent and, with it, a settled body of law that
could be entangled with other such settled bodies of law is facilitated by
the fact that settlements such as the one in the Monterrico case are
conducted in private and as matters of private contract law. Even if we
learn on what terms the settlement was reached, that is, what arguments
about duties and responsibilities came to bear on it, it has no relevance
for other cases because it is a private agreement that holds only for that
speciﬁc constellation of actors and the claims which they make on each

53
J. Robinson and L. Lazarus, Report for the UN Special Rapporteur on Business and Human
Rights – Obstacles for Victims of Corporate Human Rights Violations (Oxford Pro Bono
Publico, 2008).
54
This unrepeatability is apparently not always strong enough for the defendants, and is
therefore sometimes further enforced by the conditions they insist on for engaging in
such negotiations: ‘Several practitioners pointed to instances where the business defend-
ant required that the law firms make commitment to not representing any other plaintiff
in any similar case for a period of several years, or not providing even general infor-
mation about the kinds of harms identified during the case to any other person. Such
commitments may be enforced by a threat that a breach of the commitment by the law
firm will result in the plaintiffs having to forfeit the settlement.’ See M. B. Taylor, R. C.
Thompson and A. Ramasastry, Overcoming Obstacles to Justice: Improving Access to
Judicial Remedies for Business Involvement in Grave Human Rights Abuses (Amnesty
International, 2010), p. 17.

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  
other. The parties involved are free to agree over which norms come to
bear on the settlement. The privacy of the agreement can ‘convert [. . .]
the accountability of the perpetrators into a private matter’.55
When the parties involved are furthermore obliged to keep the out-
come secret, settlements and the norms that are activated within them
are entirely removed from public view. Thus, singularization proceeds in
several ways: the avoidance of a judgement about fault relating the case to
a general norm, the private agreement between the parties involved and
secrecy. Everything prevents the case from being a precedent, or simply
an example or model, for others; by making comparability irrelevant,
entanglement, too, is inhibited or at least left suspended.
The privatization inherent in such settlement negotiations thus intro-
duces new ‘cuts’ in Strathern’s sense, cuts around a single constellation of
actors brought together by the specific legal limitations regarding legit-
imate claimants in the event of a harm. Even when settlements include
compensation payments to collectives, or compensatory action in
affected regions, the limitations of who can actually be a party to a
settlement are decided by as yet unentangled law, as I mentioned earlier
in this section. The question of who is to be considered ‘involved’, that is,
who is a legitimate plaintiff, is most often determined according to the
conventions of the jurisdiction where the corporation has its headquar-
ters – its home country. As I briefly discussed in Sections 15.2 and 15.3,
liberal law tends to rely on comparatively narrow conceptualizations of
the reach of liability and likewise of identifying those who are affected,
particularly in cases related to human rights, because of the concen-
tration of human rights on specific violations of individual rights.
The avoidance of precedent, one could say, responds to entanglement
by actively making the comparability of cases irrelevant. Singularization
disentangles cases from the systematicity of law and redirects the hopes
that had once aimed at ‘justice’56 towards individual remedy. The fact
that these cases are settled out of court is not directly caused by the
entanglement of law so much as triggered by the arguments and claims of
the plaintiffs. They are settled out of court for various reasons,57 foremost

55
Kamphuis, ‘Foreign Investment and the Privatization of Coercion’, 562.
56
See Lindt, ‘Transnational Human Rights Litigation’; Loher, ‘Everyday Suffering and the
Abstract Time-Reckoning of Law’.
57
See e.g. M. Galanter, ‘A Settlement Judge, Not a Trial Judge’ (1985) 12 Journal of Law &
Society 1–18.

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  
among them the many obstacles that stand in the way of plaintiffs
successfully suing multinational corporations, such as the high costs
and long durations, time limitations and jurisdictional limitations. It is
commonly argued that such alternative forms of dispute resolution in
fact particularly benefit those plaintiffs who cannot afford long and
expensive court procedures. Settlements lessen the costs of procedures
and make restitutive measures more accessible for the victims, and
because they do not need to spend their efforts on attributing fault, can
ameliorate suffering more effectively.58 However, they often do not bring
about a judgement about where fault lies, nor do they produce a prece-
dent, the two issues which are often central to the plaintiffs’ hopes, their
ideas of justice and their desire for preventive signals.
We have here another form of the proximity-distancing dynamic
Krisch describes in Chapter 1: the ‘distancing’ entailed in singularization
not only preserves or increases the distance between different bodies of
law or among different systems of law. Rather, it creates a distance
between cases, so that cases cease to be ‘cases’ exemplary of a general
type, but become unique, that is singular. Singularization is thus a
specific form of distancing, possibly the most radical one, in as much
as singularization does not preserve an earlier distance but introduces a
new logic. This new logic concerns not merely the relation between
different laws, but the idea of law in itself. Law ceases to operate by
subsuming specific instances under a general principle, valid beyond the
specific parties to a legal dispute, and turns into a tool of mediation.
Singularization thus not only prevents precedent but also makes the
development of tertiary norms unnecessary, because it circumvents
rather than regulates the interface.59 A different logic emerges, one that
develops neither systematicity, nor modes of dealing with normative

58
See M. Galanter and M. Cahill, ‘Most Cases Settle: Judicial Promotion and Regulation of
Settlements’ (1994) 46 Stanford Law Review 1339–91, for a critical discussion of the
arguments for settlements as the preferred mode of conﬂict resolution.
59
Could singularization be considered a kind of tertiary procedure in which plurality is
accommodated by singularising cases? This conclusion could be drawn from the obser-
vation that judges, in response to the plurality of norms that could possibly be relevant for
a case, tend to adopt relatively minimalist stances, avoiding broader principles and
instead deciding cases on as narrow grounds as possible (just because the questions of
general principle are so wide open). See e.g. Mar, ‘Legal Reasoning in Pluralist
Jurisprudence’; and N. Krisch, Beyond Constitutionalism: The Pluralist Structure of
Postnational Law (Oxford University Press, 2010), in particular pp. 263–96. Theirs,
however, is rather a reaction to pluralism than an accommodation of it, inasmuch as
pluralism disappears from view in such minimalism.

15.8 Plurality, Singularity or Coherence: Towards a Conclusion

Entanglements of law initiated by struggles for fairer relations, be they
fairer trade relations, fairer labour relations, fairer distribution of the
costs of climate change or a fairer attribution of responsibility in inci-
dents of violence, not only bring into closer proximity norms originating
in different legal systems or bodies of law, they also challenge the
boundaries or cuts that current law establishes along the chains of
distributed agency and around different fields of practice and interaction.
These mobilizations aim to overcome the cuts established by current
legal instruments, even the ones they are mobilizing, and to articulate
new forms of (legal) relations that reflect the interdependence of different
fields of social practice within the (global) chains of action. They are anti-
pluralist in that they strive for trans-systemic coherence.
Krisch explains in Chapter 1 that entanglement is precisely not syn-
thesis; it stops short of integration. I argue that, indeed, integration in a
systemic sense is neither the goal nor the effect of entangling mobiliza-
tions of law from below. These mobilizations of law from below are not
concerned with systematicity in the sense of an intra-systemic logic, and
probably too fragmented and case-bound to produce it.
Nor are these movements much concerned with finding ways to
accommodate the existing legal pluralism so as to avoid conflicts of
law. There are indeed many struggles that strive for the possibility of
pluralism, also struggles that mobilize law from below. Rachel Sieder, for
example, has described the struggles for ‘legal sovereignty’ of the Maya in
Mexico.60 Such struggles for legal sovereignty, and for a realm of auton-
omy in legally plural situations, are, however, movements of ‘distancing’
rather than entanglement. They can mobilize liberal law because it
provides for the recognition of some forms of plurality, such as those
based in legal categories like indigeneity.

60
R. Sieder, ‘The Juridiﬁcation of Politics’, in M. C. Foblets, M. Goodale, M. Sapignioli and
O. Zenker (eds), Oxford Handbook of Law and Anthropology (Oxford University Press, in
press).

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  
The entanglements produced by the mobilization of law from below
I consider here do not strive for such accommodations of pluralism. In
fact, they are often at base anti-pluralist, in that they produce novel
relational meanings, thereby moving towards a trans-systemic and, at
the same time, unsystematic coherence. In their position of relative
weakness, they entangle law simply because they need to make use of
any norm that might provide them with benefits. It is beneficial for them
if all laws providing their claims with legal arguments, no matter where
they stem from, are applicable to their situation. They need to strive for
the normative amalgamation that comes to bear on their case to be
binding for their opponents, and thus for its trans-systemic (trans-juris-
dictional) validity. Hence, I argue that these entangling mobilizations of
law from below strive for coherence. Such coherence is trans-systemic
inasmuch as it refers to norms from various normative orders. It is
unsystematic in the sense noted earlier in this section, not being con-
cerned with systematicity, but rather with coherent relationality.
The vision of coherence that comes to the fore in these hopeful
mobilizations of law leaves behind the systemic character of individual
legal systems; it transcends global legal pluralism, and articulates a more
universal notion of the coherence of law. These mobilizations claim that
different norms, such as those of trade agreements or environmental
conventions and those of civil or human rights, are intricately related to
each other, inseparable even. This is a kind of ‘legal holism’, an approach
to law that attempts to counteract the differentiation of various legal
fields and the borders of different legal systems.
The fact that hopes are placed in the very law that underlies the
unequal distribution of rights and privileges might be due to the ‘appeal’
of the norms invoked, their charisma.61 Krisch distinguishes three path-
ways of entanglement, namely mutual benefit, appeal and coercion. The
appeal of norms, as Krisch writes, might arise ‘for their substantive
content but also for the aura of progress they come with, the Zeitgeist
they represent or the fit they produce with existing commitments.
Likewise, the actors creating such norms may appear as appealing – as
embodying the right values, as culturally superior, etc.’.62 Such appeal
might of course also indicate the hegemonic sway of liberal law and its
power to shape people’s understanding of the world, of themselves and of

61
Philipp Dann and I have distinguished between structural privilege, similar to Krisch’s
coercion, expertise and charisma. Dann and Eckert, ‘Norm Creation beyond the State’.
62
See Chapter 1, Section 1.4.2.

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  
their aims and conflicts. The question of whether an alternative imagin-
ation of the world is possible within the parameters of existing law has
been much debated. I have argued elsewhere that when people turn
towards legal norms to express their hopes and struggle for their future,
they interpret norms in the light of these aspirations – rather than simply
in terms of existing normative orders.63 Of course, these aspirations are
shaped by the normative orders that currently prevail in the historical
situation in which they live. More than being simply evidence of the
hegemonic power of the existing norms of liberal law, such mobilizations
of law from below put forth specific interpretations of rights and entitle-
ments and act upon them in order to shape institutions accordingly.64
Concepts such as ‘vernacularisation’, as proposed by Sally Merry,65 or
‘reverse translation’, as suggested by Stuart Kirsch,66 provide us with
instruments to turn this question into an empirical one.
Singularization that proceeds through the privatization of dispute
settlement and the move from public courts to private agreements
between specific parties runs counter to this. While circumventing rather
than resisting the challenges to current legal instruments and norms
posed by such entangling struggles, singularization prevents entangle-
ments of law from producing novel legal meanings and thus obstructs
legal change. By doing away with precedent, it inhibits the development
of normative entanglements that could better reflect current relations of
interdependence, position anew the various actors concerned in them
and respond to the enabling mechanisms that produce the conditions
that make harm possible.
Singularization does not revert the extensions of jurisdictions, nor does
it refute the plurality of normative possibilities. It rather proceeds in a
different way, namely by making comparability irrelevant, and relation-
ality obsolete; the very idea of normative coherence that drives hopes in
law is circumvented, and cases claimed to be equal to others are dissolved
into the singular relationships among parties to the individual agreement.
Singularization is a form of distancing that keeps not only different
bodies or systems of law apart, but even individual cases.

63
Eckert et al., ‘Introduction: Laws Travels and Transformations’, pp. 1–22.
64
De Sousa Santos and Rodríguez-Garavito, ‘Law, Politics and the Subaltern’, 1–26. S.
Kirsch, Engaged Anthropology (University of California Press, 2018).
65
S. Merry, ‘Transnational Human Rights and Local Activism: Mapping the Middle’ (2006)
108 American Anthropologist 38–51.
66
Kirsch, ‘Juridiﬁcation of Indigenous Politics’, 36.

67
Galanter, ‘A Settlement Judge, Not a Trial Judge’; Galanter and Cahill, ‘Most Cases Settle’.

Tertiary Rules
 

16.1 Introduction
The entanglement between legal orders is a topic that legal theory has,
until very recently, widely ignored or marginalized. For a long time, legal
theory happened in the singular: it was mostly a theory of law, not a
theory of laws. The object was one law, not many – whether that one law
was confined and contingent (as in legal positivism) or all-encompassing
and universal (as in natural law). In such a singular theory of law,
relations between legal orders are ignored because, by definition, a
multitude of laws is not conceptualized. Or, at best, multiple laws are
subsumed, somewhere, under one ultimate law.
Such a multitude of legal orders is a theme of legal pluralism, a
conceptualization of law as plural that has been discussed not only in
legal anthropology and sociology but also in legal theory. Here, entangle-
ment is recognized, but it is often not sufficiently theorized. In legal
sociology, the interrelation between legal orders is often conceptualized
as interlegality, a rather vague concept that obfuscates more than it
actually explains.1 In legal theory, attempts have been made to concep-
tualize entanglement, and some of these are discussed in this chapter.
However, there is a wide disparity of views. Some discuss entanglement
as a matter of social fact, others as a matter of legal ordering. Some
discuss entanglement from a neutral perspective, others view it from the
perspective of peculiar legal orders, some as both. Some authors discuss a
plethora of mechanisms to reduce conflicts between legal orders, or to
organize interactions, or the like. But it does not always become clear

Thanks for valuable suggestions to David Dyzenhaus, Nico Krisch, and Tomáš Morochovič.
1
B. de Sousa Santos, ‘Law: A Map of Misreading – Toward a Postmodern Conception of
Law’ (1987) 14 Journal of Law and Society 279–302; J. Klabbers and G. Palombella (eds),
The Challenge of Inter-Legality (Cambridge University Press, 2019).



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  
what holds these mechanisms together and what keeps them apart. What
we lack is an overarching conceptualization of these mechanisms.
This chapter suggests that these mechanisms should be understood as
a peculiar type of legal rules. These rules are different from primary rules
because they do not provide commands, dos and don’ts. They are also
different from secondary rules because they do not determine issues of
validity and valid change of a legal system, at least not in the way in
which we traditionally understand secondary rules. Instead, they are a
different type of legal rules I propose to call tertiary rules. Tertiary rules
are rules with which one legal order designates, relative to itself, the
normative space of another legal order to which it is not hierarchically
superior. In an earlier publication, I discussed a special case of these
tertiary rules, namely the rule of external recognition.2 In this chapter,
I generalize the concept.
Tertiary rules are an element necessary for the development of a
concept of laws instead of law. The argument for a concept of laws rests
on the conviction that a proper understanding of global law is neither
monist or pluralist but instead must transcend the difference between
monism and pluralism. That global law is differentiated into distinct legal
systems, which interrelate and organize their interrelations through
tertiary rules. Such tertiary rules therefore presume that legal systems
are at least partly autonomous from each other, but at the same time they
also make such partial autonomy possible.
The argument rests on a number of assumptions. These assumptions
are not self-evident and will require justification at some point, but here
is not the right place to demonstrate why they are justifiable, and so I ask
the reader to accept them, for the purpose of this argument, as given.
The first assumption is that global law is both one and many at the
same time.3 Global law is many in the sense that we have many separate
legal orders, state and non-state, and we do not have a comprehensive
meta-law that brings them all together. Global law is one in the sense that
none of the many separate legal orders really exists in isolation from the
other: they interrelate with each other, and none of them can be fully

2
R. Michaels, ‘Law and Recognition: Towards a Relational Concept of Law’, in N. Roughan
and A. Halpin (eds), In Pursuit of Pluralist Jurisprudence (Cambridge University Press,
2017), pp. 90–115. Some of the material in this chapter draws on that earlier chapter.
3
Ibid; see also T. E. Riesthuis, ‘The Intertwinement of Legal Orders - A Critical
Reconstruction of Theories of Jurisprudence’ PhD Thesis, Erasmus University
Rotterdam (2019).

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  
explained without regard to the other. In this sense, entanglement is a
universal condition of law.4 If this is so, then legal theory must change
from a concept of law to a concept of laws, from a concept of law as
essentially one to a concept of law as one and many at the same time. For
this concept of laws, traditional legal theories, whether monist or dualist,
are useful but insufﬁcient.
The second assumption is that legal systems are separate from each
other. This has become a minority position within pluralist theories of
global law. Such theories often emphasize that borders between alleged
systems are blurred, or that transnational law does not allow for such
borders altogether.5 In fact, there is a fascination with hybrid spaces that
transcend borders. This is not the place to demonstrate comprehensively
the assumption of this chapter in favour of separate legal systems, but
two remarks may be helpful. First, the observation that borders are
transcended is often a sociological and not a legal observation. As such
it is important but not novel: it is a core insight of empirical legal
pluralism that legal rules of different origins not only overlap but are
also frequently mixed. But such sociological observations are of limited
use for a legal theory that looks at the operation of legal rules. Second, the
assumption is not that legal systems are natural entities to which the law
only responds. In fact, the separatedness of legal systems is in no small
part itself a creation of law, and most importantly by tertiary rules.
Tertiary rules thus do not only respond to, and organize, a world of
separated legal systems, they are themselves involved in the creation of
such a system.
This last argument has already alluded to the third assumption,
namely that entanglement between legal orders is organized by law.6
Law organizes its own plurality through its own rationality: it is inad-
equate and incomplete to describe entanglement solely in extra-legal
ways (just as it would be inadequate and incomplete to describe, for
example, contractual relations solely in extra-legal ways). In this sense,
the theory is a positivist theory: it assumes that not only the deﬁnition
and the creation of law but also the way in which legal orders relate to

4
I take it that this is what Nico Krisch has in mind with the concept of entanglements: see
Chapter 1, Section 1.1.
5
In this context, Nico Krisch, in Chapter 1, speaks of ‘straddling norms’ or
‘straddling practices’.
6
See also Section 16.4.2.

7
Legal positivism is here meant in the sense of normative positivism: the bindingness and
legitimacy of legal rules depends on legal, not extra-legal criteria. (See, e.g., J.-R.
Sieckmann, Rechtsphilosophie (Mohr Siebeck, 2018), pp. 14–15.) This deﬁnition is differ-
ent from the one in F. Schauer, ‘Normative Legal Positivism’, in P. Mindus and T. Spaak
(eds), Cambridge Companion to Legal Positivism (Cambridge University Press, 2021),
pp. 61–78. It is not meant in the sense of sociological positivism: that legality is an
observable social fact. In this sense, it follows Kelsen rather than Hart. For a forceful
argument in favour of Kelsen’s basic norm over Hart’s rule of recognition for problems of
cross-border normativity, see D. Dyzenhaus, ‘The Janus-Faced Constitution’, in J.
Bomhoff, D. Dyzenhaus and T. Poole (eds), The Double-Facing Constitution
(Cambridge University Press, 2020), pp. 17–53, p. 17.
8
See, e.g., J. Kammerhofer and J. d’Aspremont (eds), International Legal Positivism in a
Post-modern World (Cambridge University Press, 2014); L. Siliquini-Cinelli (ed.), Legal
Positivism in a Global and Transnational Age (Springer 2019).
9
See also Section 16.4.3.

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  
16.2 Cross-Border Normativity
16.2.1 Primary and Secondary Rules within One Order
Because tertiary rules obviously present themselves as an addition to the
idea of primary and secondary rules, it makes sense to describe first why
the Hartian system of primary and secondary rules is incomplete.10
Hart’s own introduction of a distinction between primary and secondary
rules, introduced in his Concept of Law in 1961, came in response to a
perceived shortcoming of legal positivism at the time. As conceived by
John Austin, legal positivism reduced the law to a system of commands.
The problem with such a definition was its inability to differentiate
between legal and other commands. Why was the order by a sheriff to
hand out one’s assets a legal command, but the similar order of a mugger
was not? How, in short, should one distinguish legal rules from non-legal
threats?
Hart’s answer borrowed from the dual concept of internal and external
sovereignty: ‘The legal system of a modern state is characterized by a
certain kind of supremacy within its territory and independence of other
systems.’11 He went on to find an ingenious explanation for the first of
these aspects, that of supremacy, but not for the second.
For rules to count as law, Hart suggested, they have to emerge from a
source recognized as competent to do so. The rule that determines who
can competently set laws is the so-called rule of recognition – not a legal
rule but a sociological fact for Hart, though others have suggested that
the rule of recognition is better understood as a legal rule. The recogni-
tion of who is entitled to make laws does not yet, on its own, determine
the conditions under which that person’s orders actually are valid law.
The determination of this is done by an additional set of rules that Hart
calls secondary rules. Some of these rules determine who can make laws,
some of these rules determine through what processes laws are made,
some of these rules determine institutions and procedures
of adjudication.

10
My argument thus draws on Hart here in part for terminiological reasons, although it
might actually ﬁt better with a Kelsenian conception of validity. See Dyzenhaus, ‘The
Janus-Faced Constitution’.
11
H. L. A. Hart, The Concept of Law, 3rd ed. (Oxford University Press, 2012), p. 24
(emphases in original). On internal and external sovereignty, see, e.g., S. Krasner,
‘Sovereignty’, in G. Ritzer (ed.), The Blackwell Encyclopedia of Sociology (Wiley-
Blackwell, 2007).

16.2.2 The Challenge from Cross-Border Normativity

Helpful as it is for internal sovereignty,13 the introduction of secondary
rules does not help for external sovereignty. Here, Hart had little to offer.
Granted, external sovereignty itself – the fact that foreign rules could not,
on their own, bind subjects in England – is no problem for his theory.
The challenge for jurisprudence emerges from the plurality of laws, but if
plurality were all there is to it that challenge would not be very great.
What is challenging, and insufﬁciently conceptualized in jurisprudence,
is the relation and interaction between laws – the problem of cross-
border normativity. In his Concept of Law, Hart dealt with the challenge
through a (somewhat simplistic) idea of replication: in his view, the
Russian law that an English court may apply is really not Russian law

12
On potential parallels between Kelsen and Dworkin here, see Dyzenhaus, ‘The Janus-
Faced Constitution’, 41–2.
13
P. Eleftheriadis, ‘Law and Sovereignty’ (2010) 29 Law & Philosophy 535–69.

16.3 Three Strategies for Cross-Normativity

Such cross-normativity is difficult for legal theory to conceptualize. In
this section, I look at three types of responses to the problem, hoping to
cover a wide array of existing responses without having to address, or
even name, each individual response. A first set of attempts denies that
foreign law is law. A second set of attempts denies that foreign law is
foreign. A third set of attempts, finally, denies the interrelation of laws.17

14
This is similar to the so-called local law theory in private international law; see Section
16.3.2.
15
H. L. A. Hart, ‘Kelsen’s Doctrine of the Unity of Law’, in H. L. A. Hart, Essays in
Jurisprudence and Philosophy (Oxford University Press, 1983), pp. 309–42. Cf. D. von
Daniels, The Concept of Law from a Transnational Perspective (Ashgate, 2010),
pp. 158–60.
16
See Hart, ‘Kelsen’s Doctrine’, 310.
17
In an earlier publication I distinguished three modes of responding to foreign law outside
of its recognition at law, namely incorporation, deference and delegation. See R. Michaels,
‘The Re-State-Ment of Non-state Law: The State, Choice of Law, and the Challenge from
Global Legal Pluralism’ (2005) 51 Wayne Law Review 1209–59, at 1231ff. The three
modes correlate with the three positions discussed in Sections 16.3.1–16.3.3 – deference
denies normativity, incorporation denies (or overcomes) foreignness, delegation estab-
lishes hierarchy.

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  
16.3.1 Denying Normativity
A first way to deal with foreign normativity is simply to deny its norma-
tive nature: to treat foreign normativity as fact. We used to find such
approaches quite frequently in legal doctrine. They emerged from a
concern about foreign normativity. But the responses proved to be
neither convincing conceptually nor to lead to adequate normative
results.
A first example is the fact doctrine in civil procedure. The doctrine
emerges from English law, where the only law that could be applied was
domestic law, and so foreign law had to enter the courts not as law but as
fact.18 This has implications in particular for the procedural treatment of
foreign law – under the doctrine, its validity and content must be proven
like that of any other law, and burdens of evidence can be allocated
according to who relies on the foreign law. The fact doctrine is not
entirely wrong: foreign law (like domestic law) is, of course, also a fact.19
But the doctrine cannot explain the normative force that foreign law has
in domestic courts – that it is applied as law, not merely referred to as
fact. Insofar as claims and defences are based on foreign law, it seems
impossible to deny that the foreign law has its own normativity within
domestic courts, and thus differs from facts. Indeed, the procedural
treatment of foreign law as fact demonstrates this (and is another reason
for the doctrine’s decline).20
A second example emerges from choice of law, in particular within an
approach popular for some time in England and the United States and in
a different way in France: the vested rights theory.21 Under this theory,
the applicable law in English courts is still only English law. But foreign
law can enter English courts in the form of rights that parties have
acquired abroad under foreign law and are now having enforced. This
seemed a clever trick to justify normativity while denying that an English
judge would actually apply foreign law, but it was an unsuccessful trick.
The main problem of the theory had already been shown by Wächter in

18
R. Fentiman, Foreign Law in English Courts: Pleading, Proof and Choice of Law (Oxford
University Press, 1998).
19
See N. Jansen and R. Michaels, ‘Die Auslegung und Fortbildung ausländischen Rechts’
(Interpreting and Developing Foreign Law) (2003) 116 Zeitschrift für Zivilprozess 3–55.
20
Comparatively, see Y. Nishitani, ‘General Report’, in Y. Nishitani (ed.), Treatment of
Foreign Law: Dynamics towards Convergence? (Springer, 2017), pp. 3–60, at pp. 18–19.
21
See R. Michaels, ‘EU Law as Private International Law? Reconceptualising the Country-
of-Origin Principle as Vested Rights Theory’ (2006) 2 Journal of Private International
Law 195–242.

16.3.2 Internalization of Normativity

If these theories denied, unsuccessfully, the lawness of foreign law, other
theories attempt to deny the foreignness of foreign law. One way to do so
is through incorporation – turning the foreign rule into a domestic rule.
Short of actual colonization of a foreign country, such incorporation will,
however, rarely be complete.23 The legal rule will remain foreign. It
would be odd to say that rules of Soviet law become rules of English
law merely because a judge applies them.24
Hart’s replication theory provides an alternative explanation: in reality,
he says, English law replicates a rule of Soviet law. It ﬁnds its equivalent
in the so-called local law theory in private international law.25 According
to this theory, an Italian judge, when asked to apply English law, never
really applies English law. What she does apply is a rule of Italian law that
is modelled after English law. Here, the legal character of English law is
accepted, but its normativity is derived from its character as a rule of
Italian law. The doctrine has not been convincing either.
Cavers formulated the most compelling criticism:26

22
The relevant passage is translated in K. H. Nadelmann, ‘Some Historical Notes on the
Doctrinal Sources of American Conflicts Law’, in K. H. Nadelmann, Conflict of Laws:
International and Interstate. Selected Essays (Nijhoff, 1972), pp. 1–20, at p. 16.
23
See J. Raz, ‘Incorporation by Law’ (2004) 10 Legal Theory 1–17.
24
Ibid., 10.
25
W. W. Cook, ‘The Logical and Legal Bases of the Conflict of Laws’ (1924) 33 Yale Law
Journal 457–88; R. De Novo, ‘New Trends in Italian Private International Law’ (1963) 28
Law & Contemporary Problems 808–21, at 812–13.
26
D. F. Cavers, ‘The Two “Local Law” Theories’ (1950) 63 Harvard Law Review 822–32, at
823. See also Dyzenhaus, ‘The Janus-Faced Constitution’, 31–2.

Cavers’ son seems right. When a judge has to apply foreign law, she must,
to a great extent, attempt to apply that law in the way in which it is
applied abroad. What is demanded from her, therefore, is the actual
application of a foreign law. Replication is a cumbersome ﬁction, made
necessary only if we assume that cross-boundary normativity is not
possible. These shortcomings are consequences from Hart’s thinking
within one legal system, namely his own.27

16.3.3 Sharing of Authority

A third attempt to deal with cross-normativity exists in the literature on
legal pluralism. Much of this literature does not conceptualize inter-
actions between overlapping orders, beyond stating that they exist, but
some does. A jurisprudentially ambitious attempt is what Nicole
Roughan calls ‘relative authority’, by which she means ‘shared or inde-
pendently held normative power’.28 Roughan recognizes, based on ideas
from legal pluralism, that multiple legal orders may not only coexist but
even claim normative force with regard to the same situation – a conflict-
of-laws situation, if you will. In response, she suggests that multiple laws
(or institutions) may share authority: they may, each, cover only part of
the normative space. The prerequisite for this is a ‘justified inter-
authority relationship’ between the different orders. Conflicts between
such orders may be resolved by ‘meeting in the middle’ – effectively, the
drawing of compromise.29
From an external perspective, such an idea of shared authority appears
attractive. For a strictly positivist theory, by contrast, it runs into three
problems. The first is that legal orders are not usually incomplete in the

27
On Hart’s ‘parochialism’ see D. Dyzenhaus, ‘Kelsen’s Contribution to Contemporary
Philosophy of International Law’ (2020), https://ssrn.com/abstract=3571343.
28
N. Roughan, Authorities: Conﬂicts, Cooperation, and Transnational Legal Theory (Oxford
University Press, 2013), pp. 136 et seq.
29
N. Roughan, ‘Meet Me in the Middle?’ (2019) 29 Duke Journal of Comparative &
International Law 423–36.

16.4 The Answer of Tertiary Rules

It is proposed that a better way to account for relations between legal
orders is the concept of tertiary rules. Tertiary rules share characteristics
with secondary rules insofar as they do not constitute commands;
instead, they serve to identify the processes by which the applicable
commands can be recognized. This is why several scholars, beginning
with Hart himself, have viewed them as extensions of secondary rules.31
They differ from secondary rules in one signiﬁcant way however: they

30
See D. Kennedy, ‘Strategizing Strategic Behavior in Legal Interpretation’ (1996) Utah Law
Review 785–825, at 795–6, 808–9.
31
J. P. Trachtman, The Future of International Law: Global Government (Cambridge
University Press, 2013), p. 272; T. Schultz, ‘Secondary Rules of Recognition and

16.4.1 Designation of Normative Spaces

A ﬁrst element of this deﬁnition that requires explanation is the rather
amorphous term normative spaces. Why not rather the validity or bind-
ingness of foreign rules? After all, the question for a positivist theory of
law (or laws) in the Hartian tradition is to determine what does and what
does not count as normatively valid.

Relative Legality in Transnational Regimes’ (2011) 56 American Journal of Jurisprudence

59–88.
32
N. Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (Oxford
University Press, 2010), pp. 285–96; von Daniels, The Concept of Law from a
Transnational Perspective, pp. 158–66.
33
Trachtman, The Future of International Law, p. 272, see also pp. 286–87. For an earlier
version of the argument, see J. P. Trachtman, ‘The Constitutions of the WTO’ (2006) 17
European Journal of International Law 623–46, at 627. Trachtman does not, however,
provide a more extensive analysis of either the nature or the scope of tertiary rules, except
to link the concept to an idea of global law as both one and plural. As a consequence,
neither the legal character nor the origin of these tertiary rules becomes clear. A different
concept of tertiary rules can be found in J. Hampton, ‘Democracy and the Rule of Law’
(1994) 36 Nomos 13–44, at 35–36: rules about changing secondary rules.

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  
Tertiary rules do indeed give normative validity to (foreign) legal rules,
but that alone does not distinguish them from secondary rules, and that
similarity does not account for existing differences. The difference is this:
secondary rules operate within one legal order – they give validity to rules
that would otherwise have no validity at all. A legislative bill that does not
obtain the required parliamentary majority does not become a valid legal
rule at all. In the transnational realm, unlike in the domestic realm, we
are confronted not only with the relations between legal rules within one
system. We are additionally confronted with the limitations and cross-
references existing between, not within legal orders. In response, tertiary
rules operate between legal orders: they extend the validity that a rule in a
foreign legal order already has into another legal order where it does not
have that validity.
This focus on foreign normativity distinguishes tertiary rules from a
whole number of techniques that respond to the existence of compet-
ing normativities through self-restraint. The presumption against
extraterritoriality is one of many examples. According to this doctrine,
courts should choose an interpretation of statutes that confines its
scope of application to the home state’s own territory. Such techniques
are not tertiary rules, however. They determine the scope of applica-
tion of a legal order’s own rules and are, as such, secondary rules,
insofar as they are directed at adjudicators or other norm interpreters.
The restriction of a rule’s scope of application is an ordinary process
within domestic law; it does not change its nature when it happens in
response to normative claims from another legal order any more than
it does when it happens in response to other normative claims. Tertiary
rules do something different: they provide normative space to foreign
legal rules.
Unlike secondary norms, tertiary rules do not provide requirements
for the change of rules and institutions of foreign orders, nor do they
provide specific rules on adjudication. The courts and rules of legal order
B never derive their validity exclusively from legal order A. Instead,
tertiary norms deal with the recognition and application of foreign insti-
tutions and rules that are already valid under foreign law. Rules of Syrian
marriage law are valid, within Syrian law, regardless of whether they are
designated by a German conflicts rule or not. This is why it would be
misleading to say that tertiary rules allocate authority. The German
conflicts rule does not create the validity of the rule per se; all it does is
extend that validity and bindingness into German law. The question for
tertiary rules is not whether a law is binding or valid in the abstract – that

16.4.2 Legal Nature

Second, in accordance with the positivist aim of this approach,
I understand tertiary rules as legal rules. The designation of normative
spaces is an operation of law, and tertiary rules are part of the legal
system of A. This means that choice-of-law rules are tertiary rules, as are
rules on the recognition of foreign judgements. By contrast, diplomatic
negotiations are not,34 nor are ideas about inter-institutional dialogue,
compromise and so on and so forth. Such processes have an existence of
course, and they are also often legitimate, though not unsuspicious.35 But
they have no space within a positivistic theory of law that aims at
determining normativity, not factual actions that are taken.
I can see two objections to this postulate. The ﬁrst is that it would be
unduly restrictive to exclude non-legal mechanisms. Functionally, legal
and non-legal mechanisms both operate towards similar ends. Indeed,
some mechanisms are not easily placed within one or the other category.
Comity, for example, is often placed somewhere between law and polit-
ics – ‘neither a matter of absolute obligation, on the one hand, nor of
mere courtesy and good will, upon the other’, to use the US Supreme
Court’s famous deﬁnition.36 But what matters here is not function but
mode. There are many ways in which legal claims can be negotiated
between legal orders, just as there are many ways, legal and non-legal, to

34
This does not deny that certain moves of diplomacy can be reconceptualized as conflict-
of-laws moves: K. Knop and A. Riles, ‘Space, Time and Historical Injustice: A Feminist
Conflict-of-Laws Approach to the “Comfort Women” Settlement’ (2016) 102 Cornell Law
Review 853–928, at 885ff.
35
See K. Knop, R. Michaels and A. Riles, ‘From Multiculturalism to Technique: Feminism,
Culture, and the Conflict of Laws Style’ (2012) 64 Stanford Law Review 589–656, at
648–52.
36
Hilton v. Guyot, 159 U.S. 113, 143 (1895).

16.4.3 Horizontal Nature

So far, tertiary rules are not signiﬁcantly different from secondary rules.
What sets them apart, what is in fact their most important characteristic,
is their horizontal nature. Tertiary rules are part of one legal order that is
not hierarchically superior to the legal order whose normative space is

37
See R. Michaels, ‘Post-critical Private International Law: From Politics to Technique’, in
H. Muir Watt and D. P. Fernández Arroyo (eds), Private International Law and Global
Governance (Oxford University Press, 2014), pp. 54–69, at pp. 54, 57–8.
38
A. Marmor, Positive Law and Objective Values (Oxford University Press, 2001).

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  
designated. If English law designates the normative space of Moroccan
law, it does so in a horizontal way. English law is not superior to
Moroccan law, and yet designates the latter’s normative space.
It is useful, ﬁrst, to distinguish tertiary rules from two other types of
rules that are not horizontal in nature. The ﬁrst of these are vertical
priority rules based on hierarchy within one legal system. The supremacy
clause of the US Constitution, for example, creates, within the US legal
system, a hierarchy between federal and state law. In this hierarchy,
state law is valid only insofar as it does not exceed the normative space
of the laws of the individual states (they are valid insofar they do not
contradict federal law). Within the system of US law, the supremacy
clause is a secondary rule, just like a rule that designates the later-in-time
rule to trump the former-in-time, or the special rule to trump the
general rule.
The other type are rules that exist in a legal system that is hierarchic-
ally superior to both legal orders between which it mediates. In this sense,
public international law allocates jurisdictional authority among states.
And in this sense, EU private international law rules allocate authority
between the laws of France and Germany. These EU rules are choice-of-
law rules, but although the relation between the laws of France and
Germany may be horizontal, the relation between EU law and these
two legal orders is not.
In several ways vertical priority rules look like tertiary rules:
they designate normative spaces, and they act inter-systemically.
However, they do not operate in a horizontal way, and this makes
the difference. A tertiary hierarchy rule is uniform for all affected
legal systems. By contrast, and this is crucial, tertiary rules are not
uniform for all affected legal system. Instead, each legal system has its
own tertiary rules, and because there is no hierarchy between the
affected legal systems, all of them coexist. English law has rules
designating the normative space of rules from Moroccan law, just as
Moroccan law has rules designating the normative space of rules from
English law.
As a consequence, tertiary rules are reciprocal. However, these rules
are not necessarily symmetrical. The way in which English law designates
the normative space of Moroccan law is independent from the way in
which Moroccan law designates normative space for English law.
A fortiori, the normative space given to Moroccan law by English law
may be different from the normative space given to English law by
Moroccan law.

16.4.4 Relationality
All of this brings about the possibility that conflicts – or, put more
neutrally, disagreements about the place of the border between legal
systems – may exist. Such conflicts are a problem of theories of law that
are not plural in nature. One legal system cannot be a system, arguably, if
it does not provide mechanisms with which conflicts are resolved.
Indeed, most legal systems provide secondary rules to resolve such
conflicts if they occur within one system. Tertiary rules make it possible
to account for the fact that, as between legal systems, conflicts can
continue to exist. Thus, it may be possible that a certain conduct is

39
See R. Michaels, ‘A Symmetry of Asymmetries? A Private-International-Law
Reconstruction of Lindahl’s Work on Boundaries’ (2019) 29 Duke Journal of
Comparative and International Law 405–22, at 419.
40
Cf. H. Kelsen, ‘Observations’ (1957) 447 Annuaire de l’Institut de droit international, II,
115; republished in C. Leben (ed.), Hans Kelsen - Écrits français de droit international
(PUF, 2001), p. 309.

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  
governed by English law from the perspective of English law, and at the
same time governed by Moroccan law from the perspective of Moroccan
law. This means, however, that there no longer is an independent
position from which to determine whether some rules do or do not
count as valid and applicable law. Instead, there are separate legal
systems, each of which determines what counts as law for itself (through
a rule of internal recognition) and for other orders (through a rule of
external recognition). The normative space of each legal system differs
depending on the legal system from which it is designated.
The biggest challenge then from tertiary rules – the main reason why
they are so hard to conceptualize from the perspective of traditional legal
theory – is their relationality.41 What is meant by relationality is this: the
tertiary rules of English law designate normative spaces of foreign laws
only relative to English law itself. English law cannot designate the
normative space of Moroccan law with binding force for any order other
than English law. It can certainly not bind Moroccan law: if a rule of
Moroccan law is held to be inapplicable by a court in London, this does
not mean that it is inapplicable from the perspective of Moroccan law.
Nor can English law bind a third legal system, for example Japanese law
with regard to Japan’s own designation of the normative space of
Moroccan law. If a rule of Moroccan law is held to be inapplicable by a
court in London, Japan remains free to hold the rule applicable in
relation to Japan.
On the ﬂipside, a legal order cannot designate its own normative space
with binding force for any other legal order. Certainly, it would be
unusual for a court in Morocco to consider a rule of English law
applicable even though an English court would not apply it. But it would
be perfectly possible. For example, take a case in which Moroccan law
designates the law of nationality to be the applicable law, whereas English
law designates the law of the domicile to be applicable. In that case,
arguably, Moroccan law would limit the normative space of its own legal
order so that it would not include an Englishman domiciled in Morocco.
Nonetheless, an English court would be free to apply Moroccan law to
this person regardless.42
This relationality and relativity of a concept of law are necessary
consequences of global legal pluralism. We no longer have an
Archimedean point from which we can determine whether something

41
See already Michaels, ‘Law and Recognition’.
42
The English court would indeed do so, provided it did not apply the doctrine of renvoi.

16.5 Examples of Tertiary Rules

All of this has been quite abstract. Some examples will hopefully both
demonstrate that tertiary rules actually exist and will clarify the abstract
concept. That most of these come from the discipline of private inter-
national law should not be surprising: private international law is the
discipline speciﬁcally focused on cross-border normativity. But no claim
is made that all tertiary rules belong to private international law.

16.5.1 External Recognition

The ﬁrst and arguably most important tertiary rule is the rule of external
recognition.43 Under this rule, English law recognizes Moroccan law as a
legal order. This means that legal order A is willing to designate a positive
normative space to legal order B, without yet determining how far this
space extends. The clearest example exists in public international law: if
the United Kingdom recognizes Palestine as a state, it thereby also
expresses a willingness to recognize, as to an as of yet undeﬁned extent,
Palestine’s laws as having a normative space. But external recognition
goes to laws and legal orders, not to sovereignty. It can therefore in
theory also designate normative space for non-state law.
The rule of external recognition exists in partial analogy to Hart’s rule
of recognition, but there are important differences. First, Hart’s rule of
recognition determines binding force of law within one system;
I therefore call it a rule of internal recognition. The rule of external

43
This is discussed in more detail in Michaels, ‘Law and Recognition’.

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  
recognition, by contrast, determines the binding force of another legal
system. It is therefore properly called a rule of external recognition. That
external recognition cannot be universal, as was seen before. An Italian
judge can recognize Islamic law as law with effect only for Italian law, not
in general. On the other side, the rule of internal recognition is also
relative in this way, as Hart himself recognized. The rule of recognition of
English law designates English law as binding (as law) only with force for
the English.
Second, although both rules of internal and of external recognition
create the possibility of normative spaces, they do so in different ways.
The rule of internal recognition creates lawmaking power – without it,
the recognized institutions would have no lawmaking power at all. The
rule of external recognition, by contrast, does not create lawmaking
power. The lawmaking power of a Palestinian legislator does not depend
on recognition by English law. What does depend on that recognition is
the normative space of resulting law, with regard to English law.
Third, whereas there is debate over whether the rule of internal
recognition is a legal rule or a social fact, the rule of external recognition,
as understood here, is undoubtedly a legal rule. The recognition of
Moroccan law for English law is an operation of English law. That
operation may of course be brought about by factual acts, like a declar-
ation of recognition by a head of state. But that does not distinguish it
from other operations: most legal operations are brought about by a
factual act. If a pronouncement by the head of state of legal order A can
bring about the potential bindingness of laws and decisions of legal order
B for legal order A, then this is not a social fact but a consequence of the
rules of legal order B.
Fourth, whereas the rule of internal recognition is often discussed but
rarely practically relevant, the rule of external recognition is actually
important. The rule of internal recognition is largely irrelevant because
the operation of legal orders depends largely on the self-reinforcing day-
to-day operations of the law, based on the mutual and tacit, though rarely
effectively expressed or doubted, assumption of a valid recognition. If, for
example, some citizens in the southern states of the United States, or the
so-called Reichsbürger in Germany, refuse to recognize the authority of
their own governments, this is irrelevant not merely because they are
unjustiﬁed in their refusal, but also (mainly) because their recognition is
relatively unimportant. The rule of internal recognition is rarely ques-
tioned. By contrast, the recognition of foreign law as law is frequently
relevant. This is not only the familiar question of illegitimate

16.5.2 Recognition of Foreign Acts, Records and Judicial Proceedings

Just as Hart’s rule of internal recognition alone is not sufficient for the
functioning of a legal system, so the rule of external recognition alone is
not sufficient to deal with cross-normativity as between normative
orders. Another important set of tertiary rules concerns the recognition
not of legal orders at large, but instead of individual products of other
legal orders.
Such recognition is often required in federal systems. The US
Constitution, in its Article IV Section 1 First Sentence, requires that
‘Full Faith and Credit shall be given in each State to the public Acts,
Records, and judicial Proceedings of every other State’. In a parallel way,
EU law requires its member states to recognize a number of acts of other
member states, so much so that one speaks of a principle of mutual
recognition within EU law.44 These rules are not, however, tertiary rules
in the sense in which I speak of them here. Their root is not decentralized
within each legal order itself (see characteristic 1 in Section 16.4.1). They
emerge from a superior system of law, which can, due to its (presumed)
hierarchical superiority, allocate normative spaces with effect on all
affected states alike. They are vertical hierarchy rules.
For tertiary rules, the validity of products of Moroccan law for English
law is in principle dependent on two factors. The first is internal to
Moroccan law and depends on Morocco’s secondary rules: was the act
produced by the appropriate authorities and within the proper compe-
tence? The second factor, however, is external to Moroccan law and
depends instead on the tertiary rules of English law: does English law
recognize the products of Moroccan law as valid?
Take, for example, my German passport that I present at the border
entering the United States. The USA will not admit me to its territory
unless my passport is valid. That validity is determined not by US law but
by German law. It is true that the acceptance of my passport as valid

44
See C. Jannsens, The Principle of Mutual Recognition in EU Law (Oxford University
Press, 2013); K. Lenaerts, ‘The Principle of Mutual Recognition in the Area of Freedom,
Security and Justice’, The Fourth Annual Sir Jeremy Lever Lecture (All Souls College,
University of Oxford 2015), www.law.ox.ac.uk/sites/ﬁles/oxlaw/the_principle_of_
mutual_recognition_in_the_area_of_freedom_judge_lenaerts.pdf .

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  
under these conditions is a function of US law (in addition to inter-
national law, which I will ignore for purposes of the argument here).45
But it would be odd to claim that the United States, through its secondary
rules, authorized the German authorities to create valid passports. The
United States does have secondary rules for its own passports, which
designate both the competent authorities to create passports and the
processes through which this production takes place. It does not apply
those rules to German passports, however.
The passport’s validity under German law alone does not, however,
make it binding on US authorities. Rather, whether the passport is
recognized – and whether additional requirements must be met – is a
function of a tertiary rule of US law. It is that rule that designates
normative force to the passport vis-à-vis US authorities.
Documents may serve as the clearest example of recognition, but they
are not the only one. Another example concerns the recognition of
administrative acts. There is a question, for example, whether country
A should, in regulating the conduct of corporation X, take into account
that corporation X received a permit for its conduct from country
B. Under the principle of mutual recognition, there is a wide-ranging
duty to recognize such permits, but that duty, as emerging from a
hierarchically superior order, does not count as a tertiary rule. Such
recognition is the object of tertiary rules, however, insofar it emerges
from rules of the recognizing legal order itself.
Another example can be found in the recognition of foreign arrest
warrants. Take the European arrest warrant.46 This warrant is issued not
by a European authority but instead by one member state; it is, however,
with few exceptions, recognized and enforced by other member states.
Here, recognition does not go to a private privilege that an individual or a
corporation wants to carry with them across boundaries, but instead
expands the normative space of a foreign warrant beyond the territorial
borders that would normally limit a sovereign’s executive jurisdiction.
Again, insofar as the duty emerges from EU law, it follows from a vertical

45
International law obliges states to recognize foreign passports, but whether they do this
remains a function of their own sovereign decision. For the interplay, see, R. A. C. Alton
and J. R. Struble, ‘The Nature of a Passport at the Intersection of Customary International
Law and American Judicial Practice’ (2010) 16 Annual Survey of International and
Comparative Law 9–18.
46
See V. Mitsilegas, ‘Judicial Dialogue, Legal Pluralism and Mutual Trust in Europe’s Area
of Criminal Justice’ (forthcoming) European Law Review.

16.5.3 Application of Foreign Law

The most important tertiary rules are, arguably, choice-of-law rules that
designate the application of foreign law, mainly within the context of
private international law. Foreign law is applied as a matter of course
today, despite the considerable theoretical difficulty to explain such
application within traditional legal theory. Indeed, the absence of private
international law from most theories of law, including those of (public)
international law and of private law, may be a consequence of such
difficulties.
The misnomer ‘choice of law’, frequent in the common law world, is
already a sign for these difficulties. The applicable law is not determined
by a discretionary choice of the judge. Instead, the application of foreign
law is an operation of the law itself, in this case the private international
law rules of the forum. Save for a few exceptions, most prominently the
conflict-of-laws regime of the European Union, these rules are not
hierarchically superior. Instead, they are horizontal rules in the sense
given above.

16.6 Conclusion
In this chapter I have argued that some rules that exist in legal systems
cannot be understood as either primary or secondary rules but constitute
a different type of rules, called tertiary rules. These are the rules with
which a legal system organizes its own relation to other legal systems and
also designates those other legal systems’ normative space with regard to
itself. Those rules have proven to be more complex than primary and
secondary rules, and incompatible with certain postulates of traditional
theories of legal systems that emphasize internal coherence and consist-
ency. They are the consequence of a plural world in which law is not one
but many.
Recognizing tertiary rules is thus necessary for a pluralistic theory of
laws. However, the recognition of tertiary rules is not dependent on the
recognition of such a theory. Tertiary rules are an actually observable

A Reconstruction of Transnational Legal Pluralism

and Law’s Foundations
     .       

An outpouring of writings on global or transnational legal pluralism has

occurred in the past two decades. Despite its apparent popularity, how-
ever, it suffers from deep conceptual problems. After reviewing two
decades of this proliferating literature, jurisprudent William Twining
remarked, ‘I have come away feeling that it is little better than a morass’.1
This chapter is an attempt to clear up the morass. Three complicating
factors bear mention at the outset. First, ‘pluralism’ is a capacious term
that simply means two or more and can be applied to law in a multitude
of ways. Second, ‘law’ is a contested notion that has been conceived of in
numerous ways. Third, legal pluralism has been invoked in a variety of
fields with very different orientations and objectives, including legal
anthropology, legal sociology, postcolonial studies, law and development,
human rights, comparative law, international law, transnational law and
jurisprudence. The confluence of these factors has resulted in a tangled
conceptual mess.
With these preliminary comments in mind, I address a series of central
issues bearing on global/transnational legal pluralism (labels used inter-
changeably). The first several parts of this chapter critically examine
certain prominent positions in global legal pluralism, showing why they
are problematic, after which I construct an alternative account that
avoids these problems. First, I demonstrate that, contrary to current
accounts, global legal pluralism is not continuous with earlier versions
of (postcolonial and sociological) legal pluralism; these are three com-
pletely distinct paradigms. Next, I expose the flaw of overinclusiveness
that has plagued theoretical conceptions of legal pluralism from the

For their helpful critical comments on earlier drafts, I thank Nico Krisch, Hanna
Birkenkotter, Sarah Nouwen and Ralf Michaels.
1
W. Twining, ‘Normative and Legal Pluralism: A Global Perspective’ (2010) 20 Duke
Journal of Comparative and International Law 473–518, at 487.



17.1 Three Distinct Paradigms of Legal Pluralism

It is common to characterize attention to legal pluralism as three succes-
sive waves building on earlier work: ﬁrst came attention by anthropolo-
gists to postcolonial legal pluralism, then attention by sociologists to legal
pluralism in every society, then attention by jurists to global/trans-
national legal pluralism. Global legal pluralist Ralf Michaels observed:
Legal pluralism, long a special interest within the specialist discipline of
legal anthropology, has recently moved into the mainstream of legal
discourse. The most likely reason is globalization. Many of the challenges
that globalization poses to traditional legal thought closely resemble those
formulated earlier by legal pluralists. The irreducible plurality of legal
orders in the world, the coexistence of domestic state law with other legal
orders, the absence of a hierarchically superior position transcending the
differences – all of these topics of legal pluralism reappear on the global
sphere.2

This narrative of continuity is reinforced by frequent references in the

third approach to major theorists and theories within the second
approach, prominently including John Grifﬁths (anti-legal centralism,
strong versus weak legal pluralism), Eugen Ehrlich (living law of social
associations) and Sally Falk Moore (semi-autonomous social ﬁeld).

2
R. Michaels, ‘Global Legal Pluralism’ (2009) 5 Annual Review of Law and Social Sciences
243–62, at 244.

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   
This narrative, however, is misleading. Other than being about ‘law’
(though in different senses) and shining the spotlight on ‘pluralism’
(albeit in different senses), these three approaches have little in common.
John Griffiths, the leading proponent of the second approach, pointedly
rejected the first approach. He labelled postcolonial legal pluralism ‘weak’
because it involved recognition by the state of customary law, which
Griffiths construed as merely reinforcing legal centralism. ‘“Legal plural-
ism” in the weak [postcolonial] sense has little to do with the concept of
legal pluralism which is the subject of this article’,3 he declared, sharply
distancing his sociological conception from studies of postcolonial law.
Griffiths’ essay centres on ‘strong’ legal pluralism – ‘an empirical state
of affairs, namely the coexistence within a social group of legal orders
which do not belong to a single system’.4 This legal pluralism is based on
a sociological concept of law, which encompasses the normative ordering
of social associations and institutionalized rule systems generally (more
on this shortly). As Sally Engle Merry noted three decades ago in her
astute overview of legal pluralism, which boosted its academic profile,
these two contexts of legal pluralism ‘make odd companions’ in that they
have different targets and ‘they come out of different scholarly trad-
itions’.5 In Kuhnian terms, this is a revolutionary paradigm shift, not a
cumulative building on previous insights.
Comparative, international and transnational legal scholars who came
to legal pluralism changed the subject yet again, in multiple ways.
Contemporary global/transnational legal pluralism is the product mainly
of jurists who focus on public and private systems of law and regulation
between and across states, giving rise to multiple coexisting regulatory
forms with potential application in various contexts. Constitutional plur-
alism of the European Union involves the pluralism of coexisting, inter-
twined official systems of national and EU law; international legal
pluralism (or fragmentation) involves a pluralism of different subject
matter regimes and tribunals within international law. None of this
resembles postcolonial legal pluralism or sociological legal pluralism.
The characteristic feature of postcolonial legal pluralism is the coexist-
ence of bodies of law with profoundly different norms and processes –
mainly state law, and customary and religious law – operating

3
J. Grifﬁths, ‘What Is Legal Pluralism?’ (1986) 24 Journal of Legal Pluralism 1–56, at 8.
4
Ibid., 8.
5
S. E. Merry, ‘Legal Pluralism’ (1988) 22 Law & Society Review 869–96, at 874.

Many manifestations of customary law involve the application of infor-

mal (unwritten) legal norms by chiefs or village elders, with the partici-
pation of members of the community, oriented towards resolving the
matter, taking into consideration not just the individuals and specific
incident involved, but also broader social relations. In contrast, state law
involves transplanted, formal legal norms applied by legal officials within
legal institutions utilizing technical legal terminology and processes.
What stands out about postcolonial legal pluralism is not the multipli-
city of law per se, but rather the stark contrasts and sheer diversity
between the coexisting bodies of formal and informal law derived from
different traditions involving fundamentally different world views (in
certain respects incompatible), reflecting highly fragmented societies
(ethnic, religious, urban/rural, educated/illiterate, commercial develop-
ers/subsistence farmers, etc.). Compare this with discussions in the
global/transnational legal pluralism literature of the interaction between
EU law and national law, the TRIPS (Trade-Related Aspects of
Intellectual Property Rights) agreement, lex mercatoria, human rights,
World Trade Organization (WTO) law and the Appellate Body, Codex
Alimentarius, UNIDROIT, lex sportiva and so forth. What stands out
about the latter group is the burgeoning multiplicity of transnational legal
and regulatory regimes, many tied to the expansion of global capitalism.
While these norms and bodies of law may conflict in various ways, they
are virtually all Western derived and they involve formal written regula-
tory regimes and tribunals operating in standard ways familiar to jurists.

6
L. Chirayath, C. Sage, and M. Woolcock, Customary Law and Policy Reform: Engaging
with the Plurality of Justice Systems (World Bank Legal Department Paper, 2005), p. 3.

Grifﬁths believed that (strong) legal pluralism follows directly from a

sociological conception of law, and thus (strong) legal pluralism provides
a basis for the sociology of law.
Among global/transnational legal pluralists, Gunther Teubner early on
constructed legal pluralism in terms of a science of society (taking off
from Grifﬁths and Sally Falk Moore), applying his autopoietic theory of
law as a communicative system to transnational law,8 advocating that
‘legal pluralism needs to shift emphasis and focus on the fragmentation
of social reproduction in a multiplicity of closed discourses’.9 A second

7
J. Grifﬁths, ‘The Division of Labor in Social Control’, in D. Black (ed.), Toward a General
Theory of Social Control (Academic Press, 1984), pp. 37–70, at p. 39 (italics added).
8
G. Teubner, ‘Two Faces of Janus: Rethinking Legal Pluralism’ (1991) 13 Cardozo Law
Review 1443–62.
9
Ibid., 1457.

17.2 The Overinclusiveness Flaw

In her 1988 overview of legal pluralism, Sally Merry ﬂagged a conceptual
ﬂaw of sociological legal pluralism that has reappeared in global legal
pluralism in the writings of Paul Berman. Merry remarked, ‘Where do we

10
B. de Sousa Santos, ‘Law: A Map of Misreading – Toward a Postmodern Conception of
Law’ (1987) 14 Journal of Law and Society 279–302; B. de Sousa Santos, Toward a New
Common Sense: Law, Science and Politics in the Paradigmatic Transition (Routledge,
1995).
11
See Chapter 1.
12
See W. Twining, General Jurisprudence: Understanding Law from a Global Perspective
(Cambridge University Press, 2009).
13
Twining, ‘Normative and Legal Pluralism’, 512–13.
14
Twining denied ‘any strong claims to continuity’, though he observed that global legal
pluralism exhibited a similar opposition to state centrism, recognition of non-state law,
taking religion seriously and more of an empirical orientation. Ibid., 515.

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   
stop speaking of law and find ourselves simply describing social life? Is it
useful to call all these forms of ordering law? I find that once legal
centralism has been vanquished, calling all forms of ordering that are
not state law by the term law confounds the analysis.’15 The sociological
conception of legal pluralism construes the normative ordering of social
associations (like the family) and institutionalized rule systems (like
corporations and universities) as forms of law. In Section 17.3,
I explain the source of this problem and why it cannot be resolved, but
here I flag its appearance in global legal pluralism.
Paul Berman, a prolific contemporary theorist of global legal plural-
ism, asserts that there is no need to define law. Yet, in effect, he presup-
poses a conception of law tied to social associations, but without
explicitly articulating it.16 Berman identifies law with norm-generating
communities: ‘From religious institutions, to industry standard-setting
bodies to not-for-profit accreditation entities to arbitral panels to univer-
sity tenure committees to codes promulgated within ethnic enclaves to
self-regulation regimes in semi-autonomous communities, the sites of
non-state lawmaking are truly everywhere.’17 (His reference to self-
regulation of semi-autonomous communities incorporates Sally Falk
Moore’s analysis, which I take up in Section 17.3) Berman has also
identified law within the family18 and ‘in day-to-day human encounters
such as interacting with strangers on a public street, waiting in lines, and
communicating with subordinates or superiors’.19 These examples reveal
that for Berman virtually all normative ordering is law. As a consequence,
law is a fuzzy notion and legal pluralism is extraordinarily pervasive.
In a recently published 1,000-plus-page Oxford Handbook on Global
Legal Pluralism (2020) that Berman edited, he makes a revealing state-
ment. After acknowledging that global legal pluralism is not really global

15
Merry, ‘Legal Pluralism’, 878–9.
16
By not making his concept of law explicit, Berman shields it from critical scrutiny and
denies the need to justify it. Berman has cited my position in support of his, but his
position is not mine. He applies an implicit concept of law, while refusing to specify what
it is. My position is that no abstract concept or deﬁnition of law comes into play in the
analysis, implicitly or explicitly; instead, I utilize collective identiﬁcation of law in the
social arena at issue.
17
P. Berman, Global Legal Pluralism: A Jurisprudence of Law beyond Borders (Cambridge
University Press, 2012), pp. 41–2.
18
P. Berman, ‘The New Legal Pluralism’ (2009) 5 Annual Review of Law and Social Science
225–42, at 236.
19
P. S. Berman, ‘The Globalization of Jurisdiction’ (2002) 151 University of Pennsylvania
Law Review 311–545, at 505.

17.3 The Problem with Sociological and Jurisprudential

Concepts of Law
After two decades of forcefully promoting legal pluralism, John Grifﬁths
acknowledged that sociological legal pluralism does not work:
In the intervening years, further reﬂection on the concept of law has led
me to the conclusion that the word ‘law’ could be better abandoned
altogether for the purposes of theory formation in sociology of law [. . .]
It also follows from the above considerations that the expression ‘legal
pluralism’ can and should be reconceptualized as ‘normative pluralism’ or
‘pluralism in social control’.21

20
P. S. Berman, ‘Understanding Global Legal Pluralism: From Local to Global, from
Descriptive to Normative’, in P. S. Berman (ed.), The Oxford Handbook of Global Legal
Pluralism (Oxford University Press, 2020), p. 62, https://papers.ssrn.com/sol3/papers
.cfm?abstract_id=3715553.
21
J. Griffiths, ‘The Idea of Sociology of Law and its Relation to Law and to Sociology’ (2006)
8 Current Legal Issues 49–68, at 63–4. For helping him come to this realization, Griffiths
cites a Dutch article by G. van den Bergh, and two of my articles, ‘An Analytical Map of
Social Scientific Approaches to the Concept of Law’ (1995) 15 Oxford Journal of Legal
Studies 501–36, and ‘The Folly of the Social Scientific Concept of Legal Pluralism’ (1993)
20 Journal of Law and Society 192–217.

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   
This is a stunning reversal for Griffiths. To renounce a doctrine that
brought him academic renown is a testament to his inestimable intellec-
tual integrity. What doomed sociological legal pluralism is the problem
of overinclusiveness.
This insurmountable problem is detailed in other work,22 so here
I present a drastically abbreviated account. Almost all sociological as well
as jurisprudential concepts of law involve specifications of function and
form (structure). (This is true of all efforts to define social artefacts; for
example, a standard definition of a ‘chair’ is a seat (function) with legs
and a back (form).) While numerous variations exist, conceptions of law
fall into two basic streams. The first stream encompasses the normative
ordering of social associations (focused on law’s function) – put forth by
Griffiths, who melded Eugen Ehrlich’s living law with Sally Falk Moore’s
semi-autonomous social field. The second stream encompasses institu-
tionalized rule systems (a combination of function and form) – put forth
by Marc Galanter, who drew on H. L. A. Hart’s union of primary and
secondary rules.
The problem with identifying law as the normative ordering of social
institutions (the first stream), as Eugen Ehrlich did, including clubs,
community organizationsand business partnerships, is that a variety of
social mechanisms – customs, morals, habits, reciprocity, etc. – are
involved in the ordering of social associations. Defining law in terms of
the ordering of associations inevitably encompasses all of this. Jurists at
the time rejected his concept of law for this reason. Legal philosopher
Morris Cohen objected: ‘Ehrlich’s book suffers from the fact that it draws
no clear account of what he means by law and how he distinguishes it
from customs and morals.’23 John Griffiths concluded that Ehrlich’s
‘theory therefore lacks an independent criterion of “the legal”. He seems
to take it as obvious which sorts of rules of conduct are legal in charac-
ter.’24 Griffiths turned to Sally Moore’s semi-autonomous social field
(SASF), declaring: ‘law is the self-regulation of a semi-autonomous social
field’.25 However, Moore herself refused to use the label ‘law’ (she
proposed ‘reglementation’) owing to the same objection: an array of

22
See B. Z. Tamanaha, Legal Pluralism Explained: History, Theory, Consequences (Oxford
University Press, 2021).
23
M. R. Cohen, ‘Recent Philosophical Literature: Legal Literature in French, German, and
Italian’ (1916) 26 International Journal of Ethics 528–46, at 537.
24
Grifﬁths, ‘What Is Legal Pluralism?’, 27.
25
Ibid., 38.

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  . 
mechanisms support the rule-bound ordering within social groups that
her SASF centres on, including moral norms, reciprocity, potential loss of
future benefits and social ostracism. Griffiths understood that his con-
ception of law encompasses a broad continuum of normative ordering,
from informal to institutionalized, which led him to conclude that ‘all
social control is more or less legal’.26 This position results in the assertion
(per Berman) that law encompasses people queuing at a bar or bank.
The conception of law as institutionalized rule systems (the second
stream) is an abstract reduction of state legal systems, presenting law as
an institutionalized rule system (form) that enacts and enforces norms
for social ordering (function). An influential early work on legal plural-
ism, Marc Galanter’s ‘Justice in Many Rooms: Courts, Private Ordering,
and Indigenous Law’ (1981),27 builds on H. L. A. Hart’s account, defining
law in terms of ‘the organization and differentiation of norms and
sanctions. The differentiation is the introduction of a second layer of
control – or norms about the application of norms.’28 Since society is
filled with institutionalized norm-enforcement systems, it follows that
law is ‘found in a variety of institutional settings – in universities, sports
leagues, housing developments, hospitals, etc.’.29 A century ago, Italian
jurist Santi Romano articulated a theory of legal pluralism that takes this
line of thinking to its utmost extension, asserting that every institution is
a legal order and every legal order is an institution.30 Legal orders, in this
view, include states, municipalities, corporations, factories, political
parties, a prison, a church, a family, a criminal gang and much more.31
In a recent essay acknowledging legal pluralism, legal philosopher Joseph
Raz likewise identifies law in ‘the rules and regulations governing the
activities of voluntary associations, or those of legally recognized corpor-
ations, and more, including many very transient phenomena, like neigh-
bourhood gangs’.32 The legal institutions he has in mind, Raz elaborates,
‘are themselves rule-governed, ultimately governed by practice-based

26
Ibid., 39 n. 3.
27
M. Galanter, ‘Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law’
(1981) 19 Journal of Legal Pluralism 1–48, at 2.
28
Ibid., 19.
29
Ibid., 17–18.
30
S. Romano, The Legal Order (Routledge 2017).
31
For a concise description of Romano’s account of law, see L. Vinx, ‘Santi-Romano against
the State?’ (2018) 11 Ethics and Global Politics 25–36.
32
J. Raz, ‘Why the State?’, in N. Roughan and A. Halpin (eds), In Pursuit of Pluralist
Jurisprudence (Cambridge University Press 2017) pp. 136–62, at p. 138.

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   
rules that determine if not all at least the most important aspects of their
constitution, powers, and mode of operation’.33 ‘In this sense’, he con-
tinues, ‘both the rules of the Roman Republic and those of the University
of Wales (disbanded 2011), just as the rules of the United States and of
Columbia University, are legal systems.’34
At bottom, these two streams of conceptions of law involve exercises in
relabeling. The first stream relabels the normative ordering of social
associations as legal ordering; the second stream relabels institutionalized
rule systems as law. Through this relabeling, both approaches immedi-
ately produce an immense profusion of law in society. However, their
conflation of law with broader social phenomena is theoretically unjusti-
fied and results in confusion. Rather than assert that all forms of social
control are more or less legal or that all institutionalized rule systems are
law, it makes far more sense to assert that multiple forms of social control
exist, some of which are law, and that innumerable institutionalized rule
systems exist, some of which of are law.
The most straightforward way to identify law from among the multi-
tude of normative orderings and institutionalized rule systems in society
is via conventional recognition of what is ‘law’ (droit, loi, lex, ius, recht,
gesetz, diritto, prawo, horitsu, fa, etc.) – which I elaborate further in
Section 17.7. The legal systems of France and Massachusetts (etc.) are
conventionally perceived as law, but not the internal rule systems of Saint
Laurent or Harvard (etc.), which are seen as rule systems specific to the
purposes of the organization. International law is law, not because it
satisfies abstract criteria of legality based on form, function or some other
basis (which no theorist has successfully formulated), but because it is
conventionally recognized as law by jurists, political leaders and the
public.35

17.4 The Ubiquity of Private Rule Systems and Regulatory Forms

Transnational legal pluralism scholars have emphasized the ubiquity of
private and hybrid regulatory systems operating on the transnational
level. Examples include the Court of Arbitration for Sport,36 Codex

33
Ibid., p. 142.
34
Ibid., p. 143 (emphasis added).
35
For a discussion showing the legal status of international law, see B. Z. Tamanaha,
A Realistic Theory of Law (Cambridge University Press 2017), chapter 6.
36
See Chapter 10.

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  . 
Alimentarius Commission on food standards, voluntary ‘soft law’ provi-
sions like corporate codes of conduct and UNIDROIT Principles of
International Commercial Contracts, International Organization for
Standardization and an increasing multitude more. The domestic level
has also witnessed a proliferation of private and hybrid bodies carrying
out legal functions, with the expansion of private arbitration, private
policing (gated communities, universities, sports venues, shopping malls,
etc.), private prisons (common in the USA) and private standard setting.
The underlying cause of the explosion of private and hybrid regulation
is plain: governments and public bodies lack the capacity to produce and
carry out the regulatory activities necessary to deal with countless trans-
actions and intercourse within society and across societies. It has long
been common for regulatory standards to be produced by private organ-
izations tied to non-proﬁt consumer associations or trade associations in
speciﬁc industries, which have the requisite expertise as well as an
interest in maintaining quality and safety standards (as well as creating
barriers to entry against potential new competitors). Domestic and trans-
national private standard setting are frequently connected. The American
National Standards Institute (ANSI), a private organization created in
1918, accredits standards produced by private standard-setting organiza-
tions (many of which have been adopted by state regulators) across a
broad swath of matters (electrical standards, chemical standards, public
health standards, and so forth); ANSI is a member of the International
Organization for Standardization as well as the International
Accreditation Forum, propagating American standards more broadly as
well as introducing externally produced standards into the USA.
In addition, private organizations have long established and enforced
their own rule systems on their employees and consumers and users of
their goods and services. Twitter and Facebook famously demonstrated
this power in the aftermath of the insurrection on the Capitol building
when they banned President Donald Trump from using their platforms
for repeated violations of their terms of service. Private companies can
also directly enforce state law. Google enforces the EU’s ‘right to be
forgotten law’, thus far rendering judgements on over 845,000 requests,
delisting 45 per cent of the links.37 As Galanter made clear four decades
ago, a far greater amount of rule enforcement affecting people’s lives
takes place within private institutionalized rule systems than through

37
See L. Kelion, ‘Google Wins Landmark Right to be Forgotten Case’, BBC News
(23 September 2019), www.bbc.com/news/technology-49808208.

17.5 The Separation of Theory and Practice

The question ‘What is law?’ is almost entirely a theoretical exercise.
Judges, lawyers and parties engaged in situations with multiple, coexist-
ing forms of law rarely take up this abstract theoretical inquiry. The
issues that typically arise in contexts of transnational legal pluralism
mainly include questions like these: which of the various forms of law
and regulation are relevant to the resolution of the dispute or problem at
hand, how much weight should attach to each, and how should conﬂicts
between them be resolved? These issues are resolved not by abstract
theoretical inquiries into the concept of law, but by resort to applicable
rules of legal relevance and validity, choice of law, conﬂicts of law and
other standard legal mechanisms and analyses that jurists commonly
utilize.
Transnational legal pluralist theorists engender confusion when they
cross over the line between theory and practice. Roger Cotterrell asserts
that lawyers dealing with transnational law need a theory of legal plural-
ism; after considering different concepts of law by a number of theorists,

17.6 Flaws of a Relational Concept of Law

Ralf Michaels recently articulated a novel concept of law (or laws)
grounded on pluralism as an intrinsic aspect of legal ordering, an account
that transnational pluralist scholars have begun to cite.40 To Hart’s
obligatory primary rules addressing social behaviour, and secondary rules
used by legal ofﬁcials to create and apply primary rules, Michaels adds
tertiary rules for engaging with external legal orders. Michaels summar-
izes his deﬁnition of law:
A concept of laws, appropriate for a situation of global legal pluralism,
must take these challenges [postcolonial customary and religious law]
seriously. It should accept the challenge that non-state law can be law.
It should reject, however, the claim that non-state law must be viewed as
law irrespective of recognition. Instead, it should generalize this

38
R. Cotterrell, ‘Do Lawyers Need a Theory of Legal Pluralism?’, in Roughan and Halpin
(eds), In Pursuit of Pluralist Jurisprudence, pp. 20–39.
39
P. S. Berman, ‘Jurisgenerative Constitutionalism: Procedural Principles for Managing
Global Legal Pluralism’ (2013) 20 Indiana Journal of Global Legal Studies 665–95, at
668–69.
40
See Chapter 16; R. Michaels, ‘Law and Recognition: Towards a Relational Concept of
Law’, in Roughan and Halpin (eds), In Pursuit of Pluralist Jurisprudence, pp. 90–115.

He emphasizes that external recognition by other legal orders is consti-

tutive of whether a given legal order is law: ‘Under this theory, translated
into legal theory, [external] recognition is constitutive for the identity of
law as law.’42 A given system is not a legal system absent external
recognition.
To justify adding tertiary rules Michaels draws an analogy to recogni-
tion by other states as the basis for nationhood status under international
law. He asserts that ‘effectively a legal system cannot operate vis-à-vis
other legal systems unless it is recognized by those other legal systems’.43
Thus, legal systems are ‘mutually constitutive’, each becoming law
through recognition by the other. This recognition is relative to the
interaction between any two systems (hence it is relational). ‘Something
can be a legal order vis-à-vis one other legal system, but not vis-à-vis
another legal system. The nature of a legal system exists in relation
to another legal system.’44 Since all existing state legal systems are exter-
nally recognized by other state legal systems via domestic conflicts of law
rules (which are tertiary rules), all state legal systems qualify as law in his
definition. For reasons I explain, however, his scheme heavily disadvan-
tages non-state law.
Michaels’ theory of law has three major problems relevant to legal
pluralism, which I articulate up front then illustrate with examples.
One problem is that a legal system can be highly effective within a
community regardless of whether any external legal system recognizes
it, and indeed even when its legal status is affirmatively denied by other

41
Michaels, ‘Law and Recognition’, pp. 107–8 (emphasis added). The reference to interface
norms is from N. Krisch, Beyond Constitutionalism: The Pluralist Structure of
Postnational Law (Oxford University Press, 2012); and the reference to linkage rules is
from D. von Daniels, The Concept of Law from a Transnational Perspective (Ashgate,
2010).
42
Michaels, ‘Law and Recognition’, p. 105.
43
Ibid., p. 106.
44
Ibid., p. 110.

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  . 
legal systems – which is a common occurrence in the history of legal
pluralism. Since the vast bulk of what legal systems typically address
relate to internal effectiveness, Michaels does not explain why a lack of
external effectiveness – which it can function without – justifies the
conclusion that an internally effective system is not law. A second prob-
lem is that a system can go from being not law until receiving external
recognition, then becoming law upon recognition, then not law when
recognition is withdrawn, then law again when recognition is restored
(and so on) – with its legal status dictated entirely at the whims and
interests of the external system (an example follows).
The third problem is a conceptual flaw within the relational theory
itself. If a necessary element to qualify as law is external recognition by
another legal system, as Michaels contends, then that in itself does not
necessitate tertiary rules within the system to establish relations with
others. As long as another legal system recognizes it, a given legal system
exists even if it does not recognize any other legal system on its part.
Since external recognition in his scheme is not conditioned upon recipro-
cal recognition, there is no logical basis in his theory for requiring tertiary
rules within a given system as a necessary feature of law. His account
requires only: (1) primary rules of content, (2) secondary rules of oper-
ation and (3) receiving external recognition. In Hart’s account, to sup-
plement his union of primary and secondary rules, he identified two
minimum conditions for the existence of a legal system: the populace
must generally obey the primary rules, and legal officials must accept the
secondary rules.45 Similarly, Michaels’ requirement of receiving external
recognition does not itself give rise to a third distinct body of rules, and
indeed it is not about rules at all. Instead, what his justification calls for is
another existence condition: an external legal system must recognize it as
law to be effective.
This conclusion reveals that his tertiary rules are neither necessary nor
sufficient to constitute law. Assume System A has primary, secondary
and tertiary rules – thus possessing the three features he identifies as
essential to law. However, if System B does not recognize A as a legal
system, it is not a legal system with respect to B. As Michaels put it,
‘System A can only determine whether and how it recognizes System
B and insofar be constitutive for System B. It cannot determine whether

45
Hart’s justifications for these two conditions were functionality and efficacy. If legal
officials do not accept the secondary rules the system cannot function, and if the populace
does not obey the primary rules it would be ineffective.

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   
and how System B recognizes System A.’46 So having tertiary rules (on
top of primary and secondary) is not sufﬁcient to constitute A as law with
respect to B. Now assume System A has primary and secondary rules, but
not tertiary rules – thus lacking what he identiﬁes as an essential feature
of law. If System B nonetheless recognizes A as a legal system, it does
count as law for B. So tertiary rules are not necessary to constitute law. It
turns out that tertiary rules, Michaels’ key addition to Hart’s concept of
law, are not actually essential to constituting law under his own
conceptual scheme.
The conceptual soundness of his theory of laws (positing pluralism
and interrelatedness as intrinsic) must be evaluated in terms of whether it
makes sense when applied to account for legal phenomena. However, his
theory construes law in counterintuitive ways. No system counts as law
in isolation or as a general matter because its legal status is constituted
only with respect to particular other legal systems that recognize it. It is
law in relation to Systems B, C, D, etc., which recognize it, but not law
with respect to Systems E, F, G, etc., which do not recognize it. Thus,
System A can be law and not law at the same moment (depending on
which relation one considers). Moreover, as we just saw, System A’s legal
status with respect to Systems B, C, and D, etc., can be turned on and off
at the sole discretion of each external system. Michaels extrapolates from
the correct proposition that System B alone has the power to determine
what counts as law for it (a direct implication of legal rules of validity),
but ratchets up the theoretical import of this proposition to be ‘consti-
tutive’ of A’s nature as law (an internal point about System B thereby
determines the legal nature of System A). This conceptual move
transforms a commonplace idea into a source of multiple puzzling
implications.47
The distorting lens his relational theory provides is evident through
application to actual situations of legal pluralism. Consider British treat-
ment of Aboriginal customary law. Upon arrival, they declared Australia
terra nullius, with no semblance of law or civil society, a blank legal slate,
enabling the colonial government and settlers to seize Aboriginal land

46
Michaels, ‘Law and Recognition’, p. 109.
47
A strange implication of this theory, which he acknowledges, is that a legal system cannot
exist unless another legal system exists that recognizes it, which itself is not a legal system
unless it is recognized by another existing legal system, etc. – thus involving an inﬁnite
regress. Michaels dismisses this as a problem for all theories of law, but conventionalist
theories based on social recognition do not face an inﬁnite regress.

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  . 
because no property rights existed.48 This stance conceptually erased the
reality that Aboriginal communities had lived for aeons, and continued
to live, in accordance with customary law on property rights, personal
injuries, marriage and so forth. In Mabo v. Queensland (1992), the
Australian court ﬁnally recognized that Aboriginal customary law indeed
conferred pre-existing property rights that must be respected.49
Aborigines had all along viewed and lived in accordance with their
customary law, but according to Michaels’ relational theory, Aboriginal
customary law was not law until external recognition by the Australian
legal system constituted it as law, putting its status as law entirely at the
leave of the state legal system.
Not only does this stance wholly discount the views and legal practices
of Aborigines, it twists the court’s inquiry into a logical pretzel. A court in
this position is inquiring whether customary law was (or is) a genuine
form of law. According to the court, the pre-existing legal status of
customary law provides the grounds for its decision, but according to
Michaels its legal status follows solely as a consequence of the decision
itself. Under his theory, it is not conceptually possible for Aboriginal law
to be law prior to recognition, so the court’s inquiry into whether it was
law (prior to the decision) is nonsensical.
In New Zealand, after a number of violent skirmishes, the British
entered the Treaty of Waitangi (1840) with powerful Maori chiefdoms,
acknowledging their right to rule in their home areas, and subsequent
statutes were enacted recognizing customary law. But this initial recog-
nition was withdrawn after the rapidly increasing settler population
became dominant. In an 1877 case, Wi Parata v. Bishop of Wellington,
Chief Justice Prendergast declared the Treaty of Waitangi a ‘simple
nullity’, ‘worthless’, because it had been signed by ‘barbarians without
any form of law or civil government’ incapable of entering a treaty with a
civilized nation.50 Furthermore, he concluded, the Native Rights Act of
1865 and Native Land Act of 1873, which recognized Maori customary
law property rights, were nullities because ‘no such body of law existed’,
and ‘a phrase in a statute cannot call what is non-existent in being’;

48
See Australian Reform Commission, ‘Recognition of Aboriginal Customary Laws (ALRC
Report 31)’ (1986) paras 39, 60, www.alrc.gov.au/publication/recognition-of-aboriginal-
customary-laws-alrc-report-31/.
49
Mabo v. Queensland [1992] HCA 23.
50
Wi Parata v. Bishop of Wellington (1877) 3 NZ Jur. (N.S.) S.C., language cited in J. Tate,
‘The Three Precedents of Wi Parata’ (2004) 10 Canterbury Law Review 273–308, at 293,
294 n. 92.

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   
subsequent statutes withdrew recognition of customary law. Only in
recent decades has Maori customary law again received recognition by
the New Zealand state legal system. Ironically, contrary to Justice
Prendergast’s assertion, according to Michaels’ theory, recognition of
customary law in a state statute or case does indeed bring previously
non-existent Maori law into being – but by the same reasoning the
withdrawal of said recognition also extinguishes it. External recognition
has a kind of magical ontological power to snap law into and out of
existence by declaration, a power wielded by the state legal system, while
Maori legal understandings and practices do not matter.
Now I shift from colonial settings to show how the relational theory
fails to adequately account for Jewish law and Sharia law in Western legal
systems, both mentioned by Michaels. Jewish law recognizes the law of
the state, but most state legal systems do not recognize Jewish law as law.
In the United States, the decisions of Jewish tribunals (Beth Din) are
enforced not as Jewish law, but rather as contractually binding arbitra-
tion decisions, no different from contract-based private arbitration gen-
erally. From the standpoint of believers, in contrast, these decisions are
based on Jewish law. The rules of Beth Din America declare: ‘The Beth
Din of America accepts that Jewish law as understood by the Beth Din
will provide the rules of decision and rules of procedure that govern the
Beth Din or any of its panels.’51 Thus Jewish adherents see two legal
systems operating. But according to Michaels’ theory, Jewish law is not
law unless state law recognizes it as such, which it refuses to do, so state
law is the exclusive form of law as far as it is concerned (enforcing private
arbitration grounded in state contract law is not recognition of the status
of Jewish law as a legal system, nor does it involve conﬂicts of law rules).
A number of states in the USA prohibit courts from recognizing religious
law of any kind. Since state legal systems typically assert a monopoly over
law, the consequence of his theory is to disqualify non-state law at the
outset, eliminating legal pluralism by automatically granting the monop-
olistic claim of state law.
The situation of Sharia law is even more problematic for Michaels’
theory. The UK government recently enacted provisions that would give
limited recognition (again as arbitration, not law) to decisions by Sharia
tribunals that meet speciﬁed criteria, but a number of Sharia councils
have expressed reluctance to obtain formal recognition under state law,

51
Rules and Procedures: Beth Din America, p. 5 (emphasis added), https://bethdin.org/wp-
content/uploads/2018/04/BDA118-RulesProcedures_Bro_BW_02.pdf.

State law asserts a parallel position on the opposite side. In February

2020, a British Court of Appeal ruled that a nikah (Islamic) marriage is a
‘non-marriage’ under state law, so no legally cognizable marital rights
attach to Islamic marriages.54 This mutual standoff of non-recognition
has signiﬁcant actual consequences: over half of Muslim marriages in the
UK, many of which take place in mosques or private homes, are not
registered as civil marriages.55 Oddly, under Michaels’ relational theory,
in the relations between the two, neither is a legal system. This is yet
another way in which the relational theory conceptually erases manifest
legal pluralism.

52
See S. Bano, ‘In Pursuit of Religious and Legal Diversity: A Response to the Archbishop of
Canterbury and the “Sharia Debate” in Britain’ (2008) 10 Ecclesiastical Law Journal
283–309, at 299.
53
S. H. Al-Haddad, ‘Fatwa: A Civil Divorce Is Not a Valid Islamic Divorce’, Islamic Council
of Europe (17 February 2017), https://iceurope.org/fatwa-a-civil-divorce-is-not-a-valid-
islamic-divorce/ (emphasis added).
54
H. Sherwood, ‘Islamic Faith Marriages Not Valid in English Law, Appeal Court Rules’,
The Guardian (14 February 2020), www.theguardian.com/world/2020/feb/14/islamic-
faith-marriages-not-valid-in-english-law-appeal-court-rules.
55
See G. Douglas, N. Doe, S. Gilliat-Ray, R. Sandberg and A. Khan, ‘The Role of Religious
Tribunals in Regulating Marriage and Divorce’ (2012) 24 Child & Family Law Quarterly
139–57.

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   
The relational theory of law is antithetical to the thrust of legal
pluralism for reasons revealed by these examples. Law throughout history
and today is the product of recognition within communities that live by
and recognize their own forms of law. This holds for the Indigenous law
of the Maori, Australian Aborigines and Native American tribes of North
America, as well as Jewish law, Sharia law, Hindu law and other forms of
religious law, as well as customary law across Africa, Asia and the Pacific
Islands, and many other forms of law. To condition their status as law on
recognition by an external legal system, the state legal system in particu-
lar, denies communities their own agency in determining what counts as
law. Michaels asserts, ‘In all but the rarest cases, we will be faced with
external recognition from both sides.’56 This is true among state legal
systems, which uniformly recognize one another, but there are many
examples past and present of state legal systems not extending reciprocal
recognition to customary and religious law.
The examples in this section also illustrate that whether external
recognition is extended is not always a matter of comity and respect,
but rather is a function of relative power and self-interest. Under the
ideal of the monist law state, the state characteristically claims a monop-
oly over law backed by force of arms. Many forms of community-based
law have vigorously disputed this monopolistic assertion for centuries.
What Michaels clinically presents as ‘external recognition’ has often
involved existential contests in which a state legal system asserts its
dominance over community-recognized forms of law struggling to sur-
vive.57 His theory gives the state legal system determinative say over legal
status (a common assumption of jurists), while many communities
around the globe observing non-state law resolutely insist otherwise.
Although he is correct that state law determines what counts as law for
its own purposes, this does not, and should not, dictate the status of other
legal systems on their own terms.
These objections to the relational theory reinforce a point made earlier.
Michaels’ theory of law might fit state law recognition of other state laws
through conflicts of law rules (his scholarly expertise), and it might work
for transnational forms of law and regulation, but it is not suitable for
many contexts of legal pluralism.

56
Michaels, ‘Law and Recognition’, p. 114.
57
Chapters 3 and 14 discuss Indigenous legal orders in Canada struggling to maintain their
existence against state declarations of its legal dominance.

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  . 
17.7 Foundations of Legal Pluralism in Conventional
Recognition of Law
It is a commonplace that the social world we inhabit is socially
constructed. The social world is the product of our meaningful beliefs,
actions and projects, and their intended and unintended conse-
quences. People are born into, assume a place in, partake of and
modify existing language, knowledge, social practices and institutions,
conventions and technology, generated on an ongoing basis by the
community of actors – collectively giving rise to a common social
world made up of hospitals, schools, petrol stations, factories, govern-
ment offices, courts, movie theatres, grocery stores, universities and
everything else in society. These are the ubiquitous social phenomena
in which we are daily immersed and take for granted. Socially con-
structed institutions, furthermore, are interconnected within sur-
rounding cultural, social, economic, political, legal, ecological and
technological factors, and their existence endures over time (until they
expire), developing and changing in relation to exogenous and
endogenous factors.
The socially constructed Catholic Church, for example, has
changed immensely over its two millennia history. Put in grossly
broad strokes: from the claim that Christ designated the bishop of
Rome as the head; to the edict establishing Christianity as the official
religion of the Roman Empire; to a gradual split between the Western
and Eastern churches; to the investiture conflict; to the development
of canon law influenced by Roman law; to independent legal authority
exercised by the Church across Western Europe on marriage, inherit-
ance, defamation, moral crimes and other matters, alongside regal
law, law of the manor, local customary law, etc.; to the Reformation
and Counter-Reformation and decades of devastating religious wars;
to changing relations with consolidating state systems in Europe and
the stripping of ecclesiastical law from authority over the public; to
the immensely wealthy Catholic Church today, governing its own
affairs, operating its own legal system and ensconced in a sovereign
state, Vatican City.
Notice that law and legal pluralism in various respects, evolving over
time, have a prominent role in the history of the Catholic Church,
interacting with politics, religion, economics and everything else.
Accounts of this sort can be provided for all socially constructed, histor-
ically enduring, socially interconnected, varying and changing

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   
manifestations of law throughout history and today.58 Whatever people
collectively recognize as ‘law’ (and its translations) is law – recognition of
legal status that has attached to innumerable instantiations and vari-
ations of law over time: European Union law, United Kingdom law,
Scottish law, New York municipal and state law, international law,
Halakha (Jewish law), Sharia law, Yapese customary law, Adat law in
Indonesia and countless more. These manifestations of law cannot be
captured in a single concept of law because their functions and features
vary and have changed over time. Informal customary law, and inter-
national and transnational law, do not have the same structures as state
law, which is why Hart, who explicitly based his concept on state law,
concluded that they are not fully fledged law, but pre-legal.
To know what law is for the purposes of legal pluralism does not
require an abstract concept or definition of law stating essential or
defining features – instead one must inquire into what people in a given
social arena collectively (conventionally) identify as law.59 As with any
social artefact, this inquiry presupposes a rudimentary sense of what is
law (likewise, one must begin with a sense of what a chair is to identify
what people collectively identify as chairs). Collective senses of what
counts as law – including customary and religious law, state law and
others – extend back millennia to a shared Western and Near-Eastern
tradition (Hammurabi’s Code, Greek law, Torah, Sharia, etc.). These
notions of law have spread around the world through contact, trade,
migration and interaction among peoples generally. Colonization spread
state legal systems globally through imposition or imitation, as well as
entrenched the notion of customary law in many societies, and inter-
national law was a companion of colonization, so these forms of law are
familiar in every society around the globe today. Translations for law
exist in all classical and contemporary languages – often in multiple
terms, like ius and lex, and recht and gesetz, all of which count as
conventionally identified law – instantly available on Google Translate.

58
See Tamanaha, A Realistic Theory of Law.
59
Collective recognition involves the shared conventional identiﬁcation within a group of
something as possessing legal status. Since law has substantial connotations of authority
within a group, the conventional attachment of this label is relatively restricted, applying
to a limited number of phenomena within societies. Under this approach, an interesting
question for examination is why in given arenas certain institutional forms are conven-
tionally identiﬁed as ‘law’, while others are not, which may relate to power, rhetorical
import, normative authority and other factors.

17.8 Community Law, Regime Law and Cross-polity

Law Juxtaposed
When thinking about situations of legal pluralism, it is useful to keep in
mind three roughly distinguishable general categories of bodies of law
that have been collectively recognized across many societies, which
I descriptively label community law, regime law and cross-polity law.61
(These categories are inductively derived generalizations, not analytically
derived.) Community law encompasses basic laws and institutions of

60
See N. MacCormick, Institutions of Law: An Essay in Legal Theory (Oxford University
Press, 2007), pp. 289–93; J. R. Searle, The Construction of Social Reality (Free Press, 1995),
pp. 27–51.
61
The basis for these categories is in Tamanaha, Legal Pluralism Explained.

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   
social intercourse within communities addressing property, personal
injuries, marriage, divorce, sexual restrictions, inheritance, debts and
obligations and others; the body of rules through which people arrange
their daily affairs. Every society has rules addressing these matters, which
vary greatly across societies and change over time. Many existing systems
of customary and religious law involve the lengthy continuation of
fundamental rules of social intercourse going back many centuries, pre-
dating the establishment of state legal systems and evolving to adjust to
the presence of the state (and the state to them). Regime laws are laws tied
to ruling polities. They constitute, support and enforce the power of the
governing regime, including taxation and customs fees, forced labour and
military service, laws against sedition, border controls and much more,
with governing regimes frequently nested within or encompassing in
whole or part other subregimes. Cross-polity laws deal with matters
between and across organized polities, consisting of national law (includ-
ing conflicts of law), international law, transnational law and non-state
forms of law that extend across states (like fatwa).
Community law has remained roughly the same in its ambit across
place and time. Regime law has expanded enormously in the past two
centuries with the consolidation and proliferation of bureaucratic state
law and the rise of instrumental lawmaking to address a full range of
social, economic and political matters. Cross-polity law has multiplied
greatly in conjunction with modern globalization, accelerating in the past
half-century to deal with transnational capitalism, transportation, com-
munications, financial transactions, legal and illegal migration, ecological
harms and more.
All three categories of law are contained within many unified state
legal systems today, though significant exceptions remain. This unifica-
tion is a recent arrangement. Throughout history, from the Roman
Empire to the Ottoman Empire to the British Empire, empires have
imposed regime law to maintain imperial interests, while allowing local
community-based customary and religious laws and tribunals to address
matters of everyday social intercourse. Postcolonial legal pluralism across
the Global South today is the continuing legacy of Western imperialism.
Large polities that span multiple communities often comprise some
arrangement (officially or unofficially) in which pockets of community
law continue to function.
Many situations of legal pluralism involve juxtapositions of inconsist-
ent versions of community law, state law and cross-polity law (forms of
law from different categories and/or within the same category). In many

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  . 
regions across the Global South, people in rural communities manage
their affairs through customary law and tribunals, apart from and often
inconsistent with official state laws and tribunals. Disputes over the
inheritance of land from a male who dies can involve, on the one side,
male brothers of the deceased invoking customary law on patrilineal
inheritance (community law), backed by the UN Declaration of Rights
of Indigenous Peoples (cross-polity law), to support their claim to the
land; while on the other side, widows (with help from non-governmental
organizations) may invoke state inheritance law on widow’s shares (state
law), backed by the Convention on the Elimination of All Forms of
Discrimination Against Women (cross-polity law).62 Across Asia, sub-
sistence farmers invoke customary land tenure rights (community law),
clashing with governments and developers seizing land to establish
plantations or commercial projects, who invoke transplanted official
property rights and titling systems enacted by states (state law) at the
behest of the World Bank and Western development agencies (cross-
polity organizations transplanting law). European constitutional plural-
ism involves the juxtaposition of national law of the states (regime law)
with EU treaties and law (cross-polity law); the pluralism of coexisting
subject matter regimes in international law (WTO, TRIPS, World Health
Organization, environmental treaties, etc.) involves multiple examples of
cross-polity law with different orientations and objectives, interacting
with the laws of nations (regime law).63 Legal pluralism is thus mani-
fested around the globe in myriad variations. In pluralistic contexts it is
useful to pay attention to three different directions: (1) at the coexisting
complex of legal and regulatory institutions and their interaction; (2) at
individuals, entities and groups operating within contexts of coexisting
legal and regulatory institutions; and (3) at the broader social, cultural,
economic, political and legal consequences of the coexisting legal systems
(at the consequences of 1 and 2). In the first direction, one should look at
the relative power of each set of legal institutions, and the power and
resources of the social, economic and political interests that support or
align with each; at the normative commitments and personal interests of
the officials who operate within each form of law; and at whether, and
how, coexisting forms of law operate cooperatively, competitively or
combatively (or all three). In the second direction, one should observe
how people navigate legal pluralism for normative and strategic reasons:

62
For other combinations, see Chapters 2, 7 and 15.
63
For examples, see Chapters 8, 10 and 12.

17.9 Transnational Legal and Regulatory Pluralism

To conclude, let me briefly state five main implications of the foregoing
analysis for a reconstructed transnational legal pluralism.
The first lesson, repeated throughout, is that transnational legal plur-
alism has little in common with postcolonial legal pluralism (first
approach) and sociological legal pluralism (second approach). Rather
than look to the earlier literature on legal pluralism and emphasize
continuity, which tends to mislead more than illuminate, transnational
legal pluralists should embrace the understanding that they are jurists
constructing a wholly new paradigm to address juristic concerns relating
to proliferating forms of transnational law and regulation (public, pri-
vate, hybrid).
The second lesson is that transnational legal pluralists should not
attempt to build on an abstract concept or definition of law (implicitly
or explicitly). Not only is a concept of law unnecessary and superfluous
(stated next), but engaging in this theoretical project is a roadblock to
progress. Theorists who attempt to base transnational legal pluralism on
a definition of law will go in circles with other similarly engaged theorists
and no prospect of resolution. Be forewarned by the example of John
Griffiths – the most often cited theorist of legal pluralism – who finally
abandoned this project because it could not be solved.
The third lesson is that what counts as law for transnational legal
pluralism is what communities take for granted as law: European Union

64
See Chapter 1.

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  . 
law, UK law, individual treaties, national constitutions, international law,
human rights, German municipal, state and administrative law, etc.
These conventionally recognized manifestations of law are what trans-
national legal pluralists already discuss. That is why an abstract definition
of law is unnecessary. We know what is law because we – jurists,
government officials, citizens, native peoples, members of religious com-
munities, etc. – collectively identify them as law. Coexisting clashing
conventional identifications of law may exist in given contexts (for
example state law and Sharia), but they still count as law when they are
seen as such by communities of actors.
The fourth lesson, following directly from the second and third, is that
‘transnational legal and regulatory pluralism’ is a more suitable label for
the concerns of global/transnational legal pluralists. The label ‘global legal
pluralism’ is misleading and should be dropped, for it is neither global
nor exclusively legal. The label ‘transnational legal pluralism’ is problem-
atic because it prompts theorists to explain why what they study counts
as law (thereby generating the definitional problem). There is no juristic
or conceptual reason to assert that they are law – a superfluous claim that
inevitably runs into trouble. Adding ‘regulatory’ to the label immediately
dissolves this issue and recognizes that their work encompasses public,
private and hybrid regulatory regimes, a significant amount of which is
not collectively considered law – which does not diminish the fact that
they are important and accomplish a great deal. They are what they are:
private and hybrid regulatory forms that carry out and complement legal
functions, and frequently interact with manifestations of law. They bear
directly on the concerns of transnational legal pluralists and merit inclu-
sion in the label.
The final lesson, already mentioned but worthy of separate emphasis,
is that, beyond state, international and transnational law, many commu-
nities also collectively identify and constitute forms of non-state law,
mainly manifestations of customary law, religious law and Indigenous
law (though other forms exist, like Romani law). These are law as well,
which a huge number of people around the globe recognize and live by,
especially in rural areas or within insular communities. State legal offi-
cials frequently assert state law’s claim to supremacy and exclusivity, but
this ambition (never fully achieved) does not trump what people collect-
ively recognize, construct and live by as law. State legal systems are
themselves collectively recognized forms of law – so state law, inter-
national law, transnational law and non-state law are all built on the
same foundation of collective recognition.

Aboriginal rights, in Canada, 385 AIDCP. See Agreement on the

accountability International Dolphin
in governance, risk management, Conservation Program
and compliance systems, 101 Alter, Karen, 354
quantification of, 104–5 American National Standards Institute
ACHPR. See African Charter on (ANSI), 460
Human and People’s Rights Amnesty International, 320
actors, role in legal entanglement, Anderson, Michael, 44–5
12–15. See also pathways Angela González Carreño v. Spain,
governmental actors, 13–14 157–8
non-governmental actors, 14–15 Angola, 235–6
in social credit initiatives, data- Anishinaabe peoples, under Indigenous
driven management systems as treaties, 68–70
influence on, 88 Anker, Kirsten, 410
ad hoc entanglement, with corporate ANSI. See American National
social responsibility, 318–19 Standards Institute
ad hoc legal entanglement, for NCPs, Anthropocene, ecological entanglement
326–33 and, 75–7
Adam v. Knesset, 143–4 anti-money laundering mechanisms,
Affolter, Laura, 407 238–9
African Charter on Human and Argentina, investor–state dispute
People’s Rights (ACHPR), settlement mechanisms in,
329–30 176–8
Agenda 21, 194 artificial intelligence (AI)
Agreement on Sanitary and in China, 92
Phytosanitary Measures (SPS in data-driven management systems,
Agreement), 206–10, 223 82–3
Agreement on Technical Barriers to Asian Infrastructure Investment Bank,
Trade (TBT Agreement), 206–7, 115
215–18, 223 Austin, John, 428
Agreement on the International Australia
Dolphin Conservation Program Mabo v. Queensland, 466
(AIDCP), 215–16 Modern Slavery Law, 103
Agreement on Trade-Related Aspects transnational legal pluralism in, 466
of Intellectual Property Rights UN human rights treaties
(TRIPS Agreement), 21–6 monitoring bodies in, 144,
AI. See artificial intelligence 146–8



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 
Awami League under transnational ﬁnance law,
in Bangladesh, 51, 54 121–2
in Pakistan, 44 European Court of Human Rights
and, 109
Babusiaux, Ulrike, 358, 360 European Economic Community,
Baer, Susanne, 412 116–17
Bangladesh, colonial entanglements in, goals and objectives of, 112–17
43–58 as governance project, 114–15
Awami League in, 51, 54 Greece and, 120
BNP Party in, 51 Hungary and, 124–7
Civil Codes and, 43–5, 55–6 under International Investment
Convention on the Elimination of Agreements, 119–20
All Forms of Discrimination legal pluralism and, 111
against Women and, 46–7, 53 localized effects of, 110–17
Convention on the Rights of the Ministry of Commerce and, 109
Child and, 46–7 One Belt, One Road initiative, 107–8
Covenant on Economic, Social, and Pakistan and, 122–3
Cultural Rights and, 46–7 separateness of legal norms and,
Criminal Codes and, 43–5, 55–6 108–9, 117–24
historical development of, 43–4 theoretical approach to, 107–10
after second partition of Indian Trans-Paciﬁc Partnership and,
subcontinent, 43–4 112–13
International Covenant on Civil and under Treaty of Rome, 116–17
Political Rights and, 46–7 World Bank Group and, 115
Jamaat-e-Islami and, 45–6, 54 Benda-Beckmann, Kebbet von, 411
Kissinger on, 43 Benjamin, Walter, 41–2
Village Court Act, 55–6 Benton, Lauren, 37–8
Bangladesh Bank, 250 Berman, Paul, 449–50, 454–6
Bank for International Settlements Beyond Constitutionalism (Krisch), 355
(BIS), 291, 299–300 Bhandar, Brenna, 38
banking reforms, 243 bilateral investment treaties (BITs)
Basel Committee on Banking international investment governance
Supervision, 293–4 sites and, 165
Belt and Road Initiative (BRI), China, investor–state dispute settlement
18 mechanisms and, 174–80, 184
Asian Infrastructure Investment Biosafety Protocol, CBD, 210–11
Bank and, 115 BIS. See Bank for International
centralized goals of, 110–17 Settlements
Chinese Communist Party role in, BITs. See bilateral investment treaties
119 blacklists, in social credit initiatives, 97
Court of Justice of the European Blatter, Sepp, 261–2
Union and, 109 BNP Party, in Bangladesh, 51
entangled legalities of, 110–24 Borrows, John, 380–1, 386–7, 389
ethnographic methodology in, 118 Bouman, Marlies, 40
interdependence within, 124–7 Bower, Adam, 373–4
under international law, 120–1 BRI. See Belt and Road Initiative
sociological methodology in, British Empire, legal entanglement in,
118 8–9

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 
British North America Act of 1867, See Canada/US Continued Suspension
Constitution Act, 1867 dispute, 220
buen vivir principle, in Ecuador, Canadian Constitution Act (1982),
409–11 66–7
Carrai, Maria Adele, 115
CAC. See Codex Alimentarius CAS. See Court of Arbitration for Sport
Commission Case for an International Banking
Camdessus, Michel, 296 Standard, The (Goldstein),
Campo, José Antonio, 299 295–6
Canada. See also Indigenous legalities CAT. See Convention against Torture
Aboriginal rights in, 385 CBD. See Convention on Biodiversity
Columbia Center on Sustainable CCSI. See Columbia Center on
Investment in, 178 Sustainable Investment
Comprehensive Economic Trade CED. See Convention on Enforced
Agreement, 185 Disappearances
Constitution Act 1867, 1982, 66–7, CEDAW. See Convention on the
73–4, 377, 380, 388–9, 397 Elimination of All Forms of
inclusion of Indigenous rights, 381 Discrimination against Women
EU–Canada Comprehensive Centre for International Environmental
Economic and Trade Law (CIEL), 213
Agreement, 214 CERD. See Convention on the
First Nations Land Management Act, Elimination of Racial
391–5 Discrimination
K’omoks First Nation land codes ‘cession’ treaties, 66
under, 392–5 CETA. See Comprehensive Economic
private prosecutions under, 393–4 Trade Agreement; EU–Canada
Framework Agreement on First Land Comprehensive Economic and
Management, 391–5 Trade Agreement
K’omoks First Nation land codes CFT. See counter-ﬁnancing of
under, 392–5 terrorism
private prosecutions under, 393–4 Chanock, Martin, 37
Free Trade Agreement, with Peru, China. See also Belt and Road Initiative;
178–9 social credit initiatives
Indian Act 1876, 377 artiﬁcial intelligence in, 92
investor–state dispute settlement Chinese Communist Party, 91–2
mechanisms in, 178–9 Belt and Road Initiative and, 119
legal entanglements in, conceptual investor–state dispute settlement
development of, 376–8 mechanisms in, 168
North American Free Trade Ministry of Commerce in, 109
Agreement, 173–4 Twelve Core Socialist Values in,
reconciliation project, 73 94–5
Royal Proclamation of 1763, 386, UK economic relations with, 113
388–9, 397 choice of law, tertiary rules and,
supremacy claims in, Indigenous 431–2
legal systems and, 388–95 Christie, Gordon, 75
Supreme Court of Canada, 381–4 Chunnu, Saiful, 47–8
UN human rights treaties CIEL. See Centre for International
monitoring bodies in, 144–6 Environmental Law

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 
CITES. See Convention on Treaty of Albany, 65
International Trade in religious laws and, 43–6
Endangered Species Hefazaat-e-Islamni movement, 45
citizenship Muslim Family Laws Ordinance,
ecological, 75–6 45, 49–50, 55–6
under Roman law, 366–7 under state law, 40–1
Civil Procedure Act, Norway, 137–8 theoretical approach to, overview of,
civil society, corporate social 57–8
responsibility and, 320–1 translation of, 39–43, 54–6
CJEU. See Court of Justice of the by NGOs, 54–5
European Union by non-state justice institutions,
CMW. See Convention on Migrant 55–6
Workers for secular women’s rights, 54–5
Codex Alimentarius Commission under transnational law, 39–40
(CAC), 206–8, 459–60 colonial laws, colonial entanglements
coercion and, constitutive effects of, 38–9
colonial entanglements through, 37 private property laws, 38–9
as pathway to legal entanglement, Columbia Center on Sustainable
17–19 Investment (CCSI), in Canada,
Cohen, Morris, 457 178
Colombia, investor–state dispute Comaroff, John, 38
settlement mechanisms in, 179 Commission on International Trade
colonial capital, 230 Law (UNCITRAL). See United
colonial entanglements. See also Nations
Bangladesh common law judges, 14
through coercion, 37 Communist Party of China (CPC),
colonial laws and, constitutive effects 91–2
of, 38–9 Belt and Road Initiative and, 119
private property laws, 38–9 community law, transnational legal
deferral of, 39–43, 51–3 pluralism and, 472–5
through appellate court decisions, compliance mechanisms, for social
51–3 credit initiatives, 103
denial of, 39–43, 47–50 Comprehensive Economic Trade
in media reports, 47–8 Agreement (CETA), 185
through Supreme Court verdict, Comprehensive Iran Sanctions,
48–53 Accountability, and Divestment
for fatwa practices, 48–50 Act, US (2011), 253–4
human rights issues, 52–3 Comprehensive Peace Agreement
historical trajectory for, 37–9 (2005), 41–2
legal interpretation of, 44–5 Concept of Law (Hart), 378–9, 428–30
legal pluralism and, 37–8 Conference on Environment and
under non-state law, 40–1 Development (UNCED). See
in North America, legal pluralism United Nations
and, 64–7 conﬂict-of-law norms, for international
conciliatory approaches to, 65 law, 5
for Indigenous peoples, 64–5 consent. See free, prior and informed
under Royal Proclamation of consent
1763, 65–6 Constable, Marianne, 75

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 
Constitution Act Economic Co-operation and
1867 (British North America Act of Development guidelines
1867) (Canada), 377, 380, ad hoc entanglement with, 318–19
388–9, 397 African Charter on Human and
1982 (Canada), 66–7, 73–4, 380, 397 People’s Rights and, 329–30
inclusion of Indigenous rights, Amnesty International and, 320
381 definitions of, 319–21
constitutional capture, 73 for civil society actors, 320–1
constitutional pluralism, European in EU, 319–20
Court of Justice and, 10 for non-governmental
constitutionalism organizations, 320–1
global, 356 norms for, 321
rooted, 69–70 under Paris Agreement, 338
sustainable, 61–2 pluralism within, 348
Convention against Torture (CAT), regulatory impact of, 320
Subcommittee on Prevention of scope of, 320–1
Torture, 135, 137 systems interactions in, 321–6
Convention on Biodiversity (CBD), 194 Environmental Impact
Biosafety Protocol, 210–11 Assessments, 326
Convention on Enforced Environmental Management
Disappearances (CED), Systems, 323–4
monitoring committee of, 135 International Finance
Convention on International Trade in Corporation, 325
Endangered Species (CITES), International Organization for
199–200, 202–4 Standardization, 323–4
Convention on Migrant Workers Social Impact Assessments, 326
(CMW), monitoring committee UN Guiding Principles, 324–6
of, 135 theoretical approach to, 318–19
Convention on the Elimination of All cosmopolitics, 76–7
Forms of Discrimination Cotterrell, Roger, 461–2
against Women (CEDAW), counter-entanglements, in Ecuador,
46–7, 53 413–15
monitoring committee of, 134–6 countering-financing of terrorism
in Spain, 155–8 (CFT), 236–41
Convention on the Elimination of anti-money laundering mechanisms,
Racial Discrimination 238–9
(CERD), monitoring through banking reforms, 243
committee of, 135 cooperation with other states, 238–9
Convention on the Rights of Persons counter-proliferation finance
with Disabilities (CRPD), mechanisms, 238–9
monitoring committee of, 135 design of, 237
in Germany, 149–50 Financial Action Task Force, 238–40,
Convention on the Rights of the Child 246
(CRC), 46–7 targetedness of, 239–41
monitoring committee of, 135 under US International Emergency
corporate social responsibility (CSR). Economic Powers Act, 250
See also National Contact counter-proliferation finance
Points; Organisation for mechanisms, 238–9

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 
counter-terrorist sanctions regime, by UN Security Council Resolutions,
UN Security Council, 234–58. 233, 244–5
See also countering-ﬁnancing of against Democratic People’s
terrorism Republic of Korea, 240, 248–9
9/11 terrorist attacks and, 236–7 Financial Action Task Force and,
Angola and, 235–6 246
Democratic People’s Republic of against Iran, 238–9, 252–3
Korea and, 233, 239–41, panel of experts and, 251
245–6 requirements of, 247–8
banking sanctions against, 248–9 War on Terror and, 236–7
SWIFT role in, 249–50 Court of Arbitration for Sport (CAS),
UN Security Council Resolutions 14, 260, 459
against, 240, 248–9 EU law and, 268–74
under US International as constitutional check, 270–2
Emergency Economic Powers Court of Justice of the European
Act, 250 Union, 268–70
domestic sanctions, 252–6 FIFA and, 272–4
by US, 253–6 European Convention on Human
external dynamics for, 252–6 Rights and, 260–1, 274–85
historical development of, 234–7 under Article 6(1), procedural
Iran and guarantees of, 280–5
Joint Comprehensive Plan of due process and, 280–2, 284–5
Action against, 255–6 jurisdictional issues, 275–7
UN Security Council Resolutions sports governing bodies’
against, 238–9, 252–3 regulations and, compatibility
Iraq and, 235–6, 239–41 with, 277–80
Kuwait and, 235 World Anti-Doping Code and,
Liberia and, 235–6 277–9
multilateral sanctions, 252–6 European Court of Human Rights
overview of, 256–9 and, 274–5
panels of experts for, evidence requirements, 282–4
comprehensivation through, French law and, 262
241–51 German law and, 262
evaluation and monitoring of goals and objectives of, 260–2
sanctions, 246–7 Italian law and, 262
implementation of sanctions, 244, lex sportiva, 260–2, 285–8
251 overview of, 285–8
institutional support for, 245–6 sports governing bodies and
political nature of, 244–5 administrative practices of, 260–1
UN Security Council Resolutions due process inside, 280–2
and, 251 European Convention on Human
Rhodesia and, 235 Rights and, compatibility with,
Sierra Leone and, 235–6 277–80
South Africa and, 235 under Swiss law, 262–3
state jurisdictions for, 242–3 World Anti-Doping Code and,
through trading restrictions, 235 277–9
transnational policy network for, Swiss law and, 262–8
235–6 exclusive applicability of, 265–8

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 
Court of Arbitration for Sport (CAS) for population data, 86–7
(cont.) social credit initiatives and, 84–6
FIFA cases, 263–8 governance actor relationships
Haas doctrine and, 265 influenced by, 88
sports governing bodies under, as substitute for legal norms, 87
262–3 theoretical approach to, 105–6
Swiss Federal Tribunal, 262–3 Declaration on the Rights of
Court of Justice of the European Union Indigenous Peoples (UNDRIP).
(CJEU), 109 See United Nations
Court of Arbitration for Sport and, deferral, of colonial entanglements,
268–70 39–43
investor–state dispute settlement in Bangladesh, 51–3
mechanisms in, 190 Democratic People’s Republic of Korea
Covenant Chain of friendship, 66, 68, (DPRK), 239–41, 245–6
71 banking sanctions against, 248–9
Covid-19 pandemic, social credit SWIFT role in, 249–50
initiatives during, in China, 91 UN Security Council Resolutions
CPC. See Communist Party of China against, 240, 248–9
Craft, Aimée, 69 UN Security Council sanctions
CRC. See Convention on the Rights of against, 233
the Child under US International Emergency
Criminal Procedure Act, Norway, Economic Powers Act, 250
137–8 denial, of colonial entanglements,
Crockett, Andrew, 300 39–43
cross-border normativity, for tertiary in Bangladesh, 47–53
rules, 428–34 dispute settlement agreements, during
authority sharing strategies, 433–4 Late Antique period, for Roman
challenges from, 429–30 law, 371–2
denial strategies, 431–2 Dispute Settlement Body (DSB), for
internalization strategies, 432–3 WTO, 196–8
in Syrian law, 430 claims process for, 197
cross-polity law, transnational legal jurisdiction of, 197
pluralism and, 472–5 dispute settlement mechanisms, for
CRPD. See Convention on the Rights of World Trade Organization,
Persons with Disabilities 196–8
CSR. See corporate social responsibility distancing strategies as part of, 221–2
cultural capital, 230 international law as influence on,
culture projects, social credit initiatives 197–8
for, 96–7 for legal entanglements, 220–2
Dispute Settlement Understanding
Daniels, Detlef von, 435 (DSU), 196–8
data-driven management systems distancing, through National Contact
artificial intelligence in, 82–3, 88–9 Points, 329–30
construction of, 84–91 distancing strategies, in dispute
in European Union, 89 settlement mechanisms, 221–2
Facebook and, 86–7 Doha Declaration, on TRIPS
governance of, 84–5, 88–9, 105–6 Agreement, 21
machine learning and, 88–9 Doha Round, GATT, 195–6

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 
domestic law genetically–modified organisms in,
norms for, 1 212–14
UN human rights treaties legal aftermath of, 213–14
monitoring bodies and, 148–50 legal entanglements in, 213
acceptance and engagement of ECHR. See European Convention on
domestic law, 155–60 Human Rights
case-specific pathways, 151–5 ECJ. See European Court of Justice
judicial engagement in, 143–6, ecological citizenship, 75–6
155–60 ecological entanglement. See also Earth
judicial non-engagement in, jurisprudence project;
138–41 Indigenous legalities
normative pathways for, 150–5 Anthropocene and, 75–7
in Spain, 155–60 cosmopolitics and, 76–7
Domingo, Rafael, 356 ecological jurisprudence and, 76–7
DPRK. See Democratic People’s new materialisms and, 76–7
Republic of Korea physical interdependence, 60–1
Draghi, Mario, 294 definite states, 60
DSU. See Dispute Settlement recognition processes, 61
Understanding theoretical approach to, 59–61
dual perspective approach, to uncertainty principle, 60
Indigenous legalities, 386–7 ecological law
Dworkin, Ronald, 28 ecological entanglement and, 76–7
dynamics, of legal entanglement, 11–20 Indigenous legalities and, 75–6
actors’ role in, 12–15 economic capital, 230
governmental, 13–14 ECtHR. See European Court of Human
non-governmental, 14–15 Rights
horizontal context in, 19–29 Ecuador, 407–9
pathways as factor in, 15–18 buen vivir principle in, 409–11
coercion as, 17–19 counter-entanglements in, 413–15
ideational context, 15–16 investment law in, 414–15
rational choices in, 16 legal norms in, importation of,
resonance in, 16 409–11
temporal elements, 20 Ley de Fomento Productivo, 414–15
vertical context in, 18–29 oil dumping cases in, Texaco and,
413–14
Earth jurisprudence project, 63 US–Ecuador Bilateral Investment
Eatwell, John, 301 Treaty, 413–14
EC Hormones dispute, 206–12, 220 education projects, social credit
Agreement on Sanitary and initiatives for, 96–7
Phytosanitary Measures and, EEC. See European Economic
206–10 Community
appeals process for, 209–10 Ehrlich, Eugen, 450, 457
legal aftermath of, 210–12 EIAs. See Environmental Impact
legal entanglements in, 207–8 Assessments
EC-Biotech dispute, 212–14, 220 Eichengreen, Barry, 301
EU–Canada Comprehensive entanglement. See ecological
Economic and Trade entanglement; legal
Agreement and, 214 entanglement

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 
Environmental Impact Assessments Comprehensive Economic Trade
(EIAs), 326 Agreement, 185
environmental law. See international corporate social responsibility in,
environmental law 319–20
Environmental Management Systems, Court of Justice of the European
323–4 Union, 109
Equator Principles, 122 data-driven management systems in,
Ershad, Husain Md., 45–6 89
EU. See European Union EU–Canada Comprehensive
EU law, Court of Arbitration for Sport Economic and Trade
and, 268–74 Agreement, 214
as constitutional check, 270–2 European Court of Human Rights,
Court of Justice of the European 109, 123–4
Union, 268–70 investor–state dispute settlement
FIFA and, 272–4 mechanisms in, 168
EU–Canada Comprehensive Economic legal entanglement in (See also social
and Trade Agreement (CETA), credit initiatives)
214 with EU laws, 11–12
Europe. See medieval Europe with national laws, 11–12
European Convention for the Executive Order 12938, US, 253
Protection of Human Rights Export-Import Bank Act, US (1996),
and Fundamental Freedoms, 253–4
123–4 extraspatial zones, for social credit
European Convention on Human initiatives, 98–9
Rights (ECHR), Court of extraterritoriality issues, in General
Arbitration for Sport and, Agreement on Tariffs and
260–1, 274–85 Trade, 203
under Article 6(1), procedural
guarantees of, 280–5 Facebook, 86–7
due process and, 280–2, 284–5 fact doctrines, 431
jurisdictional issues, 275–7 fair and equitable treatment (FET)
sports governing bodies’ regulations claims, in ISDS mechanisms,
and, compatibility with, 172
277–80 Fajardo, Pablo, 414
World Anti-Doping Code and, FATF. See Financial Action Task Force
277–9 fatwa practices, in Bangladesh, 48–50
European Court of Human Rights as human rights issue, 52–3
(ECtHR), 109, 123–4 Feng Xiang, 90
Court of Arbitration for Sport and, FET claims. See fair and equitable
274–5 treatment claims
evidence requirements, 282–4 FIFA (Féderation Internationale de
European Court of Justice (ECJ), Football Association), 263–8,
constitutional pluralism and, 10 272–4
European Economic Community Financial Action Task Force (FATF)
(EEC), 116–17 counter-financing of terrorism and,
European Union (EU). See also 238–40, 246
European Economic global financial governance and,
Community; specific nations 314–15

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 
financial law. See soft financial law during The Great Acceleration, 194
Financial Stability Board (FSB), 17, legal entanglement mechanisms,
290–1, 302–4, 310–15 220–2
Financial Stability Forum (FSF), 291, distancing strategies, 221–2
299–304, 312–15 multilateral environmental
First Nations Land Management Act agreements, 195
(FNLMA) (1999), Canada, norm conflicts over time, in cases
391–5 and disputes, 219–20
K’omoks First Nation land codes sustainable development issues
under, 392–5 under, 221
private prosecutions under, 393–4 Tuna Dolphin I case, 199–201, 219
First Nations peoples. See Indigenous Convention on International
legalities Trade in Endangered Species,
FNLMA. See First Nations Land 199–200
Management Act legal aftermath of, 201
FPIC. See free, prior and informed legal entanglements in, 199–201
consent regional factors, 199
Framework Agreement on First Land Tuna Dolphin II case, 199–201, 219
Management, Canada, 391–5 Uruguay Round, 195–6
K’omoks First Nation land codes US-Tuna II case, 214–18
under, 392–5 Agreement on Technical Barriers
private prosecutions under, 393–4 to Trade and, 215–18
Framework Convention on Climate appeals process for, 216–18
Change (UNFCC). See United legal aftermath of, 218
Nations legal entanglements in, 216–18
France genetically modified organisms
Court of Arbitration for Sport in, 262 (GMOs), 212–14
jurisdictional initiatives in, 407 George III (King), 68
Supply Chain Due Diligence Law, George IV (King), 68
103 Germany
Franklin, Benjamin, 68 Convention on the Rights of Persons
free, prior and informed consent with Disabilities in, 149–50
(FPIC), 331–2 Court of Arbitration for Sport in, 262
free trade agreements (FTAs) ius commune in, 8
Canada–Peru, 178–9 jurisdictional initiatives in, 407
North American Free Trade legal pluralism in, 8
Agreement, 173–4 local laws in, 8
FSB. See Financial Stability Board National Contact Points in, for
FSF. See Financial Stability Board OECD guidelines, 339
FTAs. See free trade agreements tertiary rules in, 436–7
Fuller, Lon, 364 UN human rights monitoring bodies
in, 149–50
Gadinis, Stavros, 310–11 Giovanoli, Mario, 301
Galanter, Marc, 457–8 Global Compact, 122
General Agreement on Tariffs and global constitutionalism, 356
Trade (GATT), 194–6 global financial governance
Doha Round, 195–6 Basel Committee on Banking
extraterritoriality issues, 203 Supervision, 293–4

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 
global financial governance (cont.) shaping cultures, 100–1
bodies of norms, 291–304 transparency regimes, 100
competition between ordering governmental actors, legal
projects, 300–4 entanglement and, 13–14
international banking standards, Great Acceleration, The 194
295–6 Great Peace of Montreal, 68
ordering of, after financial crises, Greco-Roman international law, 356–7
294–304 peace treaties under, 357
overarching norms, 304–7 Greece, 120
by private actors, 300 Griffiths, John, 449–51, 456–8
reception norms, 304–12 Guidice, Michael, 361–2
scope of, 296
straddling practices for, 307–12 Haas, Ulrich, 265
Financial Action Task Force and, Haas doctrine, 265
314–15 Haraway, Donna, 77
Financial Stability Board and, 290–1, Hart, H. L. A., 28, 361, 378–9, 428–30,
302–4, 310–15 457–8
Financial Stability Forum, 291, rule of recognition, 428
299–304, 312–15 Hefazaat-e-Islamni movement, 45
historical development of, 289–91 Helms–Burton Act, US, 253–4
institutional pluralism and, 299 Henderson, Sákéj, 69–70, 75
International Accounting Standards Heng Wang, 115
Board and, 300 High Commissioner for Human Rights
International Federation of (OHCHR). See United Nations
Accountants and, 309 Hoffmann, Stanley, 27
international financial standards for, horizontal context, for legal
312–15 entanglement, 19–29
International Monetary Fund and, HRC. See United Nations
290–1, 295–9 human rights. See also women’s rights;
International Swaps and Derivatives specific conventions; specific
Association, 304 covenants; specific treaties
multiplicity in, 304–15 African Charter on Human and
harmonization as result of, 304–7 People’s Rights, 329–30
overview of, 315–17 European Convention for the
soft financial law, 292 Protection of Human Rights
Tripartite Group of Banks working and Fundamental Freedoms,
group, 292–3 123–4
World Bank and, 296–7 European Court of Human Rights,
GMOs. See genetically modified 109
organisms fatwa practices and, 52–3
Goldstein, Morris, 295–6 Inter-American Court of Human
governance, risk management, and Rights, 186–7
compliance systems, 99 international investment law and, 185
accountability in, 101 investor–state dispute settlement
Bank for International Settlements, mechanisms and, 186–9
291 Organisation for Economic Co-
controlling behaviours, 100 operation and Development
law enforcement regimes, 100 guidelines and, 336

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 
privacy rights, 102–3 Ecological law and, 75–6
right to be forgotten, 102–3 First Nations Land Management Act,
UN High Commissioner for Human 391–5
Rights, 187 K’omoks First Nation land codes
Human Rights Committee (HRC). See under, 392–5
United Nations private prosecutions under, 393–4
human rights law, 133 ﬂoating rules in, 75
human–animal relationships, in Framework Agreement on First Land
Indigenous treaties, 69 Management, 391–5
Hungary, Belt and Road Initiative and, K’omoks First Nation land codes
124–7 under, 392–5
Hussein, Saddam, 235 private prosecutions under, 393–4
Great Peace of Montreal, 68
IACHR. See Inter-American Court of independence of First Nations,
Human Rights 385–6
ICCPR. See International Covenant on logics of contract, 70–6
Civil and Political Rights logics of kinship, 70–6
ICJ. See International Court of Justice Mitchell v. M.N.R., 384
IFC. See International Finance recognition of, 61–2
Corporation reconciliation of, 62
IIAs. See International Investment under Royal Proclamation of 1763,
Agreements 386, 388–9, 397
ILA. See International Law Association ‘social contract’, 71–2
ILC. See International Law supremacy claims, 378–95
Commission acceptance of, 385
Iliaﬁ v. The Church of Jesus Christ and Canadian law and, relations
the Latter-Day Saints Australia, between, 388–95
144 supremacy of force, 384–7
IMF. See International Monetary Fund supremacy of institutions, 381–4
India supremacy of norms, 380–1
creation of, as nation-state, 43–4 Supreme Court of Canada decisions,
after second partition of Indian 381–4
subcontinent, 43–4 transnational legal pluralism and,
Indian Act 1876, 377 466, 469
Indigenous legalities, in Canada Truth and Reconciliation
Aboriginal rights, 385 Commission and, 383
Canadian state and, relation with, Two-Row Wampum
386–7 as symbolism, 73, 389–90
conceptual alternatives to, 395–8 as treaty feature, 385–6, 389–90
inter-institutional view, 396–8 Indigenous treaties, with colonial
system-centred law, 398 authorities, 63–4, 66–70
under Constitution Act 1867, 1982, Anishinaabe peoples and, 68–70
380, 388–9, 397 under Canadian Constitution Act
under Constitution Act 1982, 381 (1982), 66–7, 73–4
Covenant Chain of friendship and, ‘cession’ treaties, 66
66, 68, 71 human–animal relationships in, 69
dual perspective approach to, 386–7 implicate order, 69–70
ecological citizenship and, 75–6 kinship terms in, 68–9

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 
Indigenous treaties, with colonial international trade law influenced by,
authorities (cont.) 194–6
logics of contract, 70–6 multilateral environmental
logics of kinship, 70–6 agreements, 195
rooted constitutionalism and, 69–70 Rio Declaration and, 194–5
Treaty of Niagara, 66 Shrimp-Turtle case, 204
Two-Row Wampum symbolism and, sustainable development
73 mechanisms, 203
institutional pluralism, global financial International Federation of
governance and, 299 Accountants, 309
Inter-American Convention on Human International Finance Corporation
Rights, 186–7 (IFC), 325
Inter-American Court of Human International Investment Agreements
Rights (IACHR), 186–7 (IIAs), 119–20
interface norms, 222–4, 435 international investment governance
substantive dimensions for, 223–4 sites, 165–70
inter-institutional view, of Indigenous bilateral investment treaties and, 165
legalities, 396–8 competing interests in, 165–8
International Accounting Standards for non-governmental
Board, 300 organizations, 166
international banking standards, 295–6 ideational contexts for, 168–70
International Court of Justice (ICJ), 14, international law. See also international
162–3 trade law
UN human rights treaties Belt and Road Initiative under,
monitoring bodies and, 134–6 120–1
international courts. See also specific fragmentation of, 110
courts Greco-Roman, 356–7
expansion of, 354–5 peace treaties under, 357
International Covenant on Civil and legal entanglement in, 10
Political Rights (ICCPR), 46–7, norms for, 1
135–6 conflict-of-law, 5
in domestic courts private
in Ireland, 138–9 philosophical foundations for,
in Philippines, 139 354–5
investor–state dispute settlement tertiary rules and, 446–7
mechanisms and, 175–6 Westphalian state governance and,
International Covenant on Economic, 354–5
Social, and Cultural Rights, World Trade Organization dispute
46–7 settlement mechanisms
monitoring committee of, 135 influenced by, 197–8
International Emergency Economic International Law Association (ILA),
Powers Act, US, 250 140–1, 153–4
international environmental law International Law Commission (ILC),
Agreement on the International 142–3, 153–4
Dolphin Conservation International Monetary Fund (IMF),
Program, 215–16 18, 256–7
Centre for International global financial governance and,
Environmental Law, 213 290–1, 295–9

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 
International Organization for through investment adjudication
Standardization (ISO), 323–4 reform, 189–91
International Swaps and Derivatives through investment agreement
Association, 304 reform, 184–6
international trade law. See also specific for multilateral investment treaties,
trade agreements 175–6
environmental law as influence on, multiplicity in, 170–83
194–6 distance issues, 173–5
historical development of, 194–8 hierarchies, 171–3
legal entanglement and, emerging integrationist perspectives, 175–80
forms of, 194–6 proximities, 173–5
multilateral environmental relational forms, 170–1
agreements and, 195 separations, 171–3
regulatory regimes for, 193–4 networks for, 167–8
theoretical approach to, 193–4 non-governmental organizations
investment governance and law. See and, 173–5
also international investment North American Free Trade
governance sites; investor– Agreement and, 173–4
state dispute settlement Permanent Court of Arbitration, 171
mechanisms Transatlantic Trade and Investment
in Ecuador, 414–15 Partnership and, 189–90
investor–state dispute settlement under Trans-Pacific Partnership, 185
mechanisms under, 185 in United Kingdom, 179–80
investment tribunals, 169–70 in US, 168
investor–state dispute settlement Vienna Convention on the Law of
(ISDS) mechanisms, 164 Treaties and, 173–4, 179–80
analysis of, 191–2 World Trade Organization and, 169
arbitrators in, 169 Iran
in Argentina, 176–8 Comprehensive Iran Sanctions,
bilateral investment treaties and, Accountability, and Divestment
174–80, 184 Act and, 253–4
in Canada, 178–9 Iran Freedom and Counter-
in China, 168 Proliferation Act and, 253–4
in Colombia, 179 Joint Comprehensive Plan of Action
under Comprehensive Economic against, 255–6
Trade Agreement, 185 Nuclear Iran Prevention Act and,
in Court of Justice of the European 253–4
Union, 190 UN Security Council Resolutions
in EU, 168 against, 238–9, 252–3
fair and equitable treatment claims, Iran Freedom and Counter-
172 Proliferation Act, US, 253–4
International Covenant on Civil and Iraq, 235–6, 239–41
Political Rights and, 175–6 Ireland, UN human rights treaties
under international investment law, monitoring bodies in, 138–9
185 ISDS mechanisms. See investor–state
investment tribunals, 169–70 dispute settlement mechanisms
legal entanglements and, 180–91 ISO. See International Organization for
for human rights claims, 186–9 Standardization

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 
Israel, UN human rights treaties Kissinger, Henry, 43
monitoring bodies in, 143–4 Kohn, Eduardo, 76
Italy, Court of Arbitration for Sport in, K’omoks First Nation, land codes for,
262 392–5
ius civile (law of Roman citizen-body), Krisch, Nico, 64–5, 355, 362, 374–5,
360 399
ius commune, in Germany, 8 on closed legal systems, 401
ius gentium (natural law), 360 on interface norms, 435
ius honorarium (law of urban praetor), on postnational law, 361–6
360 Kumm, Mattias, 186
ius praetorium (law of urban praetor), Kuwait, 235
360
Late Antique period, for Roman law,
Jamaat-e-Islami, in Bangladesh, 45–6, 366–74
54 dispute settlement agreements in,
JCPOA. See Joint Comprehensive Plan 371–2
of Action legal norms during, 372–4
Jewish law, transnational legal P. Petra IV. 9 document, 367–75
pluralism and, 467 strategic legal argumentation in,
Johnson, Harold, 68–9 373–4
Joint Comprehensive Plan of Action Latour, Bruno, 403
(JCPOA), 255–6 law. See also legal norms; specific topics
Jones v. Saudi Arabia, 145 coherence of, as expectation, 1
judges, common law, 14 expanded definitions of, through
jurisdiction legal norms, 361–6
of counter-terrorist sanctions mobilization of, 405–9
regimes, 242–3 through transnational lawsuits, 406
of Court of Arbitration for Sport, norms of, 1
275–7 conflict-of-law, 5
of Dispute Settlement Body, for origins of, 1
WTO, 197 postnational, 361–6
for European Convention on Human governance structures, 363
Rights, 275–7 jurisdictional aspect of, 363
in French law, 407 law in action approaches, 364
in German law, 407 law in practice approaches, 364
postnational law and, 363 Transnational Legal Process
in Roman law, 359, 365–6 model, 364
user theory for, 374–5 law in action approaches, to
in Swiss law, 407 postnational law, 364
law in practice approaches, to
Kaimio, Maarit, 368, 371 postnational law, 364
Kav Laoved v. Interior Ministry, 143–4 law of Roman citizen-body. See ius civile
Kazemi (Estate) v. Iran, 145–6 law of urban praetor. See ius
Kelsen, Hans, 361, 429–30 honorarium; ius praetorium
Kennan, George, 114 legal entanglement. See also specific
kinship terms, in Indigenous treaties, topics
68–9 ad hoc, with corporate social
Kirsch, Stuart, 403, 412–13, 422 responsibility, 318–19

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 
of Belt and Road Initiative, 110–24 legal norms
ethnographic methodology in, 118 Belt and Road Initiative and,
interdependence within, 124–7 separateness of norms and,
under international law, 120–1 108–9, 117–24
sociological methodology in, 118 conflict-of-law, 5
under transnational finance law, data-driven management systems as
121–2 substitute for, 87
in British Empire, 8–9 for domestic law, 1
definition of, 412–13 in Ecuador, importation of, 409–11
dynamics of, 11–20 during Late Antique period, 372–4
actors’ role in, 12–15 for religious law, 1
horizontal context in, 19–29 for state law, 1
pathways as factor in, 15–19 for transnational law, 1
temporal elements, 20 legal orders, 1. See also tertiary rules
vertical context in, 18–29 legal entanglements through, 26–31
forms of, 21–6 conflict as result of, 27–8
overarching norms, 24 consolidation as result of, 27–8
reception norms, 23–4, 29 future challenges for, 28–31
straddling practices, 24–6 reception norms and, 29
typologies, 23–6 legal pluralism and, 424–5
history of, 2–3 post-law
cultural studies, 3 pan-legalist objections, 80–1
legal orders and, 5 theoretical approach to, 79–84
legal pluralism in, 3–5 primary rules for, 428–9
in international law, 10 rule of recognition and, 428
through legal orders, 26–31 secondary rules for, 428–9
conflict as result of, 27–8 legal pluralism. See also transnational
consolidation as result of, 27–8 legal pluralism
future challenges for, 28–31 Belt and Road Initiative and,
reception norms and, 29 111
in medieval Europe, 7–9 colonial entanglements and, 37–8
in modern states, 7–11, 127–9 in Germany, 8
norms in global, 10–11
bodies of, 5–6 legal entanglement and, in history of,
tertiary, 5–6, 21 3–5
protesting of, from below legal orders and, 424–5
coherence in approaches to, 420–3 legal positivism, 365
through importation of other legal tertiary rules and, 427–8
norms, 409–11 Lévi-Strauss, Claude, 353–4
through mobilization of law, lex sportiva, 260–2, 285–8
405–9 Ley de Fomento Productivo, Ecuador
through settlement negotiations, 416 (2018), 414–15
singularization of, 415–20, 422–3 Liberia, 235–6
vernacularization and, 422 Lindt, Angela, 416
reverse translation of, 412–13, 422 logics of contract, 70–6
in Roman Empire, 7–9 logics of kinship, 70–6
theoretical approach to, 1–6 Luhmann, Niklas, 30
in transnational law, 10 Luther, Martin, 79–80

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 
MacCormick, Neil, 364, 396 National Contact Points (NCPs), for
machine learning, 88–9 OECD, 318–19
Mallard, Grégoire, 229 ad hoc legal entanglement, 326–33
Mar, Maksymilian del, 405 ambiguous cases for, 330–3
Marmor, Andrei, 438 analysis of, 344–7
Marrakesh Agreement, WTO and, 195 distancing through, 329–30
Marry, Sally Engle, 37 free, prior and informed consent,
Mawani, Renisa, 35–6 331–2
MEAs. See multilateral environmental in Germany, 339
agreements implementation mechanisms for,
medieval Europe, legal entanglement 348–9
in, 7–9 integrated normative systems, 333–6
Merry, Sally Engle, 422, 451, 454–6 long-term implications for, 344–7
Mészáros, Lőrinc, 126–7 in Netherlands, 339–40
MFLO. See Muslim Family Laws in Norway, 338
Ordinance proximity between, 333–44
Michaels, Ralf, 449–50, 462–9. See also in Switzerland, 340–1
transnational legal pluralism in United Kingdom, 341–4
Migdal, Joel, 43 national reputation systems, in China,
Mills, Aaron, 63, 69–73, 382 92–3
on constitutional capture, 73 natural law. See ius gentium
Ministry of Commerce (MOFCOM), in NCPs. See National Contact Points
China, 109 Netherlands, National Contact Points
Mitchell v. M.N.R., 384 in, for OECD guidelines,
Modern Slavery Law, Australia, 103 339–40
modern states. See also speciﬁc states new materialisms, 76–7
legal entanglement in, 7–11, 127–9 New Silk Road. See Belt and Road
MOFCOM. See Ministry of Commerce Initiative
Monture-Angus, Patricia, 382 New Zealand, Treaty of Waitangi, 389,
Moore, Sally Falk, 450, 453–5 466–7
Morocco, tertiary rules in, 439–41, NGOs. See non-governmental
444–5 organizations
multilateral environmental agreements 9/11 terrorist attacks, 236–7
(MEAs), 195 non-governmental actors, legal
multilateral investment treaties, entanglement and, 14–15
investor–state dispute in Bangladesh, 54–5
settlement mechanisms for, non-governmental organizations
175–6 (NGOs)
multilateral sanctions, by UN Security corporate social responsibility for,
Council, 252–6 320–1
Muslim Family Laws Ordinance deferral of norms by, 36
(MFLO), Bangladesh, 45, denial of norms by, 36
49–50, 55–6 international investment governance
Mutu, Adrian, 273–4 sites and, competing interests
within, 166
Nadasdy, Paul, 69 investor–state dispute settlement
NAFTA. See North American Free mechanisms and, 173–5
Trade Agreement translation of norms by, 36

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 
non-state justice institutions. See also corporate social responsibility,
non-governmental actors 318–19. See also National
in Bangladesh, 55–6 Contact Points
non-state law, colonial entanglements analysis of, 344–7
under, 40–1 external bodies of norms, 336–44
norms historical development of, 322–6
for domestic law, 1 human rights norms under, 336
interface, 222–4, 435 implementation framework for,
substantive dimensions for, 223–4 326–8
for international law, 1 long-term implications for, 344–7
conﬂict-of-law norms, 5 revisions of, 322–6
for legal entanglement overarching norms, 24, 304–7
bodies of, 5–6 Oxford Handbook on Global Legal
overarching norms, 24 Pluralism, 455–6
reception norms, 23–4, 29
tertiary norms, 5–6, 21 P. Petra IV. 9 document, Roman law
non-governmental organizations and, 367–75
and, 36 Pakistan
overarching, 304–7 Awami League, 44
reception, 304–12 Belt and Road Initiative and, 122–3
for religious law, 1 creation of, as nation-state, 43–4
for state law, 1 Muslims in, 43–4
for transnational law, 1 after second partition of Indian
North American Free Trade Agreement subcontinent, 43–4
(NAFTA), 173–4 on sustainable development
Norway mechanisms, 203
Civil Procedure Act, 137–8 panel of experts (PoE), for UN Security
Criminal Procedure Act, 137–8 Council, 241–51
National Contact Points in, for evaluation and monitoring of
OECD guidelines, 338 sanctions, 246–7
Nuclear Iran Prevention Act, US implementation of sanctions, 244,
(2013), 253–4 251
Nuclear Proliferation Prevention Act, institutional support for, 245–6
US (1994), 253 political nature of, 244–5
UN Security Council Resolutions
OBOR initiative. See One Belt, One and, 251
Road initiative Paris Agreement, corporate social
OECD guidelines. See Organisation for responsibility under, 338
Economic Co-operation and pathways, to legal entanglement,
Development guidelines 15–18
OHCHR. See United Nations coercion as, 17–19
oil dumping cases, in Ecuador, 413–14 ideational context, 15–16
One Belt, One Road (OBOR) initiative, rational choices in, 16
107–8 resonance in, 16
Orbán, Viktor, 126–7 PCA. See Permanent Court of
Organisation for Economic Co- Arbitration
operation and Development Peat, David, 69–70
(OECD) guidelines, for Pechstein, Claudia, 287–8

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 
Permanent Court of Arbitration (PCA), private rule systems, transnational legal
171 pluralism and, 459–61
Peru, Free Trade Agreement, with processing and production methods
Canada, 178–9 (PPMs), 195
Philippines
UN human rights treaties Rahman, Ziaur, 45
monitoring bodies in, 139 Randeria, Shalini, 408
Wilson v. Ermita, 139 rational choices, in pathways to legal
Pistorius, Oscar, 261–2 entanglement, 16
Platini, Michel, 261–2 Raw and the Cooked, The (Lévi-
pluralism. See also legal pluralism; Strauss), 353–4
transnational legal pluralism Raz, Joseph, 361, 379, 458–9
constitutional, 10 reception norms, 23–4, 29, 304–12
within corporate social regime law, transnational legal
responsibility, 348 pluralism and, 472–5
institutional, 299 regulatory pluralism, 475–7
regulatory, 475–7 relabeling, in transnational legal
PoE. See panel of experts pluralism, 459
political capital, 230 religious law
population data in Bangladesh, colonial
data-driven management systems entanglements in, 43–6
for, 86–7 Hefazaat-e-Islamni movement,
social credit initiatives for, in 45
Western nations, 101 Muslim Family Laws Ordinance,
positivism. See legal positivism 45, 49–50, 55–6
post-law legal orders. See also data- norms for, 1
driven management systems Rhaman, Mujibur (Sheikh), 44
pan-legalist objections, 80–1 Rhodesia, 235
theoretical approach to, 79–84 right to be forgotten, 102–3
postnational law, 361–6 Riles, Annelise, 302
governance structures, 363 Rio Declaration, 194–5
jurisdictional aspect of, 363 Rodriguez, José Luis Alonso, 365
law in action approaches, 364 Roman Empire. See also Roman law
law in practice approaches, 364 legal entanglement in, 7–9
Transnational Legal Process model, Roman law
364 citizenship under, 366–7
PPMs. See processing and production Greco-Roman international law,
methods 356–7
primary rules, for legal orders, 428–9 peace treaties under, 357
privacy rights, 102–3 historical development of, 356–61
private international law imperial expansion as inﬂuence on,
philosophical foundations for, 354–5 358–9
tertiary rules and, 446–7 ius civile, 360
Westphalian state governance and, ius gentium, 360
354–5 ius honorarium, 360
private property laws, colonial ius praetorium, 360
entanglements and, 38–9 jurisdictional aspect of, 359, 365–6
private Roman law, 367 user theory in, 374–5

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 
Late Antique period, 366–74 Siddiqui, Dina, 48–9
dispute settlement agreements in, Sieder, Rachel, 420
371–2 Sierra Leone, 235–6
legal norms during, 372–4 singularization, 415–20, 422–3
P. Petra IV. 9 document, 367–75 ‘social contract’, Indigenous legalities
strategic legal argumentation in, and, 71–2
373–4 social credit initiatives
layers of, 360 in China, 91–8
legal entanglements in, 366–74 application mechanisms for,
legal positivism and, 365 95–7
private, 367 baseline systems, 97
provincial system under, 358–9 blacklists, 97
Romano, Santi, 458 Chinese Communist Party
rooted constitutionalism, Indigenous influences on, 91–2
treaties and, 69–70 in commercial activities, 95–6
Roughan, Nicole, 433–4 during Covid-19 pandemic, 91
Royal Proclamation of 1763 (Canada), for culture projects, 96–7
386, 388–9, 397 for education projects, 96–7
Ruggie, John, 324–6 goals and objectives of, 92–5
rule of recognition, 428 national reputation systems and,
‘The Ruse Law’, Sudan, 41 92–3
as new type of law, 93–4
Sachenspiegel, 7 social ordering and, 93
Salomon, Noah, 41 Twelve Core Socialist Values and,
sanction regimes. See also UN Security 94–5
Council data-driven management systems
colonial legal entanglements and, and, 84–6
230 governance actor relationships
Western law and, historical influenced by, 88
development of, 229–30 in Western nations, 98–104
Santos, Boaventura de Sousa, 30 for census data, 101
SASF. See semi-autonomous social field compliance mechanisms, 103
secondary rules, for legal orders, 428–9 extraspatial zones for, 98–9
Semenya, Caster, 261–2 governance, risk management,
semi-autonomous social field (SASF), and compliance systems,
457 99–101
SGBs. See sports governing bodies governance mechanisms, 103–4
Sharapova, Maria, 261–2 for privacy rights, 102–3
Sharia law and, 467–8 for right to be forgotten, 102–3
Shehabuddin, Elora, 54–5 Social Impact Assessments, 326
Shrimp-Turtle case, 201–6, 219 social ordering, in social credit
appeals process for, 204–5 initiatives, 93
Convention on International Trade sociological positivism, tertiary rules
in Endangered Species and, and, 427
202–4 soft financial law, 292
under environmental law, 204 Sousa Santos, Boaventura de, 453–4
legal aftermath of, 206 South Africa, counter-terrorist
legal entanglements in, 202–4 sanctions against, 235

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 
Spain exclusive applicability of, 265–8
Convention on the Elimination of FIFA cases, 263–8
All Forms of Discrimination Haas doctrine and, 265
against Women in, 155–8 sports governing bodies under,
UN human rights monitoring bodies 262–3
in, 155–8 Swiss Federal Tribunal, 262–3
Usatges de Barcelona, 7 jurisdictional initiatives in, 407
sports governing bodies (SGBs) National Contact Points in, for
administrative practices of, 260–1 OECD guidelines, 340–1
due process inside, 280–2 Syria, tertiary rules in, 436
European Convention on Human cross-border normativity and, 430
Rights and, compatibility with, system-centred law approach, to
277–80 Indigenous legalities, 398
under Swiss law, 262–3 systems theory, 30
World Anti-Doping Code and,
277–9 Taylor, Lance, 301
SPS Agreement. See Agreement on TBT Agreement. See Agreement on
Sanitary and Phytosanitary Technical Barriers to Trade
Measures tertiary norms, 5–6, 21
Stark, Heidi, 69 tertiary rules, for legal orders
state law application of foreign laws, 446–7
colonial entanglements under, 40–1 arguments for, 425–6
norms for, 1 characteristics of, 434–42
Staying with the Trouble (Haraway), 77 designation of normative spaces,
Strathern, Marilyn, 402–3 435–7
Sudan, ‘The Ruse Law’, 41 horizontal nature, 438–40
Supply Chain Due Diligence Law, legal nature, 437–8
France, 103 relationality, 440–2
supremacy claims, for Indigenous choice of law, 431–2
legalities, in Canada, 378–95 cross-border normativity and,
acceptance of, 385 428–34
Canadian law and, relations between, authority sharing strategies,
388–95 433–4
supremacy of force, 384–7 challenges from, 429–30
supremacy of institutions, 381–4 denial strategies, 431–2
supremacy of norms, 380–1 internalization strategies, 432–3
Supreme Court of Canada, 381–4 in Syrian law, 430
sustainable constitutionalism, 61–2 deﬁnition of, 435
sustainable development mechanisms, in English law, 439–41, 444–5
203 external recognition, of national
under General Agreement on Tariffs laws, 442–5
and Trade, 221 fact doctrines, 431
World Trade Organization, 221 in German law, 436–7
SWIFT, in counter-terrorist sanctions, hierarchy in, 439
249–50 legal positivism and, 427–8
Switzerland in Moroccan law, 439–41, 444–5
Court of Arbitration for Sport and, private international laws and, 446–7
Swiss law as inﬂuence on, 262–8 recognition of, 447–8

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 
recognition of foreign acts, records, as relational legal concept, flaws of,
and judicial proceedings, 444–6 462–9
sociological positivism and, 427 separation of theory and practice
in Syrian law, 436 under, 461–2
cross-border normativity in, 430 Sharia law and, 467–8
in US law, 444–5 sociological approaches to, 453,
vested rights theory and, 432 456–9
Teubner, Gunther, 453–4 theoretical approach to, 449–50
Texaco, 413–14 Transnational Legal Process model, for
This Is Not a Peace Pipe (Turner), 385 postnational law, 364
Thomas, Flavius, 370 Trans-Pacific Partnership (TPP),
Tietmeyer, Hans, 299 112–13
Todd, Zoe, 77 investor–state dispute settlement
TPP. See Trans-Pacific Partnership mechanisms under, 185
Trachtman, Joel, 435 transparency regimes, 100
trade law. See international trade law Treaty of Niagara, 66
Transatlantic Trade and Investment Treaty of Rome, 116–17
Partnership (TTIP), 189–90 Treaty of Waitangi, New Zealand, 389,
transnational finance law, Belt and 466–7
Road Initiative under, 121–2 tribunals. See investment tribunals
transnational law Trindade, Cançado, 186–7
colonial entanglements under, 39–40 Tripartite Group of Banks working
for finance, Belt and Road Initiative group, 292–3
under, 121–2 TRIPS Agreement. See Agreement on
legal entanglement in, 10 Trade-Related Aspects of
norms for, 1 Intellectual Property Rights
transnational legal pluralism Trump, Donald, 460–1
in Australia, 466 Truth and Reconciliation Commission,
bodies of law within, multiplicity of, 383
451–2 TTIP. See Transatlantic Trade and
collective recognition and, 471 Investment Partnership
community law and, 472–5 Tully, James, 61–2, 114.10. See also
conventional recognition and, 472 Indigenous legalities;
cross-polity law and, 472–5 sustainable constitutionalism
foundations of, 470–5 Tuna Dolphin I case, 199–201, 219
global approaches to, 453 Convention on International Trade
Indigenous legalities and, 466, 469 in Endangered Species, 199–200
Jewish law and, 467 legal aftermath of, 201
jurisprudential legal concepts and, legal entanglements in, 199–201
456–9 regional factors, 199
over-inclusiveness flaw in, 454–6 Tuna Dolphin II case, 199–201, 219
paradigms of, 450–4 Turner, Dale, 385
postcolonial approaches to, 453 Twelve Core Socialist Values, in China,
private rule systems and, 459–61 94–5
regime law and, 472–5 Twining, William, 449, 454
regulatory forms in, 459–61 Two-Row Wampum
regulatory pluralism and, 475–7 as symbolism, 73, 389–90
relabeling and, 459 as treaty feature, 385–6, 389–90

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 
UK. See United Kingdom against Iran, 238–9, 252–3
UN. See United Nations panel of experts and, 251
UN human rights treaties monitoring requirements of, 247–8
bodies. See also specific UNCED. See United Nations
conventions; specific treaties uncertainty principle, 60
in domestic courts, 148–50 UNCITRAL. See United Nations
acceptance and engagement of, UNDRIP. See United Nations
155–60 UNFCC. See United Nations
case-specific pathways, 151–5 United Kingdom
judicial engagement in, 143–6, economic relations with China, 113
155–60 investor–state dispute settlement
judicial non-engagement in, 138–41 mechanisms in, 179–80
normative pathways for, 150–5 National Contact Points in, for
in Spain, 155–60 OECD guidelines, 341–4
goals and objectives of, 133 tertiary rules in, 439–41, 444–5
International Court of Justice UN human rights treaties
engagement with, 134–6 monitoring bodies in, 144–6
judicial engagement with, 143–8, United Nations (UN). See also UN
155–60 human rights treaties
acceptance of, 155–60 monitoring bodies; UN Security
in Australia, 144, 146–8 Council
in Canada, 144–6 Commission on International Trade
in domestic courts, 143–6, 155–60 Law, 171, 190–1
in Israel, 143–4 Conference on Environment and
normative pathways for, 146–8 Development, 194
as substantive, 144–6 Declaration on the Rights of
in UK, 144–6 Indigenous Peoples, 332
judicial non-engagement with, 138–43 Framework Convention on Climate
in domestic courts, 138–41 Change, 194
in international courts, 141–3 Guiding Principles, 324–6
in Ireland, 138–9 High Commissioner for Human
in Philippines, 139 Rights, 187
jurisprudence of, domestic relevance Human Rights Committee, 21, 135
of, 135–8 judicial decisions for, 140
normative pathways for, 133–4 obligations to cooperate, 158–60
theoretical approach to, 133–4, United States (US). See also counter-
160–1 terrorist sanctions regime
Vienna Convention on the Law of 9/11 terrorist attacks against, 236–7
Treaties, 146–7 Comprehensive Iran Sanctions,
UN Security Council (UNSC), 231–4 Accountability, and Divestment
Democratic People’s Republic of Act, 253–4
Korea and, sanctions against, Executive Order 12938, US, 253
233 Export-Import Bank Act, 253–4
UN Security Council Resolutions Helms–Burton Act, 253–4
(UNSCRs), 233, 244–5 International Emergency Economic
against Democratic People’s Powers Act, 250
Republic of Korea, 240, 248–9 investor–state dispute settlement
Financial Action Task Force and, 246 mechanisms in, 168

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 
Iran Freedom and Counter- Whyte, Kyle Powys, 77
Proliferation Act, 253–4 Williams, Robert, Jr., 63–4
North American Free Trade Wojtczak, Marzena, 373
Agreement, 173–4 women’s rights, in Bangladesh, 54–5
Nuclear Iran Prevention Act, 253–4 World Anti-Doping Code (WADC),
Nuclear Proliferation Prevention 277–9
Act, 253 World Bank Group, 115, 256–7
tertiary rules in, 444–5 global financial governance and,
US-Ecuador Bilateral Investment 296–7
Treaty, 413–14 World Health Assembly, 21
War on Terror and, 236–7 World Trade Organization (WTO)
UNSC. See UN Security Council Agreement on Technical Barriers to
UNSCRs. See UN Security Council Trade, 206–7
Resolutions Canada/US Continued Suspension
Uruguay Round, GATT, 195–6 dispute, 220
US. See United States Codex Alimentarius Commission
Usatges de Barcelona, 7 and, 206–8
US–Ecuador Bilateral Investment Dispute Settlement Body, 196–8
Treaty, 413–14 claims process for, 197
user theory for jurisdiction, 374–5 jurisdiction of, 197
US-Tuna II case, 214–18 dispute settlement mechanisms,
Agreement on Technical Barriers to 196–8
Trade and, 215–18 distancing strategies as part of,
appeals process for, 216–18 221–2
legal aftermath of, 218 international law as influence on,
legal entanglements in, 216–18 197–8
for legal entanglements, 220–2
Valverde, Alejandro, 261–2 Dispute Settlement Understanding,
VCLT. See Vienna Convention on the 196–8
Law of Treaties EC Hormones dispute, 206–12, 220
vernacularization, 422 Agreement on Sanitary and
vertical context, for legal entanglement, Phytosanitary Measures and,
18–29 206–10
vested rights theory, 432 appeals process for, 209–10
Victoria (Queen), 68 legal aftermath of, 210–12
Vienna Convention on the Law of legal entanglements in, 207–8
Treaties (VCLT), 146–7 EC-Biotech dispute, 212–14, 220
investor–state dispute settlement EU–Canada Comprehensive
mechanisms and, 173–4, Economic and Trade
179–80 Agreement and, 214
Village Court Act, Bangladesh (2006), genetically–modified organisms
55–6 in, 212–14
legal aftermath of, 213–14
WADC. See World Anti-Doping Code legal entanglements in, 213
Walker, Neil, 355, 357–8 establishment of, 194
Walters, Mark, 382–3 Marrakesh Agreement and, 195
War on Terror, 236–7 interface norms, 222–4
White, Sarah, 43, 54 substantive dimensions for, 223–4

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