Notes from the ESIL-ASIL Conference
It’s Day 2 of the First Ever! (people keep emphasizing this) joint ASIL-ESIL Research Forum. Jan Klabbers who seems the chief (but by no means the only) organizer has done Helsinki proud in terms of the site and the conference structure. It’s been a remarkably solid event; unlike ASIL all the speakers were required to submit abstracts AND papers as the basis of their remarks. This is generally a good thing, as it’s obvious speakers (and even the Chairs) have taken the time to think both about the paper and the panel in which they appear. This, in turn, has generated some great discussions on the science of international law (think political science not the old-school views ala Kelson of science as international law) and science in international law (i.e., what do lawyers do when science drives an international law obligation?)
My own panel on interpretation went well (at least I thought so), with panelists discussing the ability of using interpretative approaches in political science to explain international law (Basak Cali), how jurists should interpret science to produce rational legal decisions (Dirk Pulkowski), and how to use interpretation as a heurmeneutic tool of coordination to overcome the battle for control in scientific disputes such as the US-EU battle over the risks posed by hormones in food (Sungjoon Cho). All three papers are worth reading, so keep an eye out for them when they hit SSRN or publication. Cali’s paper in particular lays out an interesting response to the challenge of rational choice scholars that if you don’t agree with their rational choice theory, what’s the alternative? Cali proposes an interpreative approach conceptualizing both mixed motives for states that can conflict, and contending that the harmony AND conflict among these motives drives state action. It’s a theory still in its formative stage, but it has the potential to add an interesting alternative to the existing range of responses to rational choice ideas in international law.
The conference papers are in draft form so not publicly available. But let me quickly highlight a few others worth looking out for when they become more publicly available in paper form:
Tomer Broude presented a paper, Behavioral Economics and International Law, trying to theorize whether a “research agenda challenging assumptions of rational choice analyses of international law, not through alternative (and imprecise) paradigms of sociology and constructivism, but through a meta-methodology of applying the experimental insights of cognitive psychology and behavioral economics to international legal issues. This is a new approach to international law that has only been sporadically applied but never methodologically explored, yet has potentially significant implications in virtually every area of international law. However, in order to avoid the difficulties faced by rational choice theory, a behavioral approach to international law must be pursued with both academic rigor and intellectual humility.”
Nicole Ahner, presented a paper, Final Instance: World Trade Organization–Unilateral Trade Measures in EU Climate Change Legislation, assessing proposals for EU “trade restrictive border measures under the auspices of environmental protection, whose purpose is at least inter alia to ‘level the competitive playing field’ for the European carbon-intensive industries?” Simply put, the paper assesses new EU proposals for trade regulation in light of WTO case law (think Shrimp), and how a WTO dispute might proceed. The paper also asked if the WTO should be the “final instacne for deciding the legality of European climate change legislation measures”?
I’ll try and flag a few more papers/presentations as the conference comes to a close later today.