Symposium: Osofsky Reply to Knox

Symposium: Osofsky Reply to Knox

[Hari Osofsky is Assistant Professor of Law at University of Oregon and a contributor to the Opinio Juris On-Line Symposium. She blogs regularly at IntLawGrrls]

I would like to begin by thanking the Opinio Juris bloggers for their hard work in conceptualizing and organizing their inaugural on-line symposium. I very much appreciate the opportunity to participate in it, as well as John Knox’s thoughtful reaction to my piece. This dialogue is a wonderful opportunity for junior scholars to get feedback on their work, and I am certain that my piece will improve greatly through the interchange. I also am grateful for helpful exchanges about legal pluralism over the past few days with Elena Baylis, Paul Berman, Joshua Gitelson, Rebecca Hardin, Janet Levit, and Michelle McKinley, which have contributed to my thinking in this response.

John’s comments on the piece primarily focus on two issues. First, he questions the distinction between pluralist and modified Westphalian approaches. Second, he raises concerns about whether a pluralist approach provides too much of an opening for those who seek to limit international law. I address each of these points in some detail below. At the core of my response, though is an argument that pluralist approaches have the potential to provide more effective protection of “international law” than Westphalian approaches because they allow for fuller acknowledgment of international lawmaking that does not rest on the coercive force of the nation-state. Or, as Janet Levit has aptly titled a recent piece, “International Law Happens (Whether the Executive Likes It Or Not).”

In discussing the first issue, a contextualizing of this piece is in order. I am in the process of writing a trilogy of articles on the geography of climate change litigation. The first article in the trilogy, The Geography of Climate Change Litigation: Implications for Transnational Regulatory Governance, 83 WASH. U. L.Q. 1789 (2005), describes this litigation as a modified Westphalian phenomenon and explores the implications of its geography for approaches to transnational regulatory governance. The second article, The Geography of Climate Change Litigation Part 2: Narratives of Nation-States and Thirdspace—which is currently in preliminary draft form—explores how a law and geography analysis might help to address the interrelated crises facing international law and climate change regulation. Most relevant to my response to John, that piece draws from geography to propose a taxonomy of international legal theory approaches based on how they view nation-state spaces: Westphalian, modified Westphalian, pluralist, and critical. I define each of those terms in detail in that piece, and will focus my discussion here on the terms most relevant to John’s and my interchange.

The thought piece included in this symposium, Climate Change as Legal Pluralist Dialogue? (which will be published in final form in STANFORD ENV. L.J. & STANFORD J. INT’L L. __ (forthcoming 2007)), is an effort to play with the third approach in that taxonomy, a pluralist one, in more detail than the focus of that second article allows. In particular, drawing from the scholarly literature on law and geography, judicial dialogue, and legal pluralism, I consider two main examples—California’s role in climate change litigation and the informal role of supranational petitions—to explore how a pluralist perspective on them might differ from a modified Westphalian one. In so doing, I am not necessarily assuming the pluralist mantle, but rather asking what insights that conceptual approach might bring to an understanding of the climate change litigation’s regulatory role.

John’s discussion helped me to recognize that I need to use my terms more precisely in the final version of this piece. In particular, I need to dispense with the term “traditional”—which I used to make the piece more accessible—in favor of more consistent use of “Westphalian” and “modified Westphalian,” which both have particular definitions. John and I agree—as I have discussed explicitly in other pieces and should make more explicit in my final version of this piece—that very few scholars are Westphalians. Where he and I part ways somewhat is that I do not think that almost all international legal scholars and lawyers are modified Westphalians. Rather, I think that most range from modified Wesphalian to pluralist, and that there is a significant body of important critical international legal scholarship too often ignored in “mainstream” international legal debates.

John points out accurately that, in this piece, I take a less radical pluralist approach that focuses on international lawmaking without disturbing the formal category of international law. The difficulty of such approach—as I acknowledge in the draft—is that the term “international lawmaking” is far mushier than the term “international law,” which leaves the analysis open to exactly the kinds of questions that John asks. But I choose it as the more practically viable approach to global (or more accurately, multiscalar) legal pluralism. In this version of a pluralist model, international lawmakers are those who make law relevant at an international level, whether or not that law would be included in the formal category of international law.

In my view, the core difference between modified Westphalian and pluralist approaches has to do with the extent to which they decenter the nation-state. A modified Westphalian looks inside the nation-state to consider the range of relevant actors and behaviors, but still views the nation-state as the primary international lawmaker. In contrast, a pluralist, after a similar inquiry, views the nation-state as just one international lawmaker among many. Michael Reisman—whom John would prefer “in” over Rehnquist—and other New Haven School proponents, for instance, provide a model of interpenetrating communities engaged in authoritative decisionmaking. Modified Westphalians are thus more pluralist than Westphalians, but do not take that further step of moving the nation-state out of center stage and into the cacophonous chorus line.

As I note in this piece and in my more detailed discussion of the taxonomy in The Geography of Climate Change Litigation Part 2, the distinction between the two approaches is often quite a fine one. For example, some aspects of Anne-Marie Slaughter’s theoretical work appear to be quite pluralist, but she also acknowledges the nation-state as the most important lawmaker. However, as the specific examples of subnational actors and supranational petitions illustrate, those ambiguities of categorization should not be used to mask a real difference in worldview between the two approaches. Modified Westphalians would treat those examples as relevant to the international law story primarily through the ways in which they contribute to a state-centered lawmaking process. In contrast, the pluralist narrative, which deemphasizes the importance of the formal category of international law and describes a hybrid lawmaking space, explores a broader range of ways in which climate change litigation matters.

The relevance of this distinction becomes clearer when one turns to the second issue that John raises and that Part V of the paper explores in depth. Namely, how does one’s understanding of climate change litigation evolve if one moves from a modified Westphalian to pluralist worldview and what are the implications of that choice? In the paper, I grapple with the distinction by imagining a series of dialogues between modified Westphalians and pluralists, which I’ll only discuss briefly in this short response when they are relevant to John’s comments.

The limitation of modified Westphalian approaches is their fixation with formal, binding international law created by nation-states, a difficulty exemplified in the concern that John raises at the end of his comments. Much energy is spent in the current polarized discourse debating the boundaries of that category. A more pluralist approach would not, as John suggests, lend support to those who criticize international law. Rather, it would likely claim that the narrow focus of this debate causes it to miss important parts of the story. Paul Berman’s book review critiquing The Limits of International Law, serves as an excellent example of how a pluralist approach can be used to highlight the assumptions of “the realist and ‘fortress America’ critics of international law.”

The pluralist model that I rely upon on this piece does not enter the fray over what should count as part of formal international law, but instead tells the story differently. Its concern is over the bigger picture of the regulation of global climate change and what is lost when the formal international law piece of the narrative becomes too privileged. In so doing, it provides a way out of the encampment over international law because it suggests that this formal, binding quality that John so values is a much smaller piece of what matters than any version of the Westphalian model presumes. John’s concern about pluralist analysis being used as a tool by those wishing to constrain international law further, while worth engaging in the current political climate, thus seems somewhat misplaced. Modified Westphalians’ emphasis on a different part of the story makes it unlikely that a pluralist approach could cause formal international law to be further constrained other than by the realities of hybridity.

In the specific context of climate change, a pluralist approach has the potential to help respond to arguments seeking to constrain the use of international legal protections. For instance, Eric Posner’s working paper, Climate Change and International Human Rights Litigation: A Critical Appraisal —which I have criticized in The Geography of Climate Change Litigation Part 2, and plan to critique in depth in a book review, Climate Change, Environmental Justice, and Human Rights: A Response to Professor Posner, that I am in the process of drafting—provides a normative argument against climate-change-based human rights claims under the Alien Tort Claims Act. This paper’s argument, like The Limits of International Law, is grounded in a number of explicit and implicit assumptions that an acknowledgment of multiple normative communities can help unpack.

Furthermore, the difference between modified Westphalians and pluralists is more fundamental than the Gershwinian variations in pronunciation to which John compares them because how we narrate has consequences for how we approach lawmaking. When the ultimate question is what binds formally—which is where John, like most modified Westphalians, ends up—the implications of climate change litigation that have little to do with inter-nation-state lawmaking become comparatively less important. As a result, we may miss norm-creating dimensions of the litigation that contribute minimally to formal international law. For example, I recently heard a presentation at the Stanford Law School symposium on climate change regulation for which I have prepared this piece that proposed what future treaties on climate change should include in terms of liability provisions. The analysis focused almost entirely on what would be politically viable in nation-states and issues of nation-state behavior. As I noted in my presentation there, a more pluralist approach would contextualize that treaty further and frame it as lawmaking behavior situated among many other types of relevant lawmaking. I grant John’s point that the difference is subtle—something that I also acknowledge in the paper itself—and that modified Westphalians could and sometimes do formulate contextualized treaties. But the focus on formal, nation-state lawmaking versus a hybrid system influences what gets factored into the analysis. Pluralist perspectives are helpful because they push towards a more inclusive approach.

In the final analysis, as I note in my conclusion, pluralist analysis is more difficult to translate into practical legal structures than are Westphalian approaches. Pluralism is messy and rife with internal questions. It is hard to expansively define relevance and then come up with a manageable set of relevant actors and legal behaviors. However, I think that the value of attempting pluralist analysis outweighs these difficulties and the potential dangers that John outlines. In a time of contestation over core values, pluralism provides a mechanism for approaching international legal problems more holistically and creatively than the Westphalian obsession with nation-states and formality allows. Although I am not sure that I am a pluralist, I see great value in considering the lawmaking value of what Judith Resnik as termed “multiple ports of entry,” even when their direct relevance to binding international law is limited.

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