Lucy Lu Reimers
PhD Candidate International Law, Graduate Institute of International and Development Studies
PhD Candidate International Law (minor Anthropology and Sociology), Graduate Institute of International and Development Studies
The proliferation of new transnational norms alongside international and domestic law is producing new forms of legal interactions between various normative orders. Periods of legal multiplicity and the concern with “too much law” are not new phenomena. Overlapping, competing, conflicting, and entangled laws and jurisdictional competencies defined the legal landscape of medieval Europe and characterised (past and current) eras of imperial and colonial expansion. The resurgence of normative multiplicity in the 21st century, in a time when legal systems are significantly impacted by globalization and the rise of market-based and non-state governance, is therefore unsurprising. Motivated by these developments, the Interface Law Project conducts research on how different bodies of norms are brought into relation by governance actors in a process we term “enmeshment” or “entanglement”.
Since the research project began in June 2017, Nico Krisch, Francesco Corradini and Lucy Lu Reimers have followed a two-pronged approach: developing and refining the overarching conceptual and theoretical framework on “interface law”, while also collating and analysing empirical evidence on the management of legal interfaces in the areas of finance, corporate responsibility, and trade. During this time, the Interface Law team has also been collaborating and sharing insights with a broader research group (OSAIC) based primarily in Berlin, composed of international lawyers and international relations scholars studying interface conflicts in the international order.
The workshop on Entangled Legalities, which took place in Geneva on the 24th and 25th of May 2018 marked the first time that the Interface Law Project brought together an inter-disciplinary group of scholars from history, sociology, anthropology, and law to study legal entanglement. Participants presented short think pieces to stimulate discussions, covering a variety of themes, ranging from the late Roman Empire to indigenous law, corporate social responsibility, the global governance of finance, and algorithmic regulation. In the course of discussions, some crosscutting themes emerged, including: the rising frequency of interface interactions in burgeoning regulatory domains of global governance; the complex processes of entanglement and disentanglement in the context of regional economic integration projects (for instance the Chinese “One Belt One Road” Initiative and “Brexit”, respectively); and the rise of extralegal interactions and coordination mechanisms. Participants also shared ideas on the development of “interface law” and the creation of order at the margins, as well as the politics of power in global legal pluralism.
“Although the entanglement of legalities seems to be a characteristic of global law and instances of enmeshment stand out, a distinct, even deliberate, lack of relationing between bodies of norms is also discernible.”
In a globalized world, interactions between bodies of norms are becoming more common. An example is the way in which corporate social responsibility (CSR) frameworks commonly refer to and draw on the same set of human rights, international labour, and environmental law instruments to enhance their substantive provisions. Cross-referencing and normative cross-fertilization also occur between CSR instruments, which are periodically updated to reflect each other’s normative developments. More novel, ad-hoc forms of relationing are observable in quasi-judicial settings, such as the National Contact Points (NCPs) of the OECD Guidelines for Multinational Enterprises, as NCPs, in order to flesh out CSR responsibilities, weave together bodies of norms from different spheres of authority, using for example the Akwé: Kon Guidelines and the International Finance Corporation (IFC) Performance Standards to interpret the OECD Guidelines recommendation to consult with affected indigenous and local communities.
Similarly, in the field of global financial governance, norms of different origin are also becoming increasingly enmeshed. The G20 Financial Stability Board Compendium of Standards is an example of such a site of entanglement. Containing 273 international standards produced by both private and public actors, the Compendium creates order among the many different international standards populating the space of global financial regulation.
Although the entanglement of legalities seems to be a characteristic of global law and instances of enmeshment stand out, a distinct, even deliberate, lack of relationing between bodies of norms is also discernible. International trade law, for example, can be considered a normative order that is deliberately self-referential, compared to environmental law or CSR norms, which often contain numerous references to other bodies of norms.
Beyond Legal Systems and Fragmentation: Is there Another Way of Portraying the Global Legal Order?
One fundamental question lies at the core of the Interface Law Project: how can the global legal order be reimagined through the paradigm of entangled legalities? By addressing this question, the Interface Law Project seeks to develop an alternative way of thinking about global legal order that goes beyond the traditional view of law. Lawyers have traditionally understood the legal order as a coherent and hierarchically structured system, based on a clear separation between the “domestic” and the “international”. The image of a pyramid has been conventionally associated with that idea of “law as a system” and has dominated legal imagination throughout much of the 20th century. But much of the law and legal practices that we see in contemporary global governance seems to escape this traditional conceptualization of order. In the age of global governance, the fluid relationships between bodies of norms require us to develop a new set of tools to capture and unpack complex relationships between bodies of norms (also reminiscent of legal entanglement between religious laws and the politics of empire in the early modern world).
In short, we advance a view of global legal order that dissociates itself from the idea of law as a hierarchical system. In its place, we envision global law as having a fluid, network-like structure. Traditional legal conceptualizations no longer allow us to understand how law operates in the “capillaries” or the “in-between spaces” of global governance. Instead of an emerging global constitutional framework containing overarching principles that regulate the relations between different normative orders, the Interface Law Project proposes the concept of interface norms that structure fluid and shifting relations between different bodies of norms. Interface law (or law at the interfaces) allows us to isolate and describe the form and substance of these interactions through which the global legal order is being negotiated, constructed and contested, as well as enabling us to catch glimpses of the social practices shaping these processes.
“…we observe the emergence of an enmeshed legal order consisting of a plurality of laws and new forms of relationing between them.”
Importantly, the creation of “linkages” or mechanisms of “distancing” between different bodies of norms is often a highly contested process. Similarly, there are power dynamics behind the blurring of legal boundaries or conversely, the retrenchment of separation between normative orders. Who wins and who loses from normative entanglement, disentanglement, ambiguity and the fuzziness of new norms, in a context of legal multiplicity? How do end-users of applicable rules navigate plurality for their own ends? Which norms are left out when entangled webs of norms are created? When norms travel between legalities what is lost in translation, and who are the translators? Workshop participants emphasized the crucial importance of not leaving out these questions of power that underpin the creation of interface law.
Looking at global governance through the prism of entangled legalities and interface norms has implications for how we conceive of the global legal order. Instead of a constitutional or fragmented global legal order, we observe the emergence of an enmeshed legal order consisting of a plurality of laws and new forms of relationing between them. A fresh look at global governance thus reveals an entangled “web” of norms with bonds that are dissolved or strengthened in a constant process of making and unmaking.