Identity, Effectiveness, and Newness in Transjudicialism’s Coming of Age

This Article attempts to expose and problematize the ideological connections and normative commitments between these theoretical explanations of effectiveness and the pragmatic process-oriented proposals made in the 1990s when the United Nations was searching for ways to renew the discipline of international human rights law while avoiding the dual risks of politicization and Third World normative fragmentation. The liberal theory of effective supranational adjudication was the culmination of decade-long efforts by American liberal internationalists to provide a theoretical basis for and programmatic proposals towards achieving a more “effective” international human rights regime. Their theory aims at structuring the interface between the universal and regional human rights systems through a reconfigured account of “transjudicialism.” It can be taken to exemplify a particular liberal legal sensibility shared with post-war mainstream human rights lawyers the author calls “transnationalism-legal-process-antiformalism” (TLPAF). TLPAF regards transnational governance through disaggregated processes of cooperation and dialogue in information exchange as instrumental to the development and effectiveness of supranational institutions. Formalist legal structures are, accordingly, rebuffed and displaced by the specification and enforcement of substantive human rights norms through informal, teleological procedural mechanisms.