Opinio Juris On-Line Symposium: Challenges to Public International Law

Several months back, Opinio Juris put out a call for papers for our inaugural on-line symposium to junior scholars. The theme was described as follows:

As long as people have been writing about public international law, commentators have suggested that it is a system in crisis or somehow under stress. After a moment of optimism at the end of the Cold War, scholarship has returned to the challenges of international law. Opinio Juris is convening an on-line symposium to carefully consider just what these challenges may be: Terrorism? Hegemony? Illegitimacy? Or other topics that have not yet been fully explained? Is the problem that international law is too weak to make a difference or that its institutions are invasive to the point of being undemocratic?

We are pleased to announce the following participants and papers (abstracts and links to the full texts of the paper are below), along with the commentator for each paper:

Jacob Cogan, Assistant Professor, University of Cincinnati Law School
Non-Compliance and the International Rule of Law

Commentator: Joost Pauwelyn, Professor of Law and Director of JD/LLM program at Duke Law School

Gregory Gordon, Assistant Professor of Law, University of North Dakota Law School
Toward an International Criminal Procedure: Due Process Aspirations and Limitations

Commentator: Mark Drumbl, Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute, Washington & Lee Law School.

Vik Kanwar, JSD candidate, NYU, visiting fellow, Loyola New Orleans Law School
The Legislator of Last Resort: Security Council’s Emerging Role in WMD Proliferation Crises

Commentator: Sean Murphy, Professor of Law, George Washington University Law School

Eugene Kontorovich, Visiting Professor, Northwestern University Law School Inefficient Customs in International Law

Commentator: Andrew Guzman, Professor of Law, UC Berkeley, Boalt Hall

Hari Osofsky, Assistant Professor, University of Oregon Law School
Climate Change Litigation as Pluralist Legal Dialogue

Commentator: John Knox, Professor of Law, Wake Forest University Law School

The Symposium papers address a range of issues at the top of the international law agenda (regulation of WMDs, climate change, international criminal law, the problems of custom and compliance) and employ diverse methodological and theoretical approaches. Jacob Cogan’s paper challenges the assumption that compliance with international law is a necessary normative goal. Eugene Kontorovich addresses the puzzle of custom, taking a rational choice approach to the question of efficiency of customary international law. Vik Kanwar sheds light on the role of the Security Council by examining its political and law-making power through the lens of WMD non-proliferation. Greg Gordon examines and explains what he describes as a due process shortfall in international criminal procedure. Hari Osofosky views the multiplicity of climate change litigation from the perspective of legal pluralism.

Each paper grapples with the “relevance” of international law and challenges, in one way or another, the traditional Westphalian order — that international law is simply inter-State agreements and compliance results from coercion (legal or political). At least since the creation of the League of Nations, the project of explaining and predicting a “new” post-Westphalian international order seems to renew itself with each new generation of scholars. Exemplified by the papers in the symposium, this generation brings to the table a fresh perspective, not only challenging the traditional order, but also thoughtfully re-evaluating the extent to which the traditional order and its rules endure.

This symposium itself is evidence of shifting traditions in international law. Not unlike diplomats, we still value coming together in a formal space at a preordained time to exchange ideas and inform ourselves about the developments in the law – as we are doing in Washington at the ASIL Annual Meeting. But new technologies permit the creation of non-traditional networks and the dissemination of knowledge in new forms. This blog enables us, at very little cost, to bring together participants from around the country (and the globe) in a way that a symposium in a conference room cannot. Just as international law is increasingly made by non-traditional actors through non-traditional methods, scholarly exchanges are no longer limited to formal conferences, regulated by an institutional host. Perhaps most important, it enables readers to access scholarship free from subscription or membership fees. The lowering of barriers to knowledge is, perhaps, the greatest and most enduring contribution of this new medium.

We would like to give special thanks to our stellar group of outside commentators — all international legal scholars of the highest caliber and reputation. Without their generosity of time and expertise, the symposium could not have happened. We look forward to their insights on the papers and to a lively interchange with our general readership.

The symposium will proceed as follows: Paper abstracts and links to the full text of the papers are posted below. Tomorrow, the comments from our outside discussants will be posted, along with replies from the authors. These posts will be open to comments – by the authors, the outside commentators and the general Opinio Juris readership.