what can international relations earn from … h. carnell professor of law ... 1719 n. broad street...

WHAT CAN INTERNATIONAL RELATIONS LEARN

FROM INTERNATIONAL LAW?

Jeffrey L. Dunoff

Laura H. Carnell Professor of Law Director, Institute for International Law & Public Policy

Temple University Beasley School of Law 1719 N. Broad Street Philadelphia, PA 19122

E-mail: [email protected]

Mark A. Pollack Professor of Political Science and Jean Monnet Chair

Temple University Department of Political Science

461 Gladfelter Hall Philadelphia, PA 19122 United States of America

E-mail: [email protected]

Paper prepared for presentation at Princeton University, February 25, 2013. This is a first draft. Comments are welcome, but please do not circulate or cite without permission.

© 2013

What Can International Relations Learn From International Law? 1

WHAT CAN INTERNATIONAL RELATIONS LEARN FROM

INTERNATIONAL LAW?

Jeffrey L. Dunoff*

Mark A. Pollack**

International Relations (IR) has long enriched itself by

drawing conceptual frameworks and theoretical insights from cognate disciplines – with one curious exception. IR scholars are centrally concerned with the causes and consequences of international cooperation and, increasingly, international legalization. International lawyers share these scholarly preoccupations, and so one might imagine that scholars from international law (IL) and IR would share overlapping research interests and scholarly agendas, and commonly draw upon insights from the other field. In fact, however, the two disciplines were estranged for much of the 20th century, and developed along parallel but rarely intersecting paths. Although the mutual neglect between international law and politics began to ebb with the end of the cold war, and a vibrant IL/IR literature has emerged in the past two decades, the intellectual terms of trade in this literature have been strikingly asymmetrical. Specifically, most IL/IR writings involve the application of IR theories and methods to the study of international legal phenomena, with little or no attention to the potential contribution of international legal scholarship.

To the extent that IR scholars consider international legal theory at all, it is often to dismiss it as unhelpful, because it is thought to be either unduly narrow in its focus upon the language of international legal texts; politically naïve in devoting substantial attention to unenforceable legal rules but failing adequately to account for power; or methodologically suspect, as legal writings

* Laura H. Carnell Professor of Law and Director, Institute for International Law & Public Policy, Temple University Beasley School of Law. ** Professor of Political Science and Law and Jean Monnet Chair, Temple University. © 2013

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What Can International Relations Learn From International Law?

are often prescriptive (urging reform of legal rules or institutions) but rarely positivist (in the social-scientific sense of empirically testing causal claims about the world). In short, legal scholarship is seen as excessively formalist, and legal thought is often condemned for paying undue attention to the language of legal rules and insufficient attention to the practical realities and inevitable tradeoffs that drive international affairs.

Ironically, by failing to account for what lawyers know about international law, IR scholars may themselves unwittingly embrace a type of formalism that is insufficiently attentive to the practical realities and theoretical complexities of the international legal order. For example, contemporary IR accounts of international law-making are dominated by a rational design approach that focuses almost exclusively on treaties and formal institutions. This approach has generated important insights, but overlooks many dimensions of institutional design that are of central importance to states, and ignores significant non-treaty law-making processes, including the push and shove of customary international law formation.

Similarly, IR analyses of international legal interpretation focus almost exclusively on the behavior and independence of international courts, misleadingly overlooking the numerous other sites where interpretation and application occurs, including committees, councils, and other subsidiary treaty bodies. Such studies also tend to reduce international judicial behavior to a single dimension of dispute settlement – does the court rule for or against state x? – and largely neglect the other dimensions of judicial decision-making, including the interpretative choices that can determine not only individual judicial rulings but also the development of international law over time. Perhaps most importantly, IR studies of law application ignore the ways in which diverse actors use international legal arguments as a resource when advocating for specific policy outcomes in both internal and international political fora.

Finally, IR studies of compliance often assume implicitly that international law consists of a series of unambiguous legal rules embedded in international agreements, and that international law’s effects are most relevantly measured in terms of state behavior that is (or is not) consistent with the terms of these rules.


But this formalist view of international law fails to account for the wide variety of ways in which law is indeterminate; the ways in which various actors use that indeterminacy; and the diverse mechanisms through which international law influences both states and non-state actors.

In short, while IR writings have made enormous contributions to our understanding of international legal phenomena, when viewed from a perspective informed by current international legal thought, IR accounts of international law-making, interpretation, and compliance are notable for their occasional unwitting formalism, which in turn produces a number of significant and persistent blind spots. As a result, IR scholars often present a skewed picture of IL, which necessarily produces a partial and misleading understanding of law and its effects on states and the international order. We believe that IR scholars can remedy these defects by drawing upon the theoretical frameworks and empirical analyses of their counterparts in law. Hence, the purpose of this paper is to begin a process of enriching IR understandings, by exploring what the discipline of international relations can learn from the discipline of international law.

To do so, this essay proceeds in three parts. Part I explores why IR scholars have typically not drawn on IL thinking. It begins with a thumbnail history of the relationship between the disciplines. As is well known, the two fields were once in close dialogue, but became estranged during the post-War era. Understanding what triggered this estrangement, and the nature of the recent rapprochement, sets the stage for our discussion of how IR scholars can benefit from engaging with traditional and new thinking in international law. However, disciplinary politics does not fully explain why IL writings have not been influential. Thus, Part I also surveys the epistemological obstacles to the use of international legal thought by political scientists, including law’s strong orientation toward normative and prescriptive scholarship. Despite these differences, we believe that legal scholarship offers IR scholars significant conceptual, empirical and normative insights.

Part II begins to identify those insights by providing a brief primer on leading approaches to international law, with particular emphasis on the most influential theoretical approaches developed in the past half-century. This primer is designed to be a user-

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friendly introduction to the major strands of international law thinking and the work of its leading contributors, demonstrating that the common image of international legal scholarship as overly formalistic and blind to political realities is obsolete, at best, and that IL scholarship offers important insights into issues that political scientists care about.

Part III turns more directly to how international legal writings can advance IR thinking. In particular, we discuss three broad areas of inquiry – the making, interpretation, and enforcement of international law – where international law approaches can make a distinctive contribution to IR scholarship. With respect to each area of inquiry, we identify areas where knowledge of international legal scholarship would enrich political scientists’ study of law, and we identify instances of “best practice” in which scholars from both professions have already begun to integrate legal scholarship and categories of analysis with the theoretical, epistemological and methodological contributions of political science.

International relations scholars should thus understand this paper as a “prospectus,” or as an introduction and invitation to use international law theory, in much the same way that a previous “prospectus” in a legal journal introduced IR theory to international law scholars more than two decades ago (Abbott 1989; in the same spirit, see Hafner-Burton, Victor and Lupu 2012). Our aim in doing so is emphatically not that to suggest that international legal scholarship is superior to work in political science. Rather, we urge IR scholars to draw upon IL (and IL scholars to draw upon IR) to promote research that self-consciously uses knowledge, insights and methodological tools from both disciplines to develop a richer understanding of the causes and consequences of international cooperation.

I. WHY HAVE IR SCHOLARS NOT UTILIZED IL SCHOLARSHIP?

At the outset, it is worth highlighting how curious it is that international relations scholarship devotes so little attention to international legal thought. After all, scholars in the two disciplines tend to cover much the same intellectual territory, and international lawyers are generally well acquainted with the dominant


conceptual approaches used in IR writings. Why are IR scholars, in general, not similarly familiar with leading conceptualizations of the international legal order used by legal scholars?

While there are surely many contributing factors, we offer two complementary perspectives below. The first is rooted in the sociology and politics of the two disciplines. The second is rooted in different disciplinary approaches to the question of epistemology. Together, they help explain why the interdisciplinary terms of trade have, to date, been strikingly asymmetrical.

A. The Fall and Rise of IL/IR

As the history of disciplinary relations has been ably described by Anne-Marie Slaughter, Robert Keohane and others,1 we provide only a capsule review here. During the first half of the 20th century, the disciplines of IL and IR overlapped substantially. However, this era of disciplinary convergence came to an end with the cataclysm of World War II. The war led many leading political scientists to reject the “idealism” associated with inter-war scholarship (Carr 1939; Kennan 1951: 95). These so-called “realists” argued that, in the absence of centralized enforcement mechanisms, it was folly to believe that international agreements could meaningfully constrain state action (Morgenthau 1958). As this realist approach gained dominance within political science, the study of international law was marginalized within the field, leading to a decades-long mutual estrangement between the two disciplines.

Ironically, realism’s ascendance eventually triggered the intellectual developments that would lead each discipline to “rediscover” the other, albeit decades later. Within international law, the realist critique powerfully challenged international law’s raison d’être. In response, international lawyers developed new approaches designed to demonstrate international law’s practical relevance to international affairs. As Slaughter explains, these efforts involved three central analytic moves: “First, all [the efforts] sought to relate law more closely to politics . . . . Second,

1 For fuller accounts of this history, see Slaughter 1993: Keohane 1997.

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as part of this mission, all redefined the form of law, moving in some measure from rule to process. Third, all reassessed the primary functions of law. Whereas rules guide and constrain behavior, . . . processes perform a wider range of functions: communication, reassurance, monitoring and routinization” (Slaughter 1993: 209).

Realist claims also triggered a series of developments in political science. One important development came from the subfield of international organizations with the rise of the study of “international regimes,” understood as “sets of implicit or explicit principles, norms, rules and decision-making procedures around which actor expectations converge in a given issue-area” (Krasner 1982: 185). Roughly contemporaneously, Robert Keohane and others began to draw on rational-choice premises to develop a “functional” theory that understood regimes as a product of states’ rational pursuit of their own self-interests (Keohane 1984). This institutionalist approach argued that regimes enhance the likelihood of inter-state cooperation by reducing transaction costs, generating information, reducing uncertainty, and increasing expectations of compliance.

Kratochwil and Ruggie’s (1986) focus on the intersubjective understandings associated with international regimes sparked approaches that were more sociological and contextual, and less materialistic and strategic. Eventually, a constructivist school emerged, which viewed international law as shaping understandings of interests, perceptions of legitimate behavior, and the nature of justificatory discourse in international affairs (Ruggie 1998; Wendt 1999; Brunnée and Toope 2000; Reus-Smit 2004). Moreover, by the early 1990s, liberalism had emerged as a distinctive and coherent theory of international relations (Moravcsik 1997). This approach focuses “on the demands of individual social groups, and their relative power in society, as a fundamental force driving state policy and, ultimately, world order” (Moravcsik 2013).

Hence, by the turn of the century, a series of analytic developments internal to each field created the conceptual tools and intellectual space for scholars in each discipline to draw upon insights associated with the other. At roughly the same time, external events – in particular the end of the Cold War and the


apparent revitalization of many international legal norms and institutions and the proliferation of international courts – raised numerous research questions of interest to scholars from both fields, resulting in several high-visibility calls for interdisciplinary IL/IR research.

Kenneth Abbott’s Modern International Relations Theory:

A Prospectus (1989) launched the current interdisciplinary dialogue. This paper argued that the ascendance of regime theory and related theories of international cooperation “offers a long-overdue opportunity to re-integrate IL and IR” (p. 338). Abbott introduces international lawyers to key IR concepts, including collective action problems and economic and political market failures. He urges international lawyers to use these conceptual tools to become “functionalists” rather than “formalists,” to better understand international cooperation. Four years later, Anne-Marie Slaughter (Burley) echoed Abbott’s call in International Law and International Relations Theory: A Dual Agenda (1993), published in the AMERICAN JOURNAL OF INTERNATIONAL LAW, perhaps the field’s preeminent journal. The article reviews in considerable detail the post-war trajectory of the two disciplines summarized above, and then invites international lawyers to apply “institutionalist” and “liberal” IR approaches to international legal phenomena.

On the IR side, IL/IR arrived via a special symposium issue of INTERNATIONAL ORGANIZATION devoted to “Legalization and World Politics” (Abbott et al. 2000). Unlike the seminal articles in legal journals, the Legalization volume is not an explicit call for others to engage in interdisciplinary work. However, the prominence of the authors and journal clearly signaled to political scientists that international legal phenomena were worthy of sustained scholarly attention.

These publications, however, along with virtually all of the early IL/IR writings, employ a very particular form of interdisciplinarity. For example, although the Prospectus claims that “IL and IR have much to contribute to each other,” it quickly becomes clear that the two disciplines’ respective contributions are quite distinct: “The opportunity to integrate IL and IR stems… from the analytical approaches, insights and techniques of modern IR theory, which can readily be applied to a variety of legal norms and institutions. . . . For its part, IL can offer modern IR scholars

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an immense reservoir of information about legal rules and institutions, the raw material for growth and application of the theory” (339-340). Slaughter presents much the same argument. Although the term “dual agenda” might suggest a two-way street in which scholars from both fields learn from each other, in fact both elements of the “dual agenda” run in one direction – from IR to IL. Slaughter’s intended audience is international lawyers, and this group is advised to pursue both “the Institutionalist road to interdisciplinary collaboration” and “the application of ‘Liberal’ international relations theory to law within and among nations” (206-207).

The structure of the argument in the Legalization volume is substantially similar. The volume’s organizers claim that their framework is “able to unite perspectives developed by political scientists and international legal scholars and engage in a genuinely collaborative venture” (387). Yet, once again, to be “collaborative” is not necessarily to contribute equally. The volume’s introduction notes that international law has “chronicled and categorized th[e] ‘move to law’ but has largely failed to evaluate or challenge it.” The authors claim that “approaches from political science should be more helpful in explaining the puzzle of uneven legalization” (388) and the volume’s contributors provide political science-based explanations of international legalization.

In short, in each of these canonical statements – and, to a large extent, in the subsequent literature – the intellectual terms of trade are highly unequal, consisting primarily of the application of the theories and methods of political science as a discipline to the study of international law as a subject. Indeed, it is striking that the most recent, authoritative review of IL/IR scholarship is framed as “a fresh survey of what political science has learned that may be of special interest to international lawyers” (Hafner-Burton, Victor and Lupu 2012). Reading this literature, we might easily come away with the view that international legal scholars offer only factual knowledge of the substance, the “raw material,” of international treaties and judicial decisions, but no distinctive theoretical or methodological insights, which are seen as the exclusive province of political science.

One goal of this paper, however, is to challenge this vision of interdisciplinarity. As we demonstrate below, international legal


scholars have produced a rich and sophisticated theoretical literature. These writings have the potential to dramatically enrich political science scholarship on international law, in ways that go far beyond the simple provision of factual information on the content of the law.

B. Epistemological Tensions

Disciplinary politics does not provide a complete account of why IL scholarship has had such limited influence on IR scholars. A more serious potential divide between political science and law, already hinted at in the previous section, is epistemological, relating to the aims of scholarship and the means whereby scholars establish the validity of their theories and learn about the empirical world. Within international relations, and political science more broadly, it has become common to argue that the modal approach is positivist, in the scientific rather than the legal sense of that term. While definitions of positivism have also proliferated in political science, we would follow Hollis and Smith (1990: 12), who associate positivism with “the stress…on experience (on observation and testing) as the only way to justify claims to knowledge of the world, and hence on methods of verification as the key to the meaning of scientific statements.” This embrace of positivism has not, of course, been universal, challenged in recent years by “post-positivist” scholars, yet there is a more widespread epistemological consensus within the field on positivism, broadly construed, than on any substantive theory of international politics. The field’s mainstream, including most of the key journals in the United States, accept the key tenets of positivism.

By contrast with political science, traditional legal scholarship appears both more diverse and less systematically self-aware on the question of epistemology. In a provocative essay, comparative law scholar Geoffrey Samuel (2009: 432) asks, “Should social scientists take law, as it has been constructed by history, seriously as a modern intellectual discipline?” Samuel generally argues that we should not do so, largely on epistemological grounds. The social sciences, Samuel argues, generally pursue a broadly positivist “enquiry paradigm,” which judges the validity of scientific claims against “external” sources of evidence, and such an approach has made some degree of

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headway in the legal community in the form of legal realism and socio-legal scholarship, particularly in the Anglo-Saxon world. By contrast, he continues, much legal scholarship – particularly but not only in countries with a civil-law tradition – adopts an “authority” paradigm, in which the legal text is taken as authoritative, and the study of law is explicitly “internal” to these legal sources. By contrast with the “externalist” epistemology of the social sciences, Samuel argues, doctrinal, formalist, or “black-letter” legal approaches determine the validity of legal claims internally, with respect to the law itself.

To his credit, Samuel does not present a monolithic view of law as a uniformly internalist discipline. “Nevertheless,” he argues, “if one looks at the current literature on bookshop and library shelves, in both the civil law and common law countries, a considerable proportion is devoted largely to descriptive work on various areas of the law” (Samuel 2009: 433), and this internalist scholarship, he continues, has little to offer to empirically oriented social scientists.

To some extent, we agree with Samuel’s analysis of much traditional international legal scholarship, which does indeed pursue different aims than positivist social science scholars. Indeed, most mainstream legal scholarship has three primary aims. One is “rationalization,” or demonstrating that international law-making and application occurs in a coherent and rational way. Work in this vein includes summarizing case law, unveiling common underlying elements in apparently disparate collections of legal materials, harmonizing apparent doctrinal inconsistencies, and the like. A second common aim consists of “justification,” or the demonstration that legal doctrines or decisions are related to some plausible conception of the good. Third, traditional legal scholarship is often “prescriptive.” That is, most mainstream legal scholarship analyzes existing legal practice to identify its shortcomings, and proposes doctrinal or institutional reforms designed to improve practice.

Hence, positing and testing causal claims is not a primary aim of traditional legal scholarship. Even “realist” scholars who view legal doctrine as rooted in larger social phenomena rarely adopt a logical positivist epistemology common to social science, and virtually all contemporary legal theorists combine descriptive


empirical aims with normative critique and/or advocacy. Thus, many of the legal approaches outlined in Part II below never attempt the kind of empirical testing of claims that are the epistemological standard for much, but not all, of the IR field.

That said, contemporary legal scholarship is no longer centrally preoccupied with doctrinal analysis. As noted above, the realist challenge prompted the rise of process-based theories that focus on the legal system as a structure of decision-making processes rather than as a set of rules. Moreover, as explained more fully below, much modern legal scholarship incorporates, and extends, insights from a variety of perspectives, including feminism, economics, sociology and other fields.2 Thus, the traditional IR critique of IL thought as excessively doctrinal and formalist is simply outdated and inaccurate. Indeed, as we shall attempt to show, international legal theory is diverse, creative, and offers categories of analysis and testable claims that are ripe for consideration, integration, and, potentially, empirical testing by political scientists. To that end, we now turn to a brief summary of major traditions of international legal thought.

II. A VERY BRIEF INTRODUCTION TO INTERNATIONAL LEGAL

THEORY AND METHODS

In the pages that follow, we offer an introduction to major traditions of international legal thought. Of course, it is not possible to summarize all of the major theoretical approaches in this short essay; instead we focus on a handful of the most influential and enduring approaches. We begin with short discussions of two of the oldest and most important approaches to international law (and law generally), natural law and positivism. We then briefly describe a handful of approaches that have become

2 In addition to these theoretical frameworks, we would emphasize, a growing body of empirical legal studies scholarship has demonstrated an impressive and increasing methodological rigor over time, even according to the demanding and contentious standards of inference put forward by positivist social scientists (see the excellent review of empirical IL scholarship in Ginsburg and Shaffer 2012). Our aim here, however, is not to redeem legal scholarship by appealing to the relatively recent wave of empirical legal scholarship, much of which has been undertaken by IL/IR scholars, but rather to suggest that traditional international legal theorizing, despite its epistemological differences with mainstream political science, nevertheless has a great deal to offer to the latter.

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prominent in recent decades, including the New Haven School; international legal process; rationalist approaches (including law and economics and IL/IR); critical schools; and a trio of emerging descriptive and normative approaches.

Before doing so, a few disclaimers are necessary. First, we present only a partial account of international legal thinking. In particular, we limit our focus to what might be considered mainstream international legal scholarship published in leading U.S. and European journals. Moreover, given space constraints, we necessarily summarize large bodies of thought rather rapidly and breathlessly, doubtless shearing them in the process of many of their strengths and subtleties. Although we present the various approaches in rough chronological order, we do not mean to suggest that the various traditions represent a linear development, or even a sequence of different periods that neatly follow one another. In fact, today the traditions outlined below co-exist, if sometimes uneasily, and many scholars draw insights from several approaches. In this sense, the theoretical pluralism of IL scholarship provides an echo of the similar pluralism in contemporary IR theory.

A. Natural Law Theory

Although most ancient civilizations, including China, India, Egypt and Assyria, produced rules of inter-state conduct, “modern” international law is generally considered to have emerged in the aftermath of the Thirty Years War, which ended with the 1648 Peace of Westphalia. The “classical” writers of this era – such as Vitoria, Gentili, Grotius, and Pufendorf – devoted substantial energies to conceptualizing and justifying the emerging “law of nations.” In general, these writers argued that rules governing relations between states were based on natural law, or fundamental principles of right and wrong that can be derived from “right reason;” in Grotius’s words, “the law of nature is a dictate of right reason” (1625). For many of the early writers, these fundamental principles were derived from moral philosophy and theology, and in particular from early and medieval Christian thought.

Over time, natural law thinking fell into disfavor. In part, this shift reflects a broader displacement of religion as a source of authority. But in large part it reflects the abstract nature and


malleability of natural law principles. For example, Grotius argued that freedom of the seas was a basic principle of natural law; roughly contemporaneously, John Selden published a famous natural law defense of the closed sea. Centuries later, natural law would be invoked on both sides of debate over the legality of slavery. Natural law’s indeterminacy proved its undoing: “the vagueness of the principles which naturalists deduced from their premises and sources was found ultimately to lead to the downfall of this method. It did not take statesmen and the naturalists employed by them long to reduce international law to an ideology of raison d’etat . . .” (Schwartzenberger 1965).

Despite the general repudiation of natural law approaches, elements of natural law reasoning remain relevant today. As Murphy (2006) notes, many of international law’s most fundamental norms – such as pacta sunt servanda (treaties must be performed in good faith) and jus cogens norms such as the ban on genocide or torture – seem to be grounded on something akin to natural law principles. And many modern treaty provisions – such as the UN Charter’s general prohibition on the use of force, and the Geneva Convention rules against the mistreatment of civilians – find roots in theological concepts that date from the natural law era. Finally, a type of natural law thinking is sometimes invoked to fill gaps in the law or decide cases that rules do not seem to reach. As one commentator notes, “[l]ike a modern constitution, the international legal order comprises not only principles and rules, but also basic values which permeate its entire texture, capable of indicating the right direction when new answers have to be sought for new problems” (Tomuschat 2001). Thus, even contemporary international law contains various traces of its natural law heritage.

B. Legal Positivism

Natural law approaches were eventually supplanted by legal positivism, which holds that “international law is no more or less than the rules to which states have agreed through treaties, custom, and perhaps other forms of consent” (Ratner and Slaughter 1999: 293). Under this approach, states create international law through their affirmative (or “positive”) acts, and international legal norms are binding upon states because states have consented to those norms (Murphy 2006). The positivist view is well

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captured in a passage from the Permanent Court of International Justice’s decision in the Lotus case:

International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.

For positivists, then, international law is a system of rules that sovereign and equal states develop to regulate interactions among themselves. Thus, unlike natural law discourse, positivist analysis has little to do with philosophy or theology, but instead largely consists of the elaboration, analysis and critique of authoritative legal texts.

The positivist understanding suggests what we might call an “internal” approach to understanding law. In this understanding, the careful and sustained study of legal text is sufficient to provide an adequate understanding of law, and hence there is little need for knowledge or skills from other disciplines, such as the social sciences. The internalist perspective also implies that “the very point of studying law is to further the enterprise of deciding cases and justifying legal doctrines . . . . [T]he goal is to move the enterprise of law forward” (Balkin and Levinson 2006: 162). Thus, much positivist analysis offers recommendations or prescriptions to judges, legislators, and other legal actors. This is particularly true in the international field, where it is broadly understood that a principal task of “the invisible college of international lawyers” is to advance “la conscience juridique” and to strengthen the role of international law in pursuit of its goals of international peace and justice (Schachter 1977).

C. The Legal Realist Critique

While jurisprudential debates between natural law theorists and positivists persist, many legal scholars, including most


international law scholars, have moved well beyond these approaches. In part, the impetus for this movement came from a series of critiques that so-called “legal realist” scholars launched against the positivist focus on rules and legal text.3 Echoing a charge originally made against natural law approaches, the legal realists argued that positivist legal rules are often too indeterminate to generate particular results in specific disputes; in Oliver Wendell Holmes’s famous articulation, “General propositions do not decide concrete cases.” The legal realists argued that legal rules are rationally indeterminate, first, because they do not cover all fact patterns, and obviously cannot determine judicial decisions in areas they do not reach. Second, rules inevitably contain gaps and lacunae. And third, many legal standards are sufficiently ambiguous or abstract (“act in a reasonable manner”) that they admit of various applications in any particular circumstance. Legal realists also claimed that the law is causally or explanatorily indeterminate; precisely because the law is rationally indeterminate, legal reasoning cannot explain why courts decide cases the way they do. As a result, realists claimed, it is necessary to look beyond the law itself to explain judicial decisions. For these, and related reasons, legal scholars began to shift from a focus on law as rules to law as a series of decision-making procedures.

International law scholars developed two significant process-based approaches, the New Haven School and international legal process. Although there are important differences between these two approaches, both direct our attention to the myriad processes and fora through which transnational actors assert international legal claims. Both schools teach that, through these iterative processes, international norms and claims of legal authority are brought to bear on transnational actors’ behavior.

D. The New Haven School

The New Haven school was founded by two Yale professors: Myres McDougal, a lawyer, and Harold Lasswell, a political scientist. It has since been elaborated and developed by a

3 For an excellent history of the American legal realist movement, see Horwitz 1992; for an application to international law, see Nourse and Shaffer 2009.

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number of prominent practitioners and scholars, including W. Michael Reisman and Dame Rosalyn Higgins, a former judge on the International Court of Justice. Yale Law School was the intellectual home of legal realism, and the New Haven School adopted core legal realist insights, including “its critical focus on the interplay between rules and social process in the enunciation of law in authoritative form . . . into a comprehensive framework of inquiry” (Falk 1995). Like their domestic realist counterparts, the New Haven scholars intended to criticize positivist understandings, and the formalistic textual approaches associated with it. In its place, this approach developed “a functional critique of international law in terms of social ends . . . that shall conceive of the legal order as a process and not as a condition” (Pound 1932). Moreover, the New Haven approach broke with positivism’s “internalist” sensibility by explicitly analyzing international law using tools from political science and other disciplines, and by expressly locating international law within larger social and political processes.

New Haven scholars thus focus less on rules than on process; McDougal and Lasswell “consistently argued that international law is not just a body of rules, but a process of authoritative decisionmaking” (Koh 2007). Within that decisionmaking process, McDougal and Lasswell wrote, “our chief interest is in the legal process, by which we mean the making of authoritative and controlling decisions” (McDougal and Lasswell 1959). Years later, Reisman would claim that international law is a “process of communication” and argue that this communications model “liberates the inquirer from the . . . distorting model of positivism, which holds that law is made by the legislature.” For Reisman, “any communication between elites and politically relevant groups which shapes wide expectations about appropriate future behavior must be considered as functional lawmaking” (Reisman 1981).

For New Haven scholars, international law’s processes were connected to a set of normative values, including respect, power, enlightenment, well-being, wealth, skill, affection and rectitude. International rules and institutions could thus be evaluated and criticized with respect to “the basic values of human dignity or a free society,” in order to advance “a more peaceful,


abundant, and just world – a world community of human dignity” (Chen 1989: 210).

While the New Haven approach has been criticized for insufficiently distinguishing law from politics, and for its occasionally dense terminology, it continues to exert an important influence on international legal scholars. A recent symposium explored whether there is a “new” New Haven School, and how the original McDougal and Lasswell framework can be fruitfully applied to contemporary developments, such as the increasing role of non-state actors (Dickinson 2006) and the emerging transnational dialogue among various international and domestic courts (Waters 2005; Ahdieh 2004).

E. International Legal Process

The New Haven School conceptualized international law as part of larger social and political processes; at roughly the same time a competing school emerged which also viewed international law as process, but with a focus on the “international legal process.” Pioneered by Harvard Law School Professor and former Acting State Department Legal Adviser Abram Chayes, along with Thomas Ehrlich and Andreas Lowenfeld, the international legal process school sought to determine “[h]ow – and how far – do law, lawyers, and legal institutions operated to affect the course of international affairs? What is the legal process by which interests are adjusted and decisions are reached on the international scene?” (Chayes, Erlich and Lowenfeld 1968: xi).

The intellectual roots of this approach can be found in a branch of domestic legal process thinking associated with Henry Hart and Albert Sachs, of Harvard, and Herbert Wechsler, of Columbia Law School. This branch of legal process theory focuses primary attention on who is, or ought to be, empowered to render a given legal decision, and how that decision is, or ought to be, made (Amar 1989). In domestic law, these questions would revolve around whether a particular question is properly resolved by the federal or the state governments; whether it should be resolved by courts, legislatures, or executive officials; and so on. Under this approach, legal analysis focuses less on what the substantive rule governing behavior is or should be, and more on how substantive rules shape, and in turn are shaped by, the rules, structures, and jurisdiction of different institutions. In short, legal

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process scholars argued that the substantive rules so central to positivist approaches resulted from interactions between actors, institutions, and procedures.

The international legal process school similarly focused on the allocation of decision-making authority across different institutions. Thus, Chayes produced a classic study of the roles international law played in U.S. government decision-making processes during the Cuban Missile Crisis (Chayes 1974) while others produced similar works focused on other international crises. More broadly, the international legal process scholars produced empirically based materials that cut across international law’s traditional doctrinal categories – arms control, international business, international organizations, etc. – and that illustrated international law’s various roles in different dimensions of international affairs. These works illustrate how “the legal process allocates decisionmaking competence between national and international decisionmakers, specifies particular regulatory arrangements for particular subject matters, restrains and organizes national and individual behavior, and interacts with the political, economic, and cultural setting (Koh 1997: 2619). As Chayes (1974: 7) noted, the international legal process approach emphasizes that international law acts “[f]irst, as a constraint on action; second, as the basis of justification or legitimation for action; and third, as providing organizational structures, procedures, and forums” within which political and legal decisions are made.

F. Critical Approaches

The critical “new stream” is yet another approach that builds upon legal realist insights. This approach seeks to uncover and understand “the hidden ideologies, attitudes and structures of international law, so as to expose contradictions or antinomies” of legal doctrine (Murphy 2006:15). Early works in this vein were strongly influenced by deconstruction and other linguistic and literary theories. Thus, David Kennedy produced an important work that focused on the “semiotics” of legal argument, and identified certain “recurring rhetorical structures” or patterns within which legal argumentation takes place, leading to a “grammar” of legal argument (Kennedy 1987). Other contributions


in this school highlight fundamental and enduring contradictions within the international legal system, such as its apparently inevitable oscillation between “apology” – defending and justifying state action – and “utopia” – setting forth aspirational norms for state conduct but lacking the institutional infrastructure to actualize these norms (Koskenniemi 2005).

These new stream works opened up space for other critical approaches, such as feminism and third world approaches to international law (TWAIL). Many feminist scholars examine how international legal norms and structures reflect male dominance in the international system. Although these scholars are often particularly interested in questions of women’s rights, they also seek to uncover and undermine deep structural elements of international law that are insufficiently attentive to the rights and interests of women (Charlesworth et al. 1991; Charlesworth and Chinkin 2000). TWAIL brings a decidedly post-colonial perspective into the scholarly dialogue. These scholars, often hailing from former colonial countries, highlight the ways in which contemporary international law reflects the deep injustices associated with the colonial system, and often advance ideas for addressing North-South imbalances. Early work in this vein focused on sovereignty over natural resources, but more recent work has explored numerous other issues, including North-South dimensions of international environmental, trade, and financial law (Matua 2000).

G. Rationalist Approaches

In various guises, the legal process approaches outlined above have been a dominant influence on post-war international legal scholarship. However, during the past two decades, two prominent rationalist strands have emerged. Since these approaches share much with dominant IR approaches, our discussion of them is relatively brief. The first is “law and economics.” As in its domestic variant, the international law version of law and economics (L&E) consists of the application of economic theories and methodologies to legal issues. One influential application of L&E argued that transactions in international relations are analogous to transactions in private markets (Dunoff and Trachtman 1999). The assets traded in these international “markets” are not the goods and services traded in

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private markets, but rather assets peculiar to states: components of power and authority, including jurisdiction to prescribe (regulate), jurisdiction to adjudicate (use domestic court proceedings) and jurisdiction to enforce. International law can be understood as focusing largely on the definition, exchange, and pooling of this authority (id.). Although L&E approaches have not been nearly as influential in international law scholarship as they have been in domestic legal scholarship, important L&E writings have applied game theoretic insights and public choice theory to questions of treaty law, customary international law, regulation of commons areas such as the atmosphere, and regulatory jurisdiction (Trachtman 2008; Goldsmith and Posner 2005).

The other rationalist strand has already been mentioned: international law and international relations (IL/IR). Abbott’s and Slaughter’s calls for IL/IR research struck a responsive chord, and in the past two decades have witnessed a wealth of IL/IR writings from both lawyers and political scientists. Among other developments, this scholarship has highlighted questions regarding compliance with international legal norms, the stability and effectiveness of legal institutions, and the causal mechanisms through which international influences (or fails to influence) international actors. A forthcoming edited volume of essays by leading scholars in the field takes stock of this scholarship (Dunoff and Pollack 2013; c.f. Hafner-Burton, Victor and Lupu 2012). As noted above, however, much of this literature follows Abbott and Slaughter in applying the theory and methods of IR to the study of IL, whereas our aim in this article is to focus on the other direction of influence – namely what IL can add to the study of IR – and so we retain our focus here in the further development of international legal theory.

H. Newly Emerging Approaches

Within the past decade, legal scholars have developed three new conceptual frameworks – global administrative law, international constitutionalism, and global legal pluralism – for understanding and critiquing international law. The first approach, global administrative law (GAL), argues that much modern global governance takes the form of regulation and administration that occurs outside of high-profile diplomatic conferences or treaty


negotiations and in less visible settings that constitute a “global administrative space.” GAL describes these little known international, transnational and domestic processes, and urges that they be reformed along lines that advance transparency, consultation, participation, and reasoned decision-making (Kingsbury, Krisch and Stewart 2005).

GAL offers an intriguing challenge to conventional ways of understanding the international legal system. Conventional approaches rest on certain fundamental dichotomies – such as the distinctions between international and domestic law, and between public and private governance – that GAL problematizes. GAL scholars highlight the ways that different types of actors and different layers of governance together “form a variegated ‘global administrative space’ that includes international institutions and transnational networks, as well as domestic administrative bodies that operate within international regimes or cause transboundary regulatory effects” and that transcend the traditional distinctions between public and private, and national and international (Kingsbury 2009). Through their richly textured analysis of many little-known international legal processes and their impressive conceptualization of a diverse set of practices across a wide range of otherwise disparate areas of global governance, the GAL scholars have already made important contributions to our understanding of current governance regimes.

International constitutionalists present an alternative approach that urges the application of constitutional principles to improve the effectiveness and fairness of the international legal order (Peters 2009; Tomuschat 1997). Constitutionalist approaches vary widely in the scope of their ambitions; the most far-reaching of the constitutionalist visions attempt to set out a fully justified global order (de Wet 2006). However, even in its more modest guises, the constitutionalist turn can be understood as an effort to give the largely unstructured and historically accidental order of global governance a rational, justifiable shape (Dunoff and Trachtman 2009a).

Within this rapidly growing literature several strands have emerged. One is “functional constitutionalism” which focuses on “secondary rules” of international law, or rules that enable or constrain the creation of international law (Dunoff and Trachtman 2009b). This functionalist approach joins a “normative”

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constitutionalist approach that emphasizes human rights and judicial review in international institutions (Petersmann 2008), and more ambitious approaches that call for a legalization of transnational politics (Held and Kumm 2004), or set out visions of a global order governed by an identifiable constitutional text (Fassbender 2009).

A third emerging conceptual approach to international law is global legal pluralism. This approach is the intellectual heir to earlier sociological and anthropological examinations of the legal pluralism that resulted from the interactions between official and non-official law, often in colonial settings. In its more recent international law iterations, legal pluralism highlights the simultaneous existence of numerous semi-autonomous global and regional functional legal orders. Thus, pluralism recognizes the coexistence of multiple official systems of law, all potentially applicable to any particular international transaction, and the dialogues among judicial and non-judicial actors within these systems (Berman 2012).

Legal scholars have just begun to explore the relative merits of these approaches (Dunoff 2010; Krisch 2010), and a comparative analysis is beyond the scope of this paper. For current purposes, it is sufficient to note that each of the emergent approaches captures and subjects to sustained examination subjects that are largely ignored by political scientists, or examined from very different perspectives.

I. Some Early Lessons of IL Theory

As suggested by the thumbnail presentations above, contemporary international legal scholarship provides a rich array of theories, methods and approaches to international legal phenomena. Indeed, so diverse is this scholarship that any effort to derive lessons from across all of IL scholarship would be artificial, and in Part III of the paper, below, we identify value-added insights for political scientists drawn from specific theoretical traditions. Nevertheless, as prelude to that analysis, we can identify five general observations or insights that emerge from this broad-brush tour of the literature.


First, legal rules and norms are not simply instrumental, but also normative. Law is normative insofar as it provides its addressees with reasons for acting as directed. This normative approach to law stands in stark contrast to the much more instrumental view of law found in much IR scholarship. Under conventional IR understandings, law contains guidelines for action; it tells its addressees what to do or what not to do. The normative understanding also problematizes efforts to link norms causally to changes in behavior. Law’s normative dimension means that law can “guide,” “inspire,” “justify,” or “legitimate” behavior.” This is perhaps most obvious in Franck’s familiar discussion of law’s “compliance pull” (Franck 1990), but the appeal to law’s normativity is a more general feature of international legal scholarship. This perspective suggests one important way that law influences outcomes, but it is exceedingly difficult to measure or quantify the extent to which law “caused” certain behavior.

Second, legal rules and norms are often indeterminate – not just in the ordinary sense that they are vague or abstract, but in the more specific sense that, even in the eyes of legal scholars and practitioners, they are often sufficiently vague that they cannot determine definitively the legality of illegality of an action. This feature of international law is hinted at in the framework of the legalization volume, where precision serves as one of the three primary dimensions of legalization, yet in practice much IR scholarship treats international rules as relatively clear and determinate, and the determination of state compliance with those rules as a fairly straightforward exercise. International legal scholars, by contrast, understand that all law, including in particular international law, leaves considerable discretion to those actors – including, but not limited to, international courts – who interpret and apply international legal rules and norms to the concrete fact patterns of state behavior.

Third, legal rules and norms are plural, in the sense that multiple legal norms, often emitting from multiple, overlapping functional or regional regimes, can apply to a situation (and can, at times, conflict). To be sure, political scientists have recognized and theorized in sophisticated ways about this process of “regime complexity,” focusing in particular on the strategic behavior of states engaging in forum-shopping and regime-shifting in a context of institutional proliferation. The legal literatures on “legal

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fragmentation,” “legal pluralism,” and “conflict of laws” overlap in part with this political science literature, but focus more intensively on the implications of fragmentation for legal interpretation by international courts, which as we shall see have responded to this challenge in different ways.

Fourth, understanding law as simply a set of rules and norms is often insufficient. Instead, in many contexts, law can more profitably be theorized in terms of process. Law, in this view, is not simply a set of rules with which states can choose to comply or not to comply, but rather it involves a commitment to a set of processes in which claims and counter-claims are put forward, and their validity assessed, in the language of the law. Law matters, in this view, not because it provides clear and unambiguous standards for state behavior, but because it channels actors’ behavior and responses into specific legal and institutional channels, such as international institutions and courts, which delegitimate naked appeals to power and require states to argue their case in law’s distinctive idiom.

Fifth and finally, international legal scholars do not, as many political scientists may believe, ignore power, although they can and do often conceive of power in ways that differ systematically from the perspectives of political scientists. Scholars from the New Haven and International Legal Process schools, for example, understand law as both a constraint and as a resource to be deployed in international power struggles. Critical, Marxist and feminist scholars also focus on power, emphasizing how the power of states and/or dominant groups manifests itself in substantive treaty and customary rules, in procedural mechanisms, and in institutional designs that privilege the strong at the expense of the weak (Steinberg and Zasloff 2006).

We shall explore further below some of the specific ways in which international legal scholarship can shed light on questions that political scientists have hitherto studied without the benefit of legal insights, or indeed not at all. But even the brief survey presented here will serve to make the point that international legal scholarship in all its diversity bears almost no resemblance to the caricature often presented in political science writings of a discipline that is doctrinal, formalist, and politically naïve about the realities of international power politics. Indeed, we would go


further and suggest that it is political scientists who, without the benefit of international legal insights, risk falling into an unwitting formalism that equates international law-making with the texts of treaties, international legal interpretation with the formal judgments of international courts, and the effects of international law with the formal compliance of states with the rules of black-letter law. Ironically, insights from international legal scholarship can help political scientists avoid falling into the formalist trap.

III. USING INTERNATIONAL LAW TO ENRICH INTERNATIONAL

RELATIONS

Having introduced a broad range of international law traditions and approaches, we now turn to the question posed by the title of this paper: what can international relations learn from international law? In the pages that follow, we attempt to demonstrate that insights from legal scholarship can be used to advance and refine IR understandings in areas that are already of great interest to political scientists. Just as importantly, legal scholarship can reveal lacunae and blind spots in IR analysis, and thus make the perhaps more significant contribution of identifying to new areas of inquiry and novel research questions.

To illustrate these points, we provide specific examples of how international legal thinking can advance IR understandings in the areas of law-making, interpretation, and compliance. Thus, for example, in the area of international law-making, we show that leading IR analyses of treaty design employ variables that are far removed from the concerns of international legal practice, and ignore important law making processes, such as customary international law. In the area of legal interpretation, we show that leading IR analyses take a relatively narrow view of international judicial behavior, ignore the interpretative strategies that courts use, and overlook the interpretative functions of non-judicial bodies.. Finally, we turn to enforcement, where we focus on a variety of domestic processes through which international law is internalized (or not) into national legal and political systems. In this context, we highlight law’s indeterminacy, and explore how bureaucratic actors, and others, use this indeterminacy to advance their goals within bureaucratic struggles, and we conclude this

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section with a discussion of the many ways in which international law can influence international politics “beyond compliance.”

In addition, across all three areas, we provide examples of “best practice” that combine sophisticated IR analysis with a solid working knowledge of legal processes, theories and concepts.

We emphasize that the examples below are intended to be illustrative rather than exhaustive. Our intent is to show enough to entice IR scholars to further explore how greater attention to legal concepts, and international legal thought more generally, can advance IR analysis of international law-making, interpretation, and compliance and effectiveness.

A. International Law Making

To demonstrate how greater attention to legal analysis can advance IR thinking, we will discuss, by way of example, the rational design (RD) project. While we could have chosen any IR approach, RD provides a good test because it is arguably the IR approach that takes international law, and law-making, most seriously. While it would be easier to show what IL can add to theories that pay little attention to international law, RD presents a “hard case” as it already identifies and analyzes topics of great interest to international lawyers.

RD examines the dependent variable of institutional design in light of the strategic structure of the problem states are trying to solve via international treaty or institution. Rational design conjectures possess considerable explanatory power; nonetheless rational design’s conceptualization of institutional design and treaty architecture overlooks many of the most important aspects of treaties, such as the role of remedies, which have attracted significant attention in the legal literature.

However, IL insights can do more than simply refine and extend IR analyses in new directions. IL scholarship can make the more important contribution of identifying new research questions and novel areas of inquiry for political scientists interested in the legalization of international relations. For example, IR scholars interested in the making of international law focus almost exclusively on treaties. As a result, the IR literature virtually ignores several other important forms of international lawmaking,


including customary international law, global administrative processes, and judicial precedent. However, as discussed below, the legal literature has devoted substantial attention to these other forms of lawmaking, and has generated important descriptive, conceptual and normative claims regarding aspects of international lawmaking, such as the role of power, that should be of interest to IR scholars.

Of course, as noted above, our goal is not simply to rebalance the asymmetrical intellectual terms of trade between the two disciplines. Rather we urge IR and IL scholars to learn from each other for the purpose of advancing understandings of the causes and consequences of international legalization. Thus, we close this section with a discussion of a recent scholarship on international lawmaking that fruitfully weaves theory and knowledge from both disciplines to generate important new insights.

1. Enriching Rational Design – Toward a Richer

Understanding of International Institutions

The RD project starts from the observation that international institutions “are organized in radically different ways,” and attempts to explain this variation.4 RD focuses specifically on several elements of institutional design, namely membership, scope, centralization of tasks, control, and flexibility. For current purposes, we examine “centralization,” which refers to “a wide range of centralized activities,” including mechanisms “to disseminate information, to reduce bargaining and transaction costs, and to enhance enforcement.”5 While centralization is surely a critical element of treaty design, many lawyers would suggest the rational design approach to centralization does not exhaust the wide range of functions that can be centralized in treaty bodies, and fails to account for the fact that the scope of these various “centralization” functions may vary independently within any international agreement.

4 Institutions are defined as “explicit arrangements, negotiated among international actors, that prescribe, proscribe and/or authorize behavior.” Koremenos et al, supra note x, at 762. 5 Id. at 771.

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To their credit, RD proponents readily concede that this category is too broad.6 Thus, a subsequent RD paper begins to disaggregate the various design features encompassed by “centralization” to focus specifically on the presence of dispute resolution provisions in different types of treaties.7 But even to identify the category of “dispute resolution provisions” as a feature of treaty design risks being substantially overbroad, as different dispute mechanisms exhibit substantially different institutional features, including whether the dispute settlement body’s jurisdiction is compulsory or not; whether its decision is legally binding or not; which actors have standing to initiate disputes; and the remedies available in cases of breach. As a result, the actual design choices that states make when negotiating dispute clauses are significantly more fine-grained than the dichotomous decision of whether or not to include a dispute provision that RD highlights.

For current purposes, we highlight the issue of remedies – the relief that legal systems provide in response to violations of substantive rights. As a conceptual matter, questions of rights and remedies are inescapably intertwined; hence the legal truism that that there is no right without a remedy (ubi jus ibi remedium). And, as a pragmatic matter, any party’s decision to invoke an international tribunal will turn, in large part, on what remedies it would receive should it prevail. Hence, questions regarding remedies are front and center whenever states design dispute settlement systems, and the use and effectiveness of any dispute settlement body will turn, in large part, on the remedies available following a finding of breach.

Given IR scholars’ interest in enforcement, and IL scholars’ sense that states generally comply with international law, one might expect to find a large IR literature on remedies, and a dearth of attention from lawyers. But precisely the opposite is true; while virtually all IR writings about international dispute settlement ignore the issue of remedies, this topic has attracted substantial attention from international law scholars. In the

6 Id at 795. 7 Barbara Koremenos, If Only Half of International Agreements Have Dispute

Resolution Provisions, Which Half Needs Explaining?, 36 J. LEG. STUD. 189 (2007).


paragraphs that follow, we demonstrate that remedies regimes vary widely across different legal regimes; that states devote substantial attention to questions of remedies; and that international legal scholarship has produced both issue-specific and comprehensive analyses of remedies regimes.

a) Variation in Remedies Regimes

Whenever a tribunal or other body hears a dispute, it must decide not only the first order question of which side wins, but also the second order question of what remedy to award the prevailing party. As a matter of general international law, a state responsible for an internationally wrongful act is obliged to make “full reparation for the injury caused.”8 Full reparation can take the form of “restitution, compensation, [and/or] satisfaction,” as appropriate to the circumstances.9 In addition to these general norms, the Vienna Convention on the Law of Treaties sets out influential rules governing responses to treaty breaches, which draw fine distinctions based on the impact of the breach and the nature of the underlying treaty.10

Notwithstanding these general norms, when negotiating treaties, states are free to design the type and level of remedies, as well as corresponding monitoring or adjudicatory mechanisms.11 And, in practice, states adopt widely divergent approaches to the question of remedies, both within and across different regimes.

Consider, for example, the divergent remedies available in two prominent human rights regimes. Although states creating the inter-American and European human rights systems presumably faced similar cooperation problems, they created very different remedies regimes. The Inter-American Court of Human Rights can order “fair” monetary compensation for individuals who have suffered human rights violations. In addition, the court is

8 International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International law Commission on the Work of its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, UN Doc A/56/10 (2001). 9 Id. 10 VCLT, art. 60. 11 The Articles on State Responsibility expressly recognize the ability of states to create lex specialis for remedies. See art. 55.

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authorized to issue orders for the domestic trial and punishment of human rights perpetrators and for changes in domestic law.12 The treaty creating the European Court of Human Rights provides that, in the event of a breach of the European Convention, and if the domestic law of the state concerned “allows only partial reparation to be made,” the Court has the power, if necessary, to “afford just satisfaction to the injured party.”13 In contrast to the IACtHR, the ECtHR is not authorized to grant other remedial orders that would legally bind the offending state.

Different investment treaties provide for different remedies in the event of breach. For example, the 2012 U.S. Model Bilateral Investment Treaty explicitly authorizes tribunals to award certain types of interim protection, “monetary damages and any applicable interest,” and/or “restitution of property.” The U.S. model treaty explicitly disallows punitive damages.14 However, other investment treaties permit compensation for moral damages.15 Yet other investment treaties are silent on remedies. For example, the Energy Charter Treaty, which has been ratified by over 50 European states, the EC, and Euratom, and which is intended to protect foreign investments, does not address the remedies available in the event of a breach.

Different international criminal courts similarly have very different remedy schemes. The Rome Statute creating the International Criminal Court permits victims of international crimes within the tribunal’s jurisdiction to claim reparation for wrongs suffered. In addition, the Statute provides for the creation of a “Trust Fund” for the benefit of victims of crimes within the ICC’s jurisdiction, and for the families of victims. In enacting these provisions, states were plowing new ground, as similar

12 American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS 123 (entered into force 18 July 1978), art 63(1). 13 Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953), art 41. 14 2012 U.S. Model Bilateral Investment Treaty, available at http://www.ustr.gov/sites/default/files/BIT%20text%20for%20ACIEP%20Meeting.pdf 15 See, e.g., Desert Line Projects v. Republic of Yemen, ICSID Case No. ARB/05/17 (awarding $1,000,000 in “moral damages” in light of “malicious” nature of “physical duress exerted on executives of the Claimant”).


provisions were not found in the instruments creating earlier criminal tribunals, such as the ICTY and ICTR.

Finally, remedy regimes are rarely static. One prominent example involves the laws of war. Until relatively recently, this body of law of war permitted “reprisals,” or violations of legal obligations to retaliate against another party that has violated its own obligations. However, in the twentieth century, states began to limit the right of reprisals. The 1929 Geneva Conventions forbade reprisals against POWs, and the 1949 Geneva Conventions extended this prohibition to treatment of civilians and the wounded and sick. Additional Protocol I of 1977 extended this obligation to historic monuments, civilian objects and the natural environment.

Another regime that has seen considerable evolution in the treatment of available remedies is the international trade system. During the GATT era, decisions to impose remedies in response to breach required a consensus of GATT parties, including the breaching state. Hence, while remedies were theoretically available, they were unavailable in practice. When trading nations created the WTO in 1995, they effectively granted a complaining state the automatic power to impose trade sanctions on losing parties that fail to comply with an adverse WTO dispute ruling. Moreover, states decided that different levels of retaliation were appropriate for different types of violations. In most instances, prevailing parties can suspend trade concessions in an amount equal to the complainant’s level of injury from the violation; however, different rules apply in cases involving WTO-illegal subsidies.16 This automatic retaliation power is subject to certain safeguards, including WTO review of (1) the amount of retaliation; (2) the appropriateness of the economic sector retaliated against; and (3) the threshold question of noncompliance itself, if this is disputed.

In practice, this system has proved controversial. Many states complain that, by awarding only prospective (and not retrospective) damages, the WTO remedies regime created perverse incentives for states to violate WTO law and drag out any

16 For violations of the rules on prohibited subsidies, WTO parties provided for “appropriate countermeasures.” For violations of WTO rules on actionable subsidies, trading states agreed on yet a different standard, namely “commensurate” countermeasures.

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resulting dispute processes; others argue that the system cannot meaningfully be invoked by small states against large states. As part of an ongoing review of the WTO dispute system, both the African Group and a group of least developed states have submitted proposals that would permit “collective retaliation” by all WTO members against a noncompliant state.17 Among other proposals, Mexico proposed that the authorization to retaliate be tradable,18 Ecuador introduced a proposal to raise the level of retaliation permitted,19 and the EC introduced a proposal to prohibit so-called “carousel” retaliation.20

As even this cursory review suggests, in trade and many other issue areas, states do not simply debate “centralization,” or even whether or not to have a dispute system. Rather, their discussions – and their subsequent design choices – are substantially more nuanced and fine-grained than the design choices highlighted in RD scholarship. Thus, while RD provides a logical springboard from which to theorize about variation across agreements, greater attention to legal knowledge would enable RD and other IR scholars to structure theorizing and data collection more tightly focused upon the design elements that states themselves focus on.

b) International Legal Scholarship on Remedies

Given their practical importance to the functioning of international dispute settlement mechanisms, and the substantial efforts that states devote to negotiating over remedies, this topic is ripe for IR scholarship. Happily, should IR scholars choose to explore this topic, they need not write on a blank slate; legal scholars have devoted substantial energies to this topic.

A large literature addresses specific remedies regimes.21 Other legal writings address remedies from a more theoretical

17 See TN/DS/W/15, No. 6, and TN/DS/W/42, No IX (both submitted by the African Group) as well as TN/DS/W/17 (LDC Group) 18 TN/DS/W/40 19 TN/DS/W/9 and TN/DS/W/33 20 See TN/DS/W/1, No II.D and subsequent legal text (EC). 21 For example, on the law of international responsibility, see, e.g., THE LAW OF

INTERNATIONAL RESPONSIBILITY (James Crawford, Alain Pellet, and Simon


perspective, including a literature that adopts (or critiques) a conceptual framework originally developed for domestic law purposes by Calabresi and Melamed (C&M).22

C&M provided a simple and elegant way of conceptualizing remedies that applied across various fields – contract law, tort law, property law, environmental law, criminal law, the law of eminent domain – that had previously been considered separately. Surveying a broad range of legal practice, C&M argue that entitlements (i.e., legal rights) can be protected under property, liability, or inalienability rules. Entitlements protected by property rules can only be transferred via “a voluntary transaction in which the value of the entitlement is agreed upon by the seller.” This modality requires little centralized intervention; once the initial entitlement is determined, the state does not attempt to determine its value. A liability rule, in contrast, gives parties the ability to take or destroy an entitlement upon the payment of an objectively determined value. Thus, a state can expropriate the property of a foreign investor, so long as compensation is paid. Liability rules require a greater amount of intervention than property rules insofar as a centralized body, such as a court, determines the value of an entitlement when it has been transferred or destroyed. Inalienability rules do not permit the transfer of entitlements, even as between willing buyers and sellers. Most domestic legal systems do not permit individuals to sell body parts, or to sell themselves into slavery, even if they wanted to. These entitlements are immutable and nontransferable – or, in C&M’s term, inalienable.23

C&M’s innovative conceptual framework did more than propose a novel taxonomy of legal entitlements. Their article also proposed a taxonomy of normative considerations that judges and other actors might consider when deciding how best to protect any

Olleson, eds. 2010); for rules regarding treaty breach, see, e.g., SHABBTAI ROSENNE, BREACH OF TREATY (1985). 22 Guido Calabresi and A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972). 23 C&M acknowledge that most entitlements to most goods are mixed. Thus, my right to my house is protected by a property rule in situations where my neighbor wants to purchase it; by a liability rule when my neighbor’s tree falls on my house or the government wishes to take it by eminent domain, and by an inalienability rule when I am drunk or incompetent.

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particular entitlement. These considerations helped spark a large and sophisticated literature debating the circumstances under which one or another rule should be used, such as Richard Posner’s claim that liability rules were more likely than property rules to promote efficient outcomes when transaction costs were high.24

In recent years, scholars have applied C&M’s framework to the international system. For example, Dunoff and Trachtman noted the dominance of property-type rules in international law, notwithstanding the frequent presence of high transaction costs.25 They suggested that a liability system, which requires extensive institutionalization or tribunals for assessing damages, possesses many of the characteristics of a public good, and that efforts to construct the institutional machinery necessary to implement liability rules implicate a series of familiar collective action problems.

Pauwelyn extended this analysis with an argument that international entitlements generally are, and should be, protected by property rules. The soon-to-be completed U.S.-Mexico agreement regarding waters of the Colorado River26 provide a good example of the way property rules can work in international settings. A 1944 treaty between these parties addressed water allocation issues. But the agreement did not satisfactorily resolve all outstanding issues, and periodically each side has alleged that the other has violated the agreement. In such cases, the parties can and do renegotiate the allocation of water rights; the new agreement reportedly allocates water quantities in cases of water surplus and drought. For Pauwelyn, property rules like this are normatively desirable as they maximize contractual freedom and require the least amount of collective intervention.27 Pauwelyn contrasts his position to what he calls “European absolutism,” which favors hard inalienability for all international legal norms,

24 RICHARD A. POSNER, THE ECONOMIC ANALYSIS OF LAW 29 (1972). 25 Jeffrey L. Dunoff & Joel P. Trachtman, Economic Analysis of International

Law, 24 YALE J. INT’L L. 1 (1999). 26 Ian Lovett, U.S. and Mexico Sign a Deal on Sharing the Colorado River, NEW

YORK TIMES, Nov. 20, 2012, at A16. 27 JOOST PAUWELYN, OPTIMAL PROTECTION OF INTERNATIONAL LAW: NAVIGATING BETWEEN EUROPEAN ABSOLUTISM AND AMERICAN VOLUNTARISM

(2008).


and “American voluntarism,” which favors simple liability rules in virtually all circumstances.28

More recently, Posner and Sykes offered a competing analysis that favors use of liability over property rules. Their argument begins from the premise that compliance with international law is justified only when doing so promotes welfare.29 Under this “welfarist” approach, violations of international law are not disfavored per se. Rather, breaches should be permitted in several circumstances, including in retaliation for noncompliance by other parties, and when “when contingencies increase the cost of performance above the other party’s valuation of performance,” i.e., so-called efficient breach. Posner and Sykes argue that in cases of efficient breach, a liability rule should be used: “an ideal remedy is monetary reparations [equal to] expectation damages: the wrongdoing state simply transfers and amount equal to the loss to the victim state measured against the baseline of full performance.”30

In short, the issue of remedies is of immense practical and theoretical interest – but remains underexplored in IR scholarship. In contrast, IL scholars have devoted significant energies on remedies in ways that can benefit IR analysis. First, IL writings offer granular details on the effects of different remedies, and develop normative arguments in favor of one or another remedy in particular contexts. These normative arguments often suggest that certain remedies regimes should be used in certain contexts; we think these arguments can and should be subject to empirical testing. Second, legal scholarship offers conceptual frameworks that help to organize what might otherwise appear to be a hopelessly complex set of practices into a relatively straightforward typology. Third, the legal literature problematizes

28 That said, Pauwelyn acknowledges that property rules are not appropriate in all settings, including where there are significant concerns over hold-outs and free riders, or high transaction costs, and thus where a liability rules are more appropriate; or where there are significant externalities, or nonmonetizable values are at stake, such as in jus cogens norms, and when inalienability rules are appropriate. Id. 29 Eric A. Posner & Alan O. Sykes, Efficient Breach of International Law: Optimal Remedies, “Legalized Noncompliance,” and Related Issues, 110 MICH. L. REV. 243 (2011). 30 Id at 264.

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RD approaches to institutional design, as remedies regimes do not correspond in any straightforward way to underlying problem structures. Thus, liability rules are used to address collective action/prisoner dilemmas in the trade context, externalities in environmental contexts, and commitment problems in human rights contexts. And treaty entitlements across numerous different legal regimes are protected by property rules. Hence, the variation in remedy regimes poses a puzzle that falls outside the extant IR analysis of treaty design.

That said, it should be noted that international lawyers by and large have not addressed many of the questions that would come quite naturally to political scientists, such as the political question of what states – or what kinds of states – might advocate for one or another system of remedies. Hence, the politics, and the political economy, of remedies remains a puzzle, which seems ripe for analysis using political science as well as legal theories, including not only RD but also liberal or IPE theories that offer accounts of variation in state preferences over institutional choices.

To be clear, we are not arguing that IR scholars should ignore “centralization” or that studying the frequency with which treaties in different issue areas provide for dispute settlement is somehow unimportant. It is, however, to say that broad categories such as “centralization” – or even the slighly more precise “dispute settlement” – are of limited utility in understanding treaty design. And it is also emphatically to say that the actual design choices that states make are significantly more fine-grained than the dependent variables identified in the IR literature to date. Finally, it is to claim that legal analysis offers broad frameworks that can be used to conceptualize and analyze underexplored topics such as remedies. For example, legal approaches to remedies provide a framework for coding variations across and within legal regimes, and for theorizing about the different approaches states take to protecting legal entitlements.

We hasten to add that we emphasize remedies by way of example as just one design element that is recognized as vitally important by both states and legal scholars but has been largely ignored by political scientists. However, remedies hardly exhausts the list of such features. While IR scholars have highlighted some design features of international dispute settlement bodies (e.g., the


broad categories of delegation, access, and embeddedness in Keohane, et al 2000), one can easily identify other important features, including:

• Ad hoc or permanent adjudication bodies? This is a truly fundamental choice, which in theory is available to states across a wide range of cooperative endeavors. While international lawyers have analyzed this issue, we are not aware of any systematic effort to either theorize or empirically explain the resulting range of choices.

• Compulsory or non-compulsory jurisdiction? International dispute bodies vary dramatically along this dimension, with some tribunals, such as the WTO, possessing compulsory jurisdiction, while others, such as the ICJ, allow opt-outs or opt-ins to compulsory jurisdiction. The Law of the Sea Convention offers yet another variant, requiring states to accept the jurisdiction of some arbitrator or adjudicator, but offering states a choice of four alternative fora. Once again, this is a topic of enormous interest to lawyers, but we know of no effort to explain, in rational design or other terms, this range of design choices.

• A right of appeal? The structure of most international dispute systems does not provide the option of appeal. And yet several prominent dispute settlement systems – such as the EU court system and the WTO Dispute Settlement Body – contain an appellate mechanism, nominally to ensure the consistent interpretation of laws by judicial panels, chambers, and lower courts. Whether to have an appellate procedure has most recently been debated in the investment context, where the absence of an appellate process is said to contribute to inconsistency in the case law. We would think that IR scholars could contribute substantially to explaining the variation we observe in this design feature.

• Provisional remedies? Provisional remedies refers to the ability of courts to order interim relief prior to the final disposition of a dispute. Many international tribunals, including the ICJ, ECJ, ITLOS, ICSID tribunals, the East African Court of Justice, and the African Court on Human and Peoples’ Rights, are expressly authorized to issue “provisional measures,” or interim relief prior to issuing a

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final judgment. But states have decided not to grant the authority to issue provisional measures to a number of other important tribunals, including the Permanent Court of Arbitration, and WTO dispute panels (including the Appellate Body).

These are all dimensions of institutional design that both states and lawyers recognize as important. States vigorously negotiate over these and related institutional features, and legal scholars debate the normative costs and benefits of alternatives over each of these, and other, dimensions. All of these represent only a subset of real-world design choices, relevant to the design of dispute settlement systems, and all of them merit further study, both for their inherent importance and as a testing ground for an expanded and enriched approach to institutional design. Finally, all of them highlight the ways in which increased attention to legal scholarship would enable IR scholars to identify more accurately and more precisely the topics that states actually bargain over and hence to analyze the design features that states truly care about.

2. New Questions, New Areas of Inquiry: Lawmaking

Beyond Treaties

While using IL to extend IR insights in new directions is useful, IL scholarship can make a more substantial contribution to IR by identifying new research questions and areas of inquiry for political scientists interested in the legalization of international relations. In this sense, international legal thinking can be used not only to support a deeper and broader understanding of familiar IR claims, but also to identify and illuminate unexamined areas of international cooperation, to generate fresh perspectives and to spark new insights.

For example, IR analyses of international law creation focuses almost exclusively on treaties. However, from a legal perspective, the focus on treaties provides a substantially incomplete account of contemporary methods of law-making,


which include a wide variety of non-treaty forms of lawmaking,31 notably including customary international law, as well as judicial precedent,32 global administrative processes, 33 and various non-consensual lawmaking processes.34 The failure to address these other important law-making processes necessarily leads IR scholarship to present an incomplete, and therefore misleading, picture of international law making, potentially undermining IR efforts to understand lawmaking. International lawyers, in contrast, devote substantial attention to non-treaty lawmaking processes. Some of these writings examine familiar IR questions, but do so in new contexts; some elaborate and extend insights found in IR scholarship; and some suggest new areas of research.

a) Customary International Law

For current purposes, we highlight customary international law, which arises out of general and consistent state practices that are followed out of a sense of legal obligation. Perhaps IR scholars downplay custom in light of influential accounts suggesting that custom typically reflects a coincidence of interests or coordination, and is of limited use is solving cooperation problems.35 But even these deeply skeptical accounts acknowledge that “customary international law remains an important component of international law,”36 and customary norms continue to govern many foundational areas of international law, including the rules concerning sovereign immunity, state responsibility, territorial sovereignty, and the ability of states to regulate extraterritorially. In each of these areas – as well as other important areas of international relations – no multilateral treaty exists, and the governing norms emerge out of state practice.

31 Daniel Bodansky, Prologue to a Theory of Non-Treaty Norms, in LOOKING TO THE FUTURE: ESSAYS ON INTERNATIONAL LAW 119 (M.H. Arsanjani, et al. eds, 2011). 32 The role of courts in interpreting, elaborating and developing legal doctrine is discussed in part 3 below. 33 See, e.g., Benedict Kingsbury, Nico Krisch, and Richard Stewart, The Emergence of Global Administrative Law, 68 L. & CONTEM. PROB. 15 (2005). 34 Laurence R. Helfer, Nonconsensual International Lawmaking, 2008 U. ILL. L. REV. 71. 35 JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW (2005). 36 Id. at 21.

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Moreover, even in issue areas where treaties exist, custom continues to play an important role. For example, many treaties explicitly or implicitly invoke customary norms, such as the many investment treaties that use the customary standard for expropriation and fair and equitable treatment. Finally, newly emergent issues – ranging from Internet freedom to nanotechnology to cyberwarfare – will often lack a governing treaty for some period of time; in the interim, any relevant applicable rules of international law are likely to be customary rules.

b) Custom and Topics of Interest to IR Scholars

IR scholars will find much of interest in the large IL literature on custom. For example, IR scholars interested in the law’s dynamic dimension and in studying change over time will find much in the writings of scholars from the New Haven school and other process-based theorists who foreground the dynamism implicit in the making of customary international law:

International law is still largely a decentralized process, in which much lawmaking (particularly for the most innovative matters) is initiated by unilateral claim, whether explicit or behavioral. Claims to change . . . [any] part of the law, ignite a process of counterclaims, responses, replies, and rejoinders until stable expectations of right behavior emerge. Since every legal regime perforce benefits some actors more than others, no sooner does a new normative arrangement stabilize than it, too, comes under stress from new claims for change, in an ongoing bargaining process between sometimes rapidly shifting coalitions. Hence the ceaseless dialectic of international law: Whether by diplomatic communication or state behavior, one state claims from others acquiescence in a new practice. Insofar as that new practice is accepted in


whole or in part, the practice becomes part of the law. . . . 37

The claim-and-response nature of customary international lawmaking gives rise to an intriguing paradox: states that wish to change a customary rule (as opposed to overriding it by treaty) should violate the rule and hope that other states accept the new practice. That is, “[n]ations forge new law by breaking existing law, thereby leading the way for other nations to follow.”38 While international lawyers debate the normative impacts of processes that require lawbreaking for lawmaking, a system of law that contains the seeds of its own violation surely provides a fascinating counterpoint to most political science models of how legal systems evolve over time.

Writings on custom also illustrate some of the ways that IL scholars incorporate power into their analysis.39 For example, the concept of power is integral to the New Haven School’s conception of international lawmaking; for this approach, law – including prominently customary international law – is a process of authoritative decision-making grounded in effective power. According to one leading New Haven scholar, to understand lawmaking, one should analyze power by examining “the ways in which resources (material and symbolic) are manipulated, or the strategies used by different participants involve the management of resources aimed at optimizing preferred outcomes. Strategic modes are considered along a persuasive-coercive continuum. They include diplomatic, propagandistic, economic, and military

37 W. Michael Reisman, Assessing Claims to Revise the Laws of War, 97 AM. J. INT’L L. 82 (2003). 38 Jonathan I. Charney, The Persistent Objector Rule and the Development of

Customary International Law, 56 BRIT. Y.B. INT’L L. 1, 21 (1985). 39 Thus, these writings address the frequent claim that legal scholars undervalue the role of power in international affairs: “[o]ne of the major distinctions between research in IR and international law has been that the former usually starts with power, whereas most research on public international law, with important exceptions, places its emphasis elsewhere.” Emilie M. Hafner-Burton, David G. Victor, and Yonatan Lupu, Political Science Research on

International Law: The State of the Field, 106 AM. J. INT’L L. 47, 51 (2012). In fact, however, virtually all of the leading schools of international legal thought foreground the importance of power in international lawmaking processes. Richard H. Steinberg and Jonathan M. Zasloff, Power and International Law, 100 AM. J. INT’L L. 64 (2006).

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techniques in varying ensembles” (Reisman 2007: 578). Of particular interest here is the emphasis, not just on power as a set of capabilities, but also on the “strategies” and “techniques” whereby states employ different power resources in international legal fora – an approach which contemporary IR theory, with its emphasis on correlational (and often statistical) analysis, has largely lost.

More broadly, IR scholars who turn their attention to customary international law will find large legal literatures that explore how custom operates as law, its legitimacy, whether it serves efficiency or competing values, and its democratic accountability. The most recent scholarly debate centers on whether states can or should be able unilaterally to withdraw from international custom40 – a question that should be of interest to IR scholars given their focus on flexibility and escape mechanisms in treaties.

c) From Custom to Treaty

As noted above, treaties and custom are two of the central tools used to make contemporary international law, and substantial literatures address each of these topics, as well as the choice between them. But less attention has been paid to question of what motivates states to shift between custom and treaty, and particularly when states seek to “codify” customary international law. Codification, for these purposes, consists of the “formulation and reduction to a written instrument of rules of law that elaborate established [legal] doctrines and precedents.”41 Particularly over the last 100 years, states have undertaken a number of important codification efforts. Among other efforts, the International Law Commission has produced codifications of several foundational doctrinal areas of international law, including the law of treaties,42 diplomatic and consular immunities,43 and the law of the sea.44

40 Curtis A. Bradley & Mitu Gulati, Withdrawing from International Custom, 120 YALE L.J. 202, 208 (2010). 41 Timothy Meyer, Codifying Custom, 160 U. PA. L. REV. 1003 (2012). 42 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331. 43 Vienna Convention on Diplomatic Relations art. 47.2(b), Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95


More recently, efforts have been made to codify parts of international criminal law in the Rome Statute creating the International Criminal Court and elements of international investment law in negotiations at the OECD and the WTO.

The conventional wisdom among international lawyers is that states codify custom to clarify the law and to promote compliance with international legal norms. Given that customary norms can often be vague or ambiguous, codification permits states to specify with greater precision custom’s requirements. This precision, in turn, is thought to minimize costly disputes over the law’s content and enhance international coordination. Codification is also thought to promote compliance. Customary rules are typically rules of conduct; such rules by themselves are not always sufficient to induce desirable levels of compliance. Treaties can include not only rules of conduct but also a variety of mechanisms, such as reporting, monitoring, or dispute settlement provisions, that can improve compliance. Moreover, codification can affect a rule’s status as domestic law, as many domestic systems distinguish between treaty and customary norms.

In a recent paper, Timothy Meyer challenges this conventional wisdom. Meyer argues that the “clarification thesis” – the claim that states codify customary law because it is to their joint benefit – “is limited by the realities of the way states behave when making legal rules.”45 That is, states have little interest in increasing aggregate welfare unless they are able “to increase their individual share of the benefits of cooperation.” Thus, Meyer argues, the clarification thesis “cannot explain codification in areas in which there are sharp distributional consequences to clarifying the law and when familiar bargaining problems prevent states from creating a legal regime that redistributes the benefits of cooperation.” Similarly, compliance cannot fully explain many codification efforts, as many of these initiatives lack mechanisms

44 Convention on the High Seas, Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 11. See also United Nations Convention on the Law of the Sea pmbl., Dec. 10, 1982, 1833 U.N.T.S. 397 (citing codification of the law of the sea as a main purpose of the convention). 45 Meyer, supra note 41.

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thought to induce compliance.46 Moreover, efforts to enhance compliance face a threshold question of whether the joint costs of creating compliance-inducing mechanisms outweigh the benefits.47 States most likely to be noncompliant have little interest in raising the costs of noncompliance, and efforts to compensate them will encounter familiar transaction cost and hold-out problems.

So why might states engage in codification? Meyer notes that custom is formed in a process of claim and response that is largely unstructured by procedural rules. Claims are backed by action, often in the context of specific disputes. Thus, custom is the product of a series of uncoordinated actions that results in states coming to believe, based on each other’s actions, that a customary rule exists. Powerful states have disproportionate influence in this process, both because they are more likely to prevail in individual disputes and because they are generally more effective at formulating their claims in ways likely to impact custom.48

Powerful states might seek codification to move the customary rule in a direction favorable to their interests, or to “lock in” a rule and thus guard against unfavorable future changes to custom. But codification can be attractive to less powerful states as well. Weaker states can use procedural norms (such as voting rules) and bargaining tactics (such as coalition building) available in treaty settings that are unavailable in the specific disputes that typically generate customary norms. Thus, codification is understood as “a battleground on which international actors – principally, but not exclusively, states – compete on the basis of their political and policy interests to define and interpret rules that will advantage them in their interactions with other actors.”49 Meyer concludes that codification is driven by distributional concerns, and not by efficiency claims.

46 For example, the Vienna Conventions on Diplomatic and Consular Relations contain no mandatory dispute resolution procedures or enforcement or monitoring obligations. Rather, each creates an optional protocol on disputes. 47 See, e.g., Andrew Guzman, (arguing that enforcement mechanisms are often negative sum, and hence rarely used in international law. 48 Meyer, supra note x. at 1022; D’Amato at 96. 49 Id. at 1023-24.


We highlight Meyer’s analysis not because we agree with every argument, but because it combines IR concerns over power, distributional issues, and attention to bargaining dynamics; a deep and nuanced understanding of the rich IL literature on the role and function of custom; a rich knowledge of the nuts and bolts of international lawmaking; and enlightening discussions of numerous codification efforts, ranging from the successful effort to codify a ban on the slave trade to the unsuccessful efforts to codify international investment rules. The combination of IR and IL knowledge permits Meyer to develop a highly original thesis that not only challenges conventional IL understandings, but also lends itself to further refinement – perhaps including empirical testing over the environmental features that make codification efforts more or less likely to succeed, or explorations of the distributional implications of specific codification efforts. Moreover, Meyer’s conceptualization of codification as type of forum shopping (an effort to shift lawmaking from one forum to another) and as increasing the fragmentation of international law (by creating incentives for groups of states to codify their preferred interpretation of customary norms) contributes to the large IL and IR literatures on both of these important topics.

B. Interpreting International Law

While law creation is a critical element of international law, it is hardly exhausts international legal processes. Once enacted, legal texts do not announce their own meaning or apply themselves. Thus, legal interpretation and application lie at the heart of every legal order. In domestic orders, legal interpretation often takes place in courts, but until relatively recently international courts were not frequently utilized. However, in recent years the number of international courts and cases have multiplied considerably, and as a result international tribunals have moved from the periphery to the center of many issues of international law and policy.

In response, scholars from both IL and IR have devoted substantial attention to international courts and tribunals. However, the research focus of the two disciplines have diverged considerably. When lawyers study international courts, they tend to focus on the rules and methods of treaty interpretation, with particular focus on the Vienna Convention on the Law of Treaties,

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which provides that treaties “shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” International courts and scholars have debated the relative weight to be given to factors such as the intent of the treaty’s parties; the significance of travaux préparatoires; the importance of subsequent practice; whether the same interpretative approach is appropriate for all treaties; and the legitimacy of functional or teleological approaches to interpretation (citation).

In contrast, IR scholarship in this area tends to foreground questions of institutional design and international judicial politics, illuminating – albeit selectively – four significant questions or themes: (1) the design of dispute settlement bodies; (2) judicial behavior, with an emphasis on judicial independence; (3) the behavior of litigants (both state and non-state); and (4) the dynamic

evolution of dispute settlement systems over time.

First, in keeping with the increasing focus on rational design, a handful of IR scholars have sought systematically to understand and explain the design of international dispute settlement bodies. For example, Keohane, Moravcsik and Slaughter (2000) provided an influential analytical framework which classified various international dispute settlement mechanisms along three dimensions – access, independence, and embeddedness – characterizing courts that were low in all three dimensions as “interstate” courts and those that were high as “transnational” courts. Such differences in design, they argued, largely determine how frequently and by whom courts were used, whether those courts provide for the credible and neutral adjudication of disputes, and whether the resulting decisions would have immediate effects in the legal orders of their member states. Other recent work (Koremenos 2007, Koremenos and Betz 2013) goes further still, seeking to explain the conditions under which states design particular types of dispute settlement bodies.

A large and well-developed second strand of IL/IR scholarship has focused on explaining the nature, extent and determinants of international judicial behavior and independence. While a few legal studies had problematized and studied the independence of specific international courts (e.g. Brown Weiss 1987), IL/IR scholarship has systematized such analysis, defining


judicial independence clearly and providing comprehensive theoretical frameworks identifying a wide range of potential control mechanisms available to states (Pollack 2003; Voeten 2013). Just as significantly, this research agenda has given rise to a spate of qualitative and quantitative empirical work seeking to establish, despite considerable methodological challenges, the nature and sources of judicial independence in the ECJ (cf. Carubba, Gabel and Hankla 2008, 2012; Stone Sweet and Brunell 1998, 2012a, b), the ECtHR (Voeten 2008), the ICJ (Posner and Figueiredo 2005), and the WTO Appellate Body (Elsig and Pollack 2012), among others. Interestingly, Voeten (2013) suggests that, in addition to studying judicial independence as dependent variable, scholars increasingly ask whether judicial independence as an independent variable may help to explain other phenomena, including the effectiveness of international courts (c.f. Helfer and Slaughter 2005; Posner and Yoo 2005). This research in turn raises the intriguing concept of optimal judicialization. In an influential paper, Helfer (2002) asks whether international human rights law has become “overlegalized,” prompting a backlash against such treaties by Caribbean nations, and similar concerns have been raised in the trade context by Goldstein and Martin (2000) and Dunoff (1999), each of whom has warned of the potential over-rigidity of dispute settlement and limitations of courts in addressing highly politicized disputes. Voeten (2013) concludes that identifying optimal levels of judicialization represents one of the frontier subjects for future IL/IR research.

A third major contribution of IR scholarship has been to problematize, theorize, and study empirically patterns of state behavior as litigants in international dispute settlement. As Todd Allee (2004: 3) notes, the “decision to sue” is an important and under-studied question, of interest not only for its own sake but because the cases that actually reach international courts constitute a small – and potentially biased – subset of the universe of international legal disputes. In one study of international territorial disputes, Allee and Huth hypothesize that states are most likely to refer international disputes to judicial settlement when the domestic audience costs of making significant political concessions are high. In such settings, they argue, international judicial rulings can provide “political cover” for domestically unpopular decisions, and their analysis of nearly 1,500 territorial disputes provides support for the claim that “state leaders opt for

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legal dispute resolution when they are highly accountable to domestic political opposition, as well as when the dispute is highly salient to domestic audiences” (Allee and Huth 2006: 219). Other work, particularly on state behavior in WTO dispute settlement, points to other potential influences on state litigation behavior, including state power (Horn and Mavroidis 2007), actor estimates of the probability of winning (Allee 2004), regime type (Busch 2000), and previous litigation experience (Davis and Bermeo 2009).

Fourth, and most tentatively, IR scholars have begun to develop and test hypotheses on the conditions under which, and the ways in which, international dispute settlement systems develop dynamically over time. IL/IR scholars have suggested that transnational dispute settlement systems, characterized by high levels of access, independence and embeddedness, should show greater dynamism over time, as individuals (not subject to governmental gatekeeping) bring cases that are likely to be decided independently and enforced through domestic legal systems, creating a feedback loop of ever more developed law and ever-growing case-loads (see also Helfer and Slaughter 1997; Stone Sweet and Brunell 1998; Keohane, Moravcsik and Slaughter 2000; Moravcsik 2013).

Despite these substantial contributions, this IR scholarship arguably suffers from a systematic bias in favor of certain research questions and empirical subjects, while ignoring others that have been studied far more extensively by international legal scholars. Indeed, we would argue, international relations scholarship has neglected almost entirely what we have called the interpretation function, in favor of an approach that focuses alternately on institutional design and on the behavior of international courts and litigants, while ignoring questions of interpretation which have long interested international lawyers and which we argue should interest IR scholars as well.

More specifically, we focus here on just two questions where we believe the IR literature is incomplete or lacking, and where we believe that careful consideration of IL scholarship could enrich future work. First, we suggest that the IR literature, while examining international judicial behavior, has neglected almost entirely the question of legal interpretation, and we identify some


recent work that approaches questions of interpretation in ways that take account of doctrinal concerns while also asking social-scientific questions about patterns and causation. Second, we argue that, rather ironically, IR scholarship of the past two decades has suffered from an overemphasis on international courts, as opposed to other actors, including explicitly political actors, engaged in the interpretation of international law, and we suggest that political scientists could indeed enjoy a comparative advantage in the study of other, non-court legal interpretation bodies. Let us consider each of these, very briefly, in turn.

1. Judicial Behavior and Judicial Interpretation

A significant limit of existing IR scholarship in this area is its almost exclusive emphasis on judicial behavior and its relative neglect of legal interpretation per se. With its increasingly extensive use of quantitative methods to detect patterns of international judicial decision-making as well as correlations between judicial rulings and other factors, much of the existing literature reduces judicial rulings to a single dimension, namely whether a court ruled for or against any given state on a particular issue. The results of these studies have been valuable, demonstrating the ability of at least certain courts to rule against the interests of powerful states as well as identifying some important predictors of judicial behavior (Voeten 2013).

Yet in so doing most of the IR literature ignores other aspects of judicial interpretation, including questions of the principles used to guide interpretation, the formal or informal use of precedent, the nature of legal arguments, etc. A notable exception to this trend is Pauwelyn and Elsig’s (2013) interdisciplinary effort to conceptualize the dependent variable of international judicial interpretation along five dimensions, and to explain judicial choices with a model of what they call interpretation space and interpretation incentives. We consider Pauwelyn and Elsig’s analysis to be ground-breaking and to open up an exciting interdisciplinary research agenda that draws on the tools of both international law and international relations, so let us review this paper, and its implications, very briefly.

To begin, Pauwelyn and Elsig suggest that existing international tribunals make highly varied choices, not only in terms of the winners and losers of individual decisions, but in the interpretive strategies they employ to reach those decisions. For

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the sake of tractability, they reduce these strategies to choices along five dimensions. First, they identify a “dominant hermeneutic” guiding judicial interpretation, which can focus alternately on the plain meaning of legal texts (text), the intent of the original drafters of the text (intent), or the underlying objectives of the treaty (object). Judges in different courts (as well as different judges on the same court, or in different cases) have historically made different interpretive choices, with, for example, ICJ judges reading international treaties with respect to the ordinary meaning of the words contained therein, while other judicial bodies (for example, early GATT panels) have looked at the traveaux préparatoires for the intent of the framers, and others still (most notably the ECJ) have taken a teleological approach seeking to advance the broad objectives of a treaty or organization. Along a second dimension of “timing,” judges can interpret the terms of an agreement in line with their meanings at the time of drafting, an “originalist” approach, or they can take an “evolutionary” approach that interprets terms in line with their contemporary meaning. Third, courts can vary in their degree of “activism,” taking either a “work to rule” approach that interprets legal texts narrowly, or a “gap-filling” approach in which courts feel free to develop new legal principles to fill the gaps in what are often vague and outdated international agreements. Fourth, while international law contains no formal rule of stare decisis, international courts can vary in their treatment of precedent, either ignoring precedents and addressing each case afresh on its own merits, or alternatively building and drawing upon legal precedents when deciding new cases. Fifth and finally, courts vary in what the authors call “linkage” to other international legal regimes, in some cases interpreting legal texts in a particular regime in “splendid isolation” from the rest of the legal order, while in other cases courts may be outward-looking, interpreting their constitutive treaties with respect to general international law and to other treaties in related issue-areas.

Pauwleyn and Elsig are careful not to claim that choices along these five dimensions are determinative of substantive outcomes in any individual case; indeed, they concede that, “in some cases, a tribunal’s interpretative method may be little more than an ex post justification or ‘façade’ for an outcome reached on other grounds” (2013: 449). Nevertheless, they argue


persuasively, a given court’s or even an individual judge’s interpretive strategy can be as significant or even more significant than the substantive outcome of any particular case, as for example with respect to the European Court of Justice’s early decision during the 1960s to adopt a teleological, gap-filling approach to the interpretation of the EEC Treaty (rather than, say, an originalist, work-to-rule approach), which in turn opened the door to decisions creating the legal or constitutional principles of direct effect and supremacy of European over national law. Similarly, the ECJ’s strong tendency to rely on its own precedents, and its tendency (reinforced in recent years) to treat the EU legal system as a distinctive legal order separate from other areas of public international law, has clearly shaped the subsequent development of the EU legal order. To be sure, interpretive strategies have varied over time and across decisions in the ECJ and in other courts, yet the authors argue that various courts demonstrate “central tendencies” to adopt particular interpretive strategies. Just as importantly, Pauwelyn and Elsig treat such choices not only as doctrinal or normative decisions to be critiqued, but also as outcomes to be explained in social-science terms.

Pauwelyn and Elsig’s explanatory framework is complex, and a full explication of it is beyond the scope of this paper, but put simply the authors hypothesize that “interpretation choice is a result of the interaction of two key variables: (a) the demand-side interpretation space that is made available to a tribunal and (b) the supply-side interpretation incentives, defined as intrinsic motivations of a tribunal’s members when operating within this space” (2013: 459). Briefly, they argue that the interpretation space open to a court is a function of the precision or incompleteness of the legal text in question (with less precise texts giving courts greater leeway to make adventurous interpretive choices) and the ease or difficulty of coordinated response by member-state principals to court decisions (which are in turn a function of principal-agent considerations such as the diversity of member-state preferences and the control mechanisms created by them). In some cases, they hypothesize, the interpretation space open to a court may be constrained, e.g. by precise legal texts, a unified membership and easy-to-use control mechanisms, while in other cases courts may enjoy considerably greater latitude.

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In these cases, the court’s choices will be guided by interpretation incentives, which in turn relate to institutional and normative factors. On the institutional side, three institutional features – a tribunal’s lifespan (permanent or ad hoc), the composition of its constituency (whether non-state actors enjoy standing), and the presence or absence institutional competition from other courts – can make courts prone to adopt particular interpretive strategies. Permanent courts, to take just one example, are more likely to adopt a rule of precedent than ad hoc tribunals. On the normative side, finally, the authors suggest that judicial choices will be influenced by concerns about legitimacy, the importance of a broader interpretative community surrounding the court and its legal order, and the possible legal traditions such as civil and common law. Pauwelyn and Elsig emphasize that their approach is exploratory, and they simply illustrate the plausibility of their framework with examples rather than conduct any systematic test, but their approach brings together the lawyer’s attention to doctrine, discourse, and process with the political scientist’s effort to explain broad patterns of and variations in behavior, and we believe it opens up a major new research agenda for international relations scholars to study doctrinal questions systematically using the tools of social science.

As an example of best practice in this area, consider the small and very recent literature on the use of precedent in international courts. [Examples/best practice in the systematic study of international legal interpretation: Lupu and Voeten (2011) and Pelc (2012) on precedent in international courts and tribunals.]

2. Interpretation: By Whom?

Finally – and here is another irony, to sit alongside IR’s formalist approach to law as written treaties – international relations scholars have thus far focused their analysis of international legal interpretation almost exclusively on courts and judges, effectively ignoring the large number of other quasi-judicial or non-judicial actors who interpret international law on a regular basis. A legal scholar, Cesare P.R. Romano (2011), has catalogued the full range of international legal interpretation bodies, noting that in many areas, the law is interpreted not by international courts (which may be absent or lack compulsory jurisdiction in a given case) but by other bodies such as treaty


secretariats or the various human rights and other committees that interpret and apply – often quite controversially – the text of international legal agreements. Strikingly, this broader canvas reveals that much of the work of legal interpretation is carried out not by judicial but by political bodies, the analysis of which might be seen as a comparative advantage for political science scholars; thus far, however, the work of these bodies has been examined almost exclusively by legal scholars.

[Need to review here the existing legal scholarship on non-court international legal interpretation bodies.

Conclude on note that it’s not just international bodies that can interpret international law. Domestic governments do so regularly, as do domestic courts – a point to which we return below under the rubric of compliance and internalization.]

C. Compliance

The subject of compliance with international law was long neglected by both international law and international relations scholars. Among international law scholars, there has been widespread acceptance, and almost ritual incantation, of Louis Henkin’s (1979: 47) famous claim that “almost all nations observe almost all principles of international law and almost all of their obligations almost all the time.” Against this intellectual background, only a handful of legal scholars sought to engage in any systematic analysis of state compliance with international law prior to the 1990s. International relations scholars similarly slighted the subject of legal compliance until recently, assuming that law per se had no independent causal influence on state behavior, with compliance attributed largely to states’ instrumental calculation of their own interests as well as to the shallowness of most international agreements (Downs, Rocke and Barsoom 1996).

During the course of the 1990s, scholars from both disciplines finally put issues of compliance front and center, resulting in the famous “management vs. enforcement debate,” which pitted a team of international legal scholars (Chayes and Chayes 1993, 1995) against skeptical political scientists (Downs, Rocke and Barsoom 1996). Abram and Antonia Chayes set forth a “managerial” theory of compliance premised on the assumption that states have a propensity to comply with their legal obligations.

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They argued that most cases of noncompliance are inadvertent, and result from ambiguous treaty language, low national capacity, or unavoidable time lags between commitment and compliance. The managerial school argues that sanctions are less useful than non-coercive managerial strategies in promoting compliance. Downs, Rocke, and Barsoom, by contrast, argued that high levels of compliance with treaty norms simply reveal the “shallowness” of many international agreements. They claimed that as regimes deepen and the gains from cooperation grow, so too do the incentives to defect. Thus, deeper agreements require correspondingly harder enforcement mechanisms.

A common perception among political scientists is that the management vs. enforcement debate was essentially “won” by the enforcement side, which demonstrated the limited usefulness of management techniques in precisely those situations where compliance was most problematic – as well as the naiveté of IL scholars. As Alexander Thompson (2013) argues, however, the “debate” formulation of the literature creates a tendency “to overlook the extent to which these arguments are complementary,” as well as the phased use of both management and enforcement mechanisms in many areas of international law (cf. Talberg 2002). For this reason, the debate between the management and enforcement schools, and the implication that one must choose between the insights of legal and political science scholars, is a false one.

Building on these early studies, IL/IR scholars have launched an intensive research program into the extent, the causal mechanisms, and correlates of state compliance with international law across a wide range of issue-areas. This literature, we have argued elsewhere, has made three signal contributions: a conceptual contribution, clarifying the meaning of compliance and its relation to other concepts such as enforcement and effectiveness; a theoretical contribution, in which various authors have identified numerous potential causal mechanisms that might explain compliance with international law; and a methodological

contribution, in which scholars have attempted to both measure and explain compliance with international law, both qualitatively and quantitatively, while controlling for competing explanations


and in particular for the problem of endogeneity and selection effects. We consider each, very briefly, in turn.

First, with respect to conceptual issues, Raustiala and Slaughter (2001) did much to clear the intellectual underbrush by distinguishing among a number of related and sometimes confused concepts, including compliance, implementation, enforcement, and effectiveness (c.f. von Stein 2013; and Martin 2013). The most commonly used term in the literature, compliance, is typically defined, as von Stein (2012) does, as “the degree to which state behavior conforms to what an agreement prescribes or proscribes.”50 So defined, the question of compliance is conceptually separable from that of implementation (defined in terms of state efforts to administer policy directives) and effectiveness (the extent to which a treaty solves the problem that led to its formation). Indeed, as a number of scholars have now pointed out, states may comply with (shallow) international agreements without engaging in any form of implementation, and without producing any effect with respect to the aims of the agreements. Conversely, states may undertake significant efforts to implement deep and demanding international agreements, resulting in effective efforts to address the stated problem, but fall short of full compliance (cf. Raustiala and Slaughter 2001; von Stein 2013; Martin 2013).

Second, in theoretical terms, the primary contribution of recent scholarship at the intersection of law and political science has been to move beyond broad debates about management and enforcement to much more nuanced and fine-grained examinations of the potential causal mechanisms whereby international law may induce compliance. Von Stein (2013) provides a comprehensive review of these mechanisms, which she divides into instrumentalist and normative categories. Instrumentalist mechanisms comport largely with the assumptions and predictions of rational choice theory, and include international inducements, retaliation, reciprocity, reputation, and the strategic actions of domestic actors

50 Von Stein also offers another important distinction, between first-order compliance (adherence to rules) and second-order compliance (adherence to rulings of international judicial bodies), which emerges as vital in Brewster’s (2013) analysis of the relationship between international dispute settlement and state reputation.

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and institutions. Normative mechanisms, according to von Stein, are diverse but “united in the view that compliance with international legal rules is not primarily motivated by states’ concerns about ex post costs”; examples here include explanations emphasizing expertise and capacity-building, the impact of law on norms and identity, and issues of legitimacy and fairness.

Third and finally, IL/IR scholarship has produced a dramatic increase in the number and sophistication of empirical compliance studies, in areas such as human rights law (Hathaway 2002, 2003; Goodman and Jinks 2003; Hafner-Burton 2005; Simmons 2009), international criminal law (Kelley 2007), and international humanitarian law (Valentino, Huth and Croco 2006; Morrow 2007). Many if not most of these studies are quantitative, in what von Stein (2013) refers to the quantification of compliance studies, and the best of these works are sensitive to and attempt to control for problems of endogeneity and selection effects, whereby international treaties may act to screen states rather than to constrain them (von Stein 2005, 2013; Simmons and Hopkins 2005; Koremenos and Betz 2013).

Despite these strengths of political science, this emerging literature has by and large ignored the substantial insights of mainstream international legal scholarship, and have in the process adopted a conception of international law, and compliance with that law, that is needlessly formalistic, paying too little attention to the full range of domestic processes whereby international law is or is not “internalized” into the domestic political and legal systems, treating international law as more determinate than in may be in practice, and ignoring potential effects of law other than that of promoting (or failing to promote) compliance. More concretely, we suggest, in keeping with the framework spelled out above, that political science scholarship (a) could learn from legal scholarship about the mechanisms whereby both governments and domestic courts internalize international law, and (b) could also learn from recent international legal scholarship about the full range of effects of international law, only some of which may be related to state compliance.

1. Causal Mechanisms and Internalization of International

Law


We have argued above that the central theoretical contribution of the political science literature of the past decade has been the specification of a wide range of instrumental and non-instrumental mechanisms that could lead states to comply with international law, including most notably the prospect that states may internalize the law. This emphasis on causal mechanisms, however, stands in strong tension to the primary methodological contribution of the political science literature, what von Stein (2013) calls the quantification of compliance studies, which excels in establishing correlations among variables but not at illuminating causal mechanisms.51 The solution to this mismatch, obvious in principle if extraordinarily challenging in practice, is for scholars to engage in multi-method research, combining large-n studies of compliance among large numbers of states with in-depth case study analysis allowing scholars to identify and trace complex causal mechanisms in action. Simmons’ Mobilizing for Human

Rights (2009) represents the most successful such effort to date, but more such work is needed to establish whether, and under what conditions, the many hypothesized mechanisms for international law compliance actually explain observed behavior, with particular emphasis on the reception of international law among national governments on the one hand, and national courts on the other. In both cases, we argue, political scientists stand to learn a great deal from little-read and in some cases long-forgotten legal scholarship. We offer just two examples.

First, with respect to the reception of international law in governments, we of course have several off-the-shelf IR theories, including most notably constructivist hypotheses about persuasion, acculturation, and diffusion of global norms. Yet these accounts often fail to distinguish between the impacts of legal and non-legal norms (Finnemore 2000), and many of them take a large-n, quantitative approach (citations to World Society literature, diffusion literature), failing to examine the micro-processes whereby national government officials take international law “on

51 In addition, although von Stein does not emphasize this point in her chapter, the vast majority of quantitative compliance studies operationalize “international law” in terms of state ratification of treaties, thereby ignoring both customary international law as well as the possibility that widely accepted international legal norms might exert a normative impact even on states that had failed to ratify them.

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board.” In this respect, we argue, political scientists could learn a great deal from the international legal process school discussed in Part I of this paper, and in particular from the classic of that genre, Abram Chayes’ exploration of the role of international law in the Cuban Missile Crisis. In our experience, Chayes’ long-out-of-print book is rarely read among either lawyers or political scientists today, yet offers important insights and puts the lie to the notion of international legal scholarship as doctrinal, formalist, or naïve regarding the real-world impact of international law. We therefore take the liberty here of summarizing Chayes’ project, methods, and findings.

Chayes selects the Cuban Missile Crisis for his study, in part because he had been an active participant in the crisis as legal advisor to the State Department, but primarily because the life-or-death security aspect of the crisis constitutes a hard case for those who would claim an important causal role for international law.52 Chayes is clear that “a legal position was obviously not the sole ingredient of effective action.53 However, in keeping with the aims of the broader ILP school, Chayes notes,

The series of studies of which this is one addresses the question “how” law enters the policy-making process, not “how much”…. We are not asking for a catalogue of the ways in which law might have affected the course of action chosen. We are asking about the ways in which it did influence action. To be included in the catalogue any particular “way” must, at least arguably, have been substantial among the relevant elements and considerations that went into the amalgam of decision. (Chayes 1974: 4)

By political science standards, Chayes’ text lacks a clear discussion of research design. Besides the selection of the Cuban Missile Crisis as a hard case, explicit discussion of measurement

52 “It is the harshest test of international law, perhaps an unfair test, to ask whether and how it affected the decisions and acts of men, who saw themselves as grappling with issues of national survival.” Chayes 1974: 1. 53 Abram Chayes, Law and the Quarantine of Cuba, Foreign Affairs (April 1963).


issues, and/or controlling for competing explanations for the observed outcomes, is lacking. Yet Chayes offers a compelling set of theoretical arguments about the nature of law and the nature of governmental decision-making, both of which have methodological implications regarding the correct method whereby scholars might assess the impact of the former on the latter. On both questions, Chayes argued, international relations scholarship was characterized by “transparent but pervasive misconceptions” (Chayes 1974: 101) which obscured understanding of the real relationship between international law and state behavior.

With respect the nature of governmental decision-making, Chayes is clear in his denunciation of the unitary rational-actor model, “the tendency to think of government decisions as the product of a single, rationally calculating brain.”

Discussion of the role of law in foreign-policy decision is especially prone to this anthropomorphic fallacy. Both analyst and audience tend to see the law as a rule or norm, typically a prohibition, addressed to a man, or to a monolithic subject of law. The decision-maker is visualized as a client getting advice from his lawyer about whether a proposed course of action is “legal” or not. The role of law in the decisional process is settled by whether the decision-maker “followed” this advice – particularly if it was negative (Chayes 1974: xx).

By contrast with this view, Chayes, drawing on the bureaucratic politics model of Graham Allison, argues that “decision-making is a corporate process in which individual participants react to different constellations of personal, bureaucratic, and political motives and constraints” (Chayes 1974: 101).

While this conception of state action will be familiar to any political scientist, Chayes’ conception of international law runs sharply contrary to the caricature of the international lawyer as a doctrinal, black-letter positivist, who believes in the clarity and determinacy of law. Drawing primarily from legal realism, Chayes firmly rejects what we might call the “law as rules” approach. Instead, Chayes presents a view of law, and especially international law, as being inherently vague and often

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“indeterminate” as to the legality of any given action, leaving a wide latitude for interpretation by courts, states, and other actors:

Most people, laymen and lawyers alike, typically think of law as a prohibition, a thou-shalt-not. It is a set of rules proscribing certain conduct… with penalties or sanctions attached to violation. Whether from a desire to avoid the sanction or otherwise, conduct is brought into compliance with the applicable rule or norm. Non-complying conduct is constrained.

A little reflection shows that this is only a partial, and on the whole distorting, view of the legal system….

[E]ven if conduct violates a relatively determinate legal standard, it does not necessarily follow that the action was unaffected by the law. Do we believe that the behavior of a man travelling 65 miles an hour on a super-highway with a 60-mile speed-limit was not constrained by law?

[I]n most cases [however] the applicable law is by no means as clear as the speed-limit. In case of any difficulty, it is not possible to say categorically in advance whether the proposed course of action is “lawful” or not. Partly this is because legal consequences, especially in the common-law tradition, are very sensitive to nuances of fact-setting and the concrete details of the challenged activity. These do not emerge until the action is taken. The relevant facts are, in a sense, defined by the action.

The indeterminacy of the law, however, runs deeper…. In principle, under the conventions of the American system, no lawyer or collection of lawyers can give a definitive opinion as to the legality of conduct in advance. Only an entity, usually a court, officially empowered for the purpose and duly invoked in accordance with


procedures by which it is authorized to act, can give a conclusive answer to a question of legality….

In these circumstances, it may not be too difficult to advise a client whose aim is to stay out of entanglement with the law at all costs. The legal advice will be not to act. But in most cases the objective of avoiding legal difficulties will not be the primary one, nor should it be. Legal advice must come to the client in the form of an assessment of risks and probabilities, with the client, by and large, making the choice of which we will bear… (Chayes 1974: 27).

If, in Chayes’ view, “law is not a set of fixed, self-defining categories of permissible and prohibited conduct,” the same is especially true of international law, “because of the diffuse modes of establishing and clarifying rules.” That is to say, because much of international law is often vague, consisting of murky customary international law norms or of laboriously negotiated and often vague treaty provisions, and because much of international law is not adjudicated in court but is left to the multiple, competing interpretations of states, international organizations, non-governmental organizations and legal scholars, international law cannot be thought of as a set of determinate rules, to which the behavior of states can be easily and unproblematically compared in order to determine conclusively whether a given state is in compliance. And yet, Chayes pointedly notes, in a comment that could be applied to much contemporary political science scholarship, “there are many who still consider that legal advice or criticism in the international field consists of laying the norm invoked beside the challenged decision and seeing whether the latter squares with the former” (Chayes 1974: 101).

In place of this view, Chayes continues,

International law, in its normative sense, must be seen as indeterminate with respect to much of the array of concrete choices open in a particular situation. Often the rules have no authoritative formulation in words. Even when they do, the terms are open to a broad range of interpretation and emphasis (Chayes 1974: 101).

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This inherent indeterminacy of international law, finally, is highlighted “when the conduct of the state is at issue,” because the state – and even the executive branch on which Chayes concentrates his attention – is not a unitary actor but a group of actors, each with personal and bureaucratic interests and perspectives (Chayes 1974: 28).

For Chayes, these difficulties are not a counsel of despair about the potential influence of international law on state behavior, but they do provide methodological counsel about the ways in which to observe that influence: not by naively “laying the norm invoked beside the challenged decision and seeing whether the latter squares with the former,” but rather by examining the decision-making process of the state with an eye to the ways in which lawyers and legal arguments actually find their way into the decision-making process. Chayes – who served as the State Department legal advisor at the time of the crisis and was a participant in the decision-making process – concludes that law influenced the behavior of the US government during the Cuban missile crisis in three primary ways: (1) as a constraint on action, with legal arguments helping to sway the governmental debate from the option of an air strike toward the eventual naval “quarantine”; (2) as the basis of justification or legitimation for action; and (3) as “providing organizational structures, procedures, and forums,” including most significantly the Organization of American States (OAS) and secondarily (given the Soviet veto in the Security Council) the United Nations (Chayes 1974: 7).

Nevertheless, the primary interest of Chayes’ book for our purposes here is not his substantive findings about the Cuban Missile Crisis, the story of which has in any event been clarified by the subsequent release of archival materials, but rather the method of investigation, the subtle conception of the interrelation of law and politics, and the tentative but generalizable conclusions that Chayes draws from his case study. Chayes himself identifies four general findings.

The first is that the law is not self-executing. Legal rules do not announce their scope of application. Rather, much depends on the skill and knowledge of legal professionals, and on the contingencies of their personal relationships with other bureaucratic actors. In Chayes’s words:


First, law is not self-activating. On the whole, it does not project itself into the deliberations on its own motion. Someone must call the lawyers in…. The impact of the legal presentation will depend on how much time is available for careful and considered development and how early and how insistently it is put before the responsible operating officers. This in turn depends on factors that condition all lawyer-client relations, public and private. How do the legal offices fit into the particular bureaucratic structures involved? What are the personal relations between the lawyer and his immediate client?... (Chayes 1974: xx)

Second, it is a mistake to consider law as a determinate set of rules that compel certain outcomes. Rather, legal rules are often indeterminate, meaning that it is invoked by actors advocating for different policy outcomes. As Chayes (1974: 102-103) writes:

. . . if legal precepts are not exogenous data, dividing the universe into choices of the permissible and impermissible, if legal analysis is always indeterminate, then at best legal reasoning and analysis will impact on alternatives in terms of more or less, not yes or no. Law cannot determine decision, and it is an essential point of this study that we should not expect it to do so…. The corporate character of decision-making ensures that these differentiating considerations will be pressed home by the participants whose policy positions they favor. The persuasive force of such arguments and their final influence will depend on infinitely complex moral, psychological, and interpersonal processes of group decision-making. Quantification, as we have said, must always elude us. But the position that the ultimate impact is de minimus cannot be maintained.

Third, indeterminacy does not mean that law is unimportant. Rather, public acceptance of controversial policy decisions requires a public legal justification of a government’s actions. In this context, “justification” consists of the defense and explanation of an action in terms of international legal rules and

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principles. Chayes argues that “ ‘mere’ justification carries greater practical importance for the success or failure of great decisions than is commonly supposed by the analysts.” As Chayes explains,

. . . the requirement of justification suffuses the basic process of choice. There is continuous feedback between the knowledge that the government will be called upon to justify its action and the kind of action that can be chosen…. Some of the characteristics of law give it special importance for public justification. Because the scope and variety of the audiences addressed, that process must proceed in terms of more or less universal and generalized criteria…. [In addition to moral and ideological considerations,] Legal principles are also regarded as quasi-universal or at least generally accepted. They are thus well adapted to the needs of public justification…. Law thus becomes a prominent element in the justification process. (Chayes 1974: xx)

In this context, Chayes is careful to emphasize that law’s indeterminacy does not mean that all arguments are equally persuasive. Instead, solid legal analysis can “distinguish a persuasive from a specious rational, a responsible and serious performance from a trivial one.” In this sense, the requirement of legal justification can provide “an important substantive check” on the legality of policy, and on the integrity of decision-making processes.

Finally, Chayes emphasizes the central ILP insight regarding law’s role in allocating decision-making authority among various institutions:

[xx] decision must take account of the international organizational setting against which the action is projected. Since the organizational setting is in a strict sense the product of international law, this amounts to identifying a major and continuing legal influence on decision. International institutions, moreover, are a focused an intensified arena of public justification. They are peculiarly sensitive to the legal elements of the position, because the


organizations themselves are dominated by legalistic modes of procedure (Chayes 1974: 102-104)

Our point in citing Chayes so extensively is not that he is correct in his assessment of the role of international law in US decision-making, either during the Cuban Missile Crisis or otherwise.54 Indeed, it is worth noting that Chayes limited his focus the executive, remaining virtually silent on the role of either Congress or the Courts. And he confined his analysis to the United States, making no effort to consider how international law might influence policy-making in other types of political systems.

Nevertheless, a careful reading of Chayes should put to rest any preconceived notions of international lawyers as necessarily holding naïve views about the nature of law or its influence on state behavior. Chayes’ dual approach – disaggregating the state and in particular the executive branch, and recognizing that international law can act not so much as an unambiguous constraint as much as a process through which claims and counter-claims are made, and a resource for various actors in the process – was once commonplace among legal realist scholars, and yet is largely forgotten by modern political science scholarship. Chayes’ disaggregation of the state does, of course, find echoes in some contemporary political science scholarship, particularly in liberal studies like Simmons’ which examine how not just executive but also legislative, judicial, and civil-society actors use international law to bolster their arguments and positions in domestic policy debates (see e.g. Simmons 2009; others). And to some extent Chayes’ acknowledgment of the potential indeterminacy of law arguably finds its way into contemporary IR through the emphasis on “precision” as a variable in the “legalization” framework, yet we are aware of no contemporary political science scholarship that explores the ways in which an indeterminate international law offers multiple constraints and resources to actors on multiple sides of domestic policy debates.

54 We acknowledge, in particular, the contrary views of Dean Acheson, who was a member of the Executive Committee that advised President Kennedy during the crisis, and who argued that “The power, position and prestige of the United States had been challenged by another state; and law does not deal with such questions of ultimate power,” as well as those who challenged the legality of the Kennedy Administration’s actions.

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Finally, to the extent that contemporary IR scholars do examine the role of law in states’ domestic and foreign policies, we arguably see a bias in favor of a few specific issue-areas, including in particular human rights, and (with a few exceptions, such as Morrow 2007) away from the national security decisions that were the focus of Chayes’ work.

Perhaps the closest thing to a successor to Chayes that we find in contemporary scholarship is another legal scholar, Jack Goldsmith, who like Chayes was a participant as a legal advisor (in the White House Office of Legal Counsel) during a period of upheaval in national security, and who in a pair of recent books assesses how a vague body of national and international laws fed into the debates inside the Bush and then the Obama administrations’ war on terror (Goldsmith 2007, 2012). Like Chayes, Goldsmith explores the roles of law and of lawyers in the policy process, examines frankly the disputes among lawyers regarding permissible interpretations of sometimes vague international laws, and underlines also the key question – familiar to students of epistemic communities but largely ignored with respect to law – of the relationship between legal advisors and their political principals.

Like Chayes, Goldsmith finds a significant role for law, both domestic and international, in constraining and shaping the response of the federal government to the national security threat posed by international terrorism. Indeed, Goldsmith’s book serves as testimony to the changes in both domestic and international law in the five decades since the Cuban Missile Crisis. For, despite the many and ongoing legal debates of the status of the Guantanamo Bay detention facility, the treatment of prisoners, the use of wireless wiretapping and other personal data, and the use of drones to target suspected terrorists around the world, Goldsmith finds an “accountable presidency,” not to say a presidency “ensnared by law,” as a result of Congressional reforms in the 1980s (e.g., the War Powers Act, the Foreign Intelligence Surveillance Act), the increasing activism of U.S. courts in supervising the actions of the executive, and the subsequent fear of prosecution among national security officials (Goldsmith 2007, 2012). These prominent features of Goldsmith’s account are almost entirely absent from Chayes’ account of the Cuban missile crisis, and point to a


dramatically changed legal landscape in which international and national law clearly inform and constrain presidential action in national security far more than they had in the past.

Goldsmith’s extensive focus on the role of the courts in restraining presidential action raises a final point for this section, regarding the reception of international law in national courts more generally. Over the past two decades, IR scholars have of course discovered and studied international courts, yet if we are interested in the internalization of and compliance with international law, then the reception of international law by national courts is a natural topic of interest. Here, we find a very large and sophisticated political science scholarship on one specific question, the reception of European Union law among national courts in the EU’s member states, where several generations of scholarship has examined the ambiguous relationship between the European Court of Justice (ECJ) and national courts, which have served alternately as allies of the ECJ, empowered by their special relationship and their ability to engage in judicial review of legislative and executive action, and as sources of resistance to the impingement of the EU on national legal and constitutional orders (Stone Sweet 2010). Outside the EU context, however, political science scholars have been nearly silent on the question of international law in domestic courts, a topic that has been left almost exclusively to legal scholars.55

2. Against Compliance, or Beyond Compliance?

In an important and provocative paper, Lisa Martin flips our thesis on its head and effectively argues that IR scholars have paid too much attention to international legal scholars (Martin 2013). In particular, Martin criticizes political scientists’ focus on compliance when trying to understand the effects of international institutions and organizations on state behavior. Martin argues that “compliance is a legal concept that is unusually ill-suited to the

55 Indeed, in a later iteration of this paper we propose to undertake a review of the legal literature on the use of international law both in the U.S. Supreme Court, which has been the subject of intense and systematic scrutiny by legal scholars, and comparatively. See, respectively, Sloss, Ramsey and Dodge 2011, and Nollkaemper et al. 2012.

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central social-scientific pursuit: the identification and measurement of causal effects” (Martin 2013:591).

Martin illustrates her claim with a stylized example, already alluded to above. Imagine that state A and B enter into an environmental treaty limiting emissions of a pollutant to X tons per year. Suppose that state A already has strong domestic environmental laws that are more stringent than the norms set out in the treaty. State A would be fully in compliance with the treaty, but the treaty would have no causal effect on A’s behavior. Suppose that state B had very lax domestic environmental laws. In response to the treaty, state B might decrease emissions substantially, although not enough to meet treaty requirements. In this case, state B would be criticized for not being in compliance with the treaty – even though the treaty has triggered significant behavioral changes. Extrapolating from similar examples, Martin claims that the focus on compliance leads IR theorists into “errors of both omission and commission – mistakenly attributing state behavior to institutional participation, and underestimating the influence on states that are not ‘in compliance’” (Martin 2013: 591-2). To remedy this problem, Martin urges that compliance be “dropp[ed]. . . as a central concept in the study of institutional effects” (id. at 592)

Significantly, Martin’s argument is not limited simply to the claim that political scientists should redirect their attention to changes in state behavior. Rather, she views IR’s misplaced focus on compliance rather than effectiveness more broadly as “a cautionary tale about the risks associate with celebrating interdisciplinarity without careful attention to the different demands and purposes of various disciplines.” While we have argued above that scholars should be cognizant of the differing aims of IL and IR scholarship, we believe the moral of Martin’s story runs in precisely the opposite direction. In fact, international legal scholars have long been careful to disentangle the related, but hardly identical, concepts of compliance and effectiveness. Moreover, lawyers have developed much richer conceptualizations of compliance, noting that this term is not exhausted by the notion of “behavior in conformity with rules” and that law’s impact can be measured in many ways other than directly influencing state behavior. Thus, while Martin’s review of the literature lead her to


the conclusion that attention to legal writings has led IR scholars astray, we think that increased attention to IL scholarship can enrich IR thinking about both compliance and international law’s effectiveness.

A) Beyond Compliance as Conformity with Rules

Nearly two decades ago, legal scholar Benedict Kingsbury argued that “the concept of compliance with law does not have, and cannot have, any meaning except as a function of prior theories of the nature and operation of the law to which it pertains. ‘Compliance’ is thus not a free-standing concept, but derives meaning … from theories [of law], so that different theories lead to significantly different notions of what is meant by ‘compliance.’”56 Kingsbury’s insight provides an important clue into how IL writings can deepen IR understandings of both compliance and law.

In much IR scholarship, law is understood as a set of rules or norms, and compliance is straightforwardly understood as behavior in conformity with those norms. However, as highlighted in part II above, the centrality and significance of rules to law varies enormously across the range of theoretical approaches that characterize contemporary international legal scholarship. In particular, many modern conceptions of law foreground process, and from these perspectives, viewing compliance as conformity with rules is incomplete. Rather, compliance is more comprehensively described in terms of iterative processes that involve relevant international institutions, interested states, and other actors.

We’ve described above how Chayes’s “international legal process” approach addresses compliance. Here, we highlight Harold Koh’s competing “transnational legal process” approach. Drawing on examples from human rights, environment, arms control and other areas, Koh develops a theory of compliance that envisions three distinct “phases,” which Koh labels interaction, interpretation, and internalization. As Koh explains, compliance occurs when

56 Benedict Kingsbury, The Concept of Compliance as a Function of Competing

Conceptions of International Law, 19 MICH. J. INT’L L. 346, 346 (1998).

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One or more transnational actors provokes an interaction (or series of interactions) with another, which forces an interpretation or enunciation of the global norm applicable to the situation. By so doing, the moving party seeks not simply to coerce the other party, but to internalize the new interpretation of the international norm into the other party’s internal normative system. The aim is to ‘bind’ that other party to obey the interpretation as part of its internal value set. Such a transnational legal process is normative, dynamic, and constitutive. The transaction generates a legal rule which will guide future transnational interactions between the parties; future transactions will further internalize those norms; and eventually, repeated participation in the process will help to reconstitute the interests and even the identities of the participants in the process.57

Koh argues that through this three step process, domestic decision making “becomes ‘enmeshed’ with international legal norms, as institutional arrangements for the making and maintenance of an international commitment become entrenched in domestic legal and political processes. Domestic institutions adopt symbolic structures, standard operating procedures, and other internal mechanisms to maintain habitual compliance with the internalized norms.”58 In this way, institutions develop institutional memory and create precedents to advance, rather than conflict with, the internalized international norms.

To be sure, Koh’s conceptualization of compliance may not be fully satisfactory. As Robert Keohane has pointed out, Koh’s writings may evidence “selection bias.”59 Notably, Koh rarely attempts to justify or explain his case selection, or to control for competing explanations of his data. Moreover, his writings often highlight international law’s success stories, but these hardly

57 Harold Hongju Koh, Why Do Nations Obey International Law?, 106 YALE L. J.. 2599 (1997). 58 Id. at xxx. 59 Robert Keohane, When Does International Law Come Home?, 35 HOUSTON

L. REV. 699 (1999).


constitute a representative sample, as states do not always domesticate international legal norms, and many efforts to use transnational legal process to produce internalization are less than entirely successful. Perhaps more importantly, Keohane argues that Koh has identified two different causal pathways through which compliance occurs. One is through “exclusion from the club,” where failure to follow international norms results in denial of the benefits of cooperation, and potentially leads to conflicts with club members.60 This process, which occurs at the international level, is primarily horizontal and is driven by state actors. The other causal pathway is triggered by “transnational norm entrepreneurs” and involves pressure from social groups and issue advocacy networks.61 This pathway is primarily domestic and has many “vertical” components. Keohane suggests not only that Koh fails to adequately distinguish between these two pathways, but also that the distinction is crucial because the reasons “for success or failure are different across pathways,” and hence any strategies for enhancing compliance must identify which pathway is of relevance.62

For current purposes, we are less interested in whether Koh is guilty of selection bias or has failed to disentangle multiple causal pathways than in the implication of the underlying move away from a focus on rules to an alternative conception of the nature and workings of international law. This move leads to an alternative conception of compliance. Assuming, as critics suggest, that this alternative understanding had led Koh to identify multiple pathways that promote compliance, we take this as a potential strength of the theory that calls for further refinement and testing. The larger point is that engaging with Koh’s work – as that of other process-based theorists – highlights that the measure of compliance and identification of mechanisms that promote compliance necessarily rest upon a prior conception of the nature and workings of international law, and that international legal theory has developed a rich palate of conceptions of international law.

60 Id at 702. 61 Id. at 705. 62 Id. at 709.

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B) Beyond the Compliance/Effectiveness Distinction

Martin’s central claim is that IR scholarship mistakenly focuses on compliance, rather than the more relevant concept of effectiveness. She argues that many IR writings conflate the concepts of compliance and cooperation (see, e.g., Kelley 2007, Morrow 2007), or focus on factors that promote compliance, but that such information reveals little about the causal impact of international agreements (Martin 2013: 593). As Martin notes, however, “legal scholars seem to be more sensitive to the distinction between compliance and institutional effects than most political scientists have been” (Martin 2013: 600). Indeed, legal scholars have long recognized the distinction between compliance and effectiveness. In 2000, legal scholar Kal Raustiala foreshadowed Martin’s claims by noting that “the prevailing analytical focus on compliance is often misplaced and even counterproductive” as “compliance with . . . treaty commitments is in practice often inadvertent, coincidental, or an artifact of the legal rule or standard chosen, the sheer fact of compliance with a given commitment tells us little about the utility and impact of that commitment.”63

Significantly, legal scholars not only note this distinction, but have moved beyond it. For example, the American Society of International Law’s 1997 Annual Meeting was devoted to “Implementation, Compliance and Effectiveness,” and the Michigan Journal of International Law ran a symposium on this topic in 1998. At roughly the same time, Anne Marie Slaughter and Kal Raustiala, Edith Brown Weiss, and Ibrahim Shihata insisted on the importance of distinguishing among implementation, compliance, enforcement and effectiveness.64

63 Kal Raustiala, Compliance and Effectiveness in International Regulatory

Cooperation, 32 CASE W. RES. J. INT’L L. 391 (2000). 64 Kal Raustiala & Anne Marie Slaughter, International Law, International Relations and Compliance, in HANDBOOK OF INTERNATIONAL RELATIONS (2002); Edith Brown Weiss, Understanding Compliance with International

Environmental Agreements: The Baker’s Dozen Myths, 32 U. RICH. L. REV. 1555 (1999) (drawing, in part, from COMPLIANCE WITH INTERNATIONAL ENVIRONMENTAL AGREEMENTS (Edith B. Weiss & Harold K. Jacobson eds., 1996)); Ibrahim F.I. Shihata, Implementation, Enforcement, and Compliance

with International Environmental Agreements, 9 GEO. J. INT’L ENV. L. 37 (1997).


Harold Koh introduced a slightly different categorization, arguing that congruence between behavior and norm can reflect coincidence, conformity (actors follow the rule when it is convenient, but without a sense of obligation to do so), compliance (actors follow the rule to obtain benefits or avoid costs), or obedience (when actors internalize the norm into their internal value system).

The legal literature provides a lively debate over which of these various phenomena should be the focus of scholarly attention. For example, while Koh’s theory explicitly seeks to move parties from compliance to obedience, other international lawyers counter that obedience is too ambitious a goal, and pursuing it may undermine legal efforts to shift behavior in desirable ways (Ratner 2013). Moreover, several branches of IL scholarship have extensively explored the complex relationships between compliance and effectiveness. An early example of such work is found in an extended debate between two leading trade law scholars, John Jackson and Robert Hudec, over the impact of greater legalization of the trade system on state compliance with trade rules. Jackson long urged a shift to more certain rules and more highly judicialized dispute processes, arguing that greater legalization would increase compliance with WTO rules and hence the effectiveness of the WTO system. In contrast, Hudec highlighted the dangers of over-legalization, and warned that an increased emphasis on compliance could spark a backlash that could actually undermine the effectiveness of the trade regime. These themes were developed and extended in various directions primarily, although not exclusively, by IL scholars writing about trade (Dunoff 1999, Trachtman 1999, Davey 2000, Goldstein and Martin, 2001). Other IL scholars, some influenced by IR, have examined the relationships between compliance and effectiveness in other areas of international law, such as human rights, where Helfer, and Cavallaro and Schaffer, have warned about the dangers of overlegalization,65 and environment, where Raustiala has examined which compliance strategies are more likely to produce

65 Laurence R. Helfer, Overlegalizing Human Rights: International Relations

Theory and the Commonwealth Caribbean Backlash Against Human Rights

Regimes, 102 COL. L. REV. 1832 (2002); James L. Cavallaro & Emily J. Schaffer, Less as More: Rethinking Supranational Litigation of Economic and

Social Rights in the Americas, 56 HASTINGS L. J. 217 (2004)

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effective outcomes.66 Thus, the legal literature has long moved beyond the central insight of Martin’s paper, namely that compliance levels reveal little about a rule’s causal impact, to various case studies that explore how compliance can enhance or undermine effectiveness.

C) Beyond influencing state behavior

Finally, to the extent IR studies of compliance focus on whether state behavior is consistent with applicable legal norms, this literature fails adequately to account for the diverse ways that international law can impact behavior, and the various actors that international law can impact. International lawyers have adopted Louis Henkin’s advice to “think beyond the substantive rules of law to the function of law, the nature of its influence, the opportunities it offers, the limitations it imposes.”67 As a result of the richer conceptions of the nature and workings of law outlined above, international lawyers have generated a broader understanding of law’s effects than is commonly found in IR writings. We’ve already noted that Chayes emphasized that, in addition to acting as a constraint on action, international law serves “as a basis of justification or legitimation for action” and that law allocates decision making authority among different “organizational structures, procedures and forums” through which decisions are reached.

In a recent paper, international legal scholars Robert Howse and Ruti Teitel enumerate some of international law’s effects beyond inducing states to conform their behavior to international rules,68 including:

• international legal norms can impact the ways that policy makers and other elites understand particular problems and conflicts, such as whether an issue involves conflicting interests or claims of right. For example, the recent debate over the

66 Raustiala, supra note x. 67 LOUIS HENKIN, HOW NATIONS BEHAVE 4-5 (2d ed. 1979).. 68 Robert Howse & Ruti Teitel, Beyond Compliance: Rethinking Why

International Law Really Matters, 1 GLOBAL POL. 127 (2010).


legality of targeted killings, and the release of Department of Justice White Paper on the issue, have overshadowed broader political and strategic considerations that might inform debate over this policy;

• international legal norms may provide benchmarks for a wide range of private actions, including by multinationals and other transnational actors, even when the relevant norms are not formally addressed to private action or particular private actors. Thus, when the EU adopts certain international regulations for chemicals or food additives, private producers in other jurisdictions may well change production processes so that they can continue to access EU markets, even if the producers’ home jurisdiction did not adopt these chemical regulations. Similarly, multinational banks, accounting firms, and other service providers may adopt international standards, even if they are not formally bound by these standards;

• international legal norms may impact domestic legal developments, even when the international norms are not directly binding, including by influencing the interpretation of domestic law. Thus, in a series of controversial decisions, the United States Supreme Court referenced international legal norms when interpreting analogous provisions of the U.S. constitution.69 Moreover, U.S. courts routinely hold that federal statutes should not be interpreted so as to conflict with the nation’s international legal obligations. The Second Circuit recently relied on this principle in dismissing a claim that foreign airlines had in violation of state antitrust law.70

69 See, e.g., Roper v. Simmons, 543 U.S. 551 (2005); Lawrence v. Texas, 539 U.S. 558 (2003). For a sampling of the controversy sparked by use of international law in this context, see CTBS. 70 In re Air Cargo Shipping Services Antitrust Litigation, 697 F.2d 154 (2d Cir. 2012).

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Other states have use similar canons of construction to interpret domestic statutes consistent with the state’s international legal obligations.

• international legal norms may influence the outcomes of bargaining among public and/or private actors. Legal rules obviously change the strategic environment in which states negotiate disputes, and, as Coase taught, impact both the substantive and distributional consequences of any agreements reached. Thus, international legal rules will effect state behavior, even if the resulting agreement is not entirely in compliance with applicable legal norms. Much the same analysis applies to bargains or transactions among private parties.

In each instance, Howse and Teitel argue, international law matters in ways that impact a diverse range of actors, all of which would be missed by a simple focus on compliance as the correspondence of behavior and rules.

In short, Koh’s “transnational legal process” approach and Chayes’s “international legal process” approach – as well as other international legal theories -- offer alternative understandings of the effects and effectiveness of law to those found in much IR scholarship. These claims may sound deceptively similar to those Martin makes. However, these legal analyzes go much further than Martin does. Rather than being against compliance, as Martin is, these legal approaches urge us to move beyond compliance. Contemporary legal theory suggests we can do so by focusing less on states’ behavioral compliance with often indeterminate legal norms than on how legal processes shift disputes into alternative processes and decision making fora. These legal approaches also teach that international law’s effectiveness cannot be measured simply through compliance with rules, but through taking account of law’s multiple effects on a broad range of legislative, executive, judicial, and private actors.

CONCLUSION


IL scholars have learned much from IR theory; the importation of insights and methods from IR over the past two decades has significantly advanced the discipline (Dunoff and Pollack 2013; Hafner-Burton, Victor and Lupu 2012). To date, however, the direction of intellectual influence between these two disciplines has been largely in one direction, with legal scholars absorbing lessons from IR but with political scientists largely ignoring legal scholarship. IR scholarship has paid a price, we believe, for its overreliance on off-the-shelf theoretical concepts from international relations and its neglect of the insights of international relations scholarship, adopting in many cases an impoverished and unwittingly formalist view of international law and its role in international politics.

The burden of this paper has been to outline why it is time for the intellectual influence to run in both directions. We believe that IR scholars can learn much from IL theory and scholarship, and that doing so can promote a variety of scholarly undertakings. In terms of the making of international law, we have argued, IL scholarship can enrich the application of IR-theoretical approaches like rational design, as well as shedding light on neglected issues such as customary law. In terms of interpretation, IR scholarship’s focus on judicial behavior stands to be enriched by greater attention to judges interpretive choices and strategies, and also by a greater focus on the many other actors, besides international courts, which engage in international legal interpretation. In terms of compliance and effectiveness, finally, we argue that legal scholarship promises a richer view of the ways in which a frequently indeterminate international law is internalized (or not) and influences (or does not influence) state behavior, in ways that go beyond the simple question of compliance or noncompliance.

We recognize that making this argument to a political science audience is uphill work, as we are asking scholars to read and engage with an unfamiliar and sometimes technical scholarship, and one that was in most cases written toward normative ends that are far from the positivist, explanatory aims of most contemporary political science. We also recognize that in making our arguments we may be engaging in what statisticians call type 1 or type 2 errors. We may, that is, be reporting false positives, insofar as we identify a positive contribution in legal scholarship whose value-added contribution may in fact appear

78


trivial to political scientists. Or we may be reporting false negatives, in the sense that we fail to identify and report the most promising value-added contributions of legal scholarship to the common aims of IL and IR scholarship. On both counts, we welcome corrections and suggestions for improvement.


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