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affirmative action


Published in Law in Context, v. 15, 1997, p. 11-50.


The use of the conjunction 'and' rather than the preposition 'in' in the title of this essay is intended to convey both the descriptive limitations of the subject matter as well as the breadth of its potentialities. International law and its practitioners have devoted little attention to issues of affirmative action and currently dominant epistemic trends do not suggest any significant shift in focus occurring soon. By contrast, municipal proponents of affirmative action in countries such as the United States, embattled as they are in defending an increasingly controversial policy, have tried to bolster their arguments by reference to international law (Park, 1987; Anaya, 1994; Stark, 1996). In some ways, this unequal form of exchange prefigures what is most problematic about the evolution of norms in international law and of theories of affirmative action. This essay is a preliminary effort at excavating the implicated dilemmas and at offering some tentative guideposts for future discussions.