International law and sociolegal scholarship: Toward a spatial global legal pluralism

At a recent conference on international law at UConn law school, I was intrigued by a talk on the bottom-up production of international law. Janet Koven Levit, whose article is published in the Yale Journal of International Law, argued that she was describing a process quite different from that normally told by international law scholars. The common approach to understanding international law is to tell a top-down story of states' treaty-based commitments or an intergovernmental organization formed by treaty. Insofar as there is a discussion of process, it focuses on diplomats in luxurious sites fine-tuning the language of a treaty. Yet, there are also forms of international lawmaking happening as practitioners figure out how to handle problems on a day-to-day basis. As they do so, they create and interpret rules, producing their own informal rules and practices. These ultimately become as much law as those based on top-down treaties. Levit says that there are many situations in which practice-based ways of doing things gradually become law. In the terminology of international law, “soft law” becomes “hard law.” Soft law refers to a wide range of international instruments, communications, informal agreements, memoranda of understanding, codes of conduct, or “gentlemen's agreements,” whereas hard law comprises international rules and norms that are at least technically binding. Levit looks at three little-known institutions in the world of international trade finance, one of which is the International Union of Credit and Investment Insurers (Berne Union), a nongovernmental organization that regulates export credit insurance policies for its members, both public and private export credit insurers. Some of the rules developed by this organization have been adopted by formal international lawmaking institutions, transforming them into hard law. Yet, she notes that these rules have never been written about because the Berne Union rules have been accessible only to members. Indeed, she had a great deal of difficulty getting access to the organization, which resisted her inquiries.