What happens when there is an imbalance between the operating and normative systems of international law? One obvious outcome is nothing; the imbalance remains, and the norms of the system are not given full effect. For example, human rights provisions abound, but they can be widely ignored in the absence of enforcement mechanisms. In this article, we identify several other possibilities. Our contention is that adaptations occur that compensate for, or at least mitigate, the effects of the operating-normative systems imbalance. Specifically, we explore four kinds of extrasystemic (at least from the perspective of the international legal system) adaptations: (1) actions by nongovernmental organizations and transnational networks, (2) internalization of international law, (3) domestic legal and political processes, and (4) "soft law" mechanisms. Our contention is that the international legal system is partly kept functioning by these actors and mechanisms, even though they technically fall outside the framework of the international legal system.
Charlotte Ku & Paul F. Diehl,
Filling in the Gaps: Extrasystemic Mechanisms for Addressing Imbalances between the International Legal Operating System and the Normative System,
Available at: https://scholarship.law.tamu.edu/facscholar/431