Towards a Pluralism of International Law(s)?

by Harlan Cohen

It’s widely recognized that our discussions as international lawyers extend beyond the specific subject matter of international law, at least as traditionally defined. (When I introduce the students in Georgia’s international law colloquium to the types of scholarship they’ll encounter, I describe international law as just one of four or five different subjects international lawyers write about.) And there have been any number of attempts over the years to reframe the legal phenomena we talk about. Nonetheless, reading the past couple of symposia on this blog, I’ve been struck by the continued need to break free of the international law paradigm and develop a more pluralistic understanding of regulation across borders.

There are a number of different ways we might want to expand our traditional understanding of international law. One might be to have a more plural conceptions of sources, recognizing that sources beyond treaty, custom, and general principles, seems to play some role, as for example, I suggested here and here regarding an international common law, and as Dan Bodansky has suggested regarding general discursive principles. Alternatively, one might suggest, as I do here, that we increasingly have regime specific “international laws” with different conceptions of law, lawmakers, sources, and legitimacy.

A third possibility would be that we need to think in terms of plural conceptions of law or plural legal systems. This is the suggestion raised in a couple of the symposium discussions. Ming-Sung Kuo, in “Taming Governance with Legality? Critical Reflections upon Global Administrative Law as Small-c Global Constitutionalism,” raises the question whether Global Administrative Law (GAL) represents the global constitutionalization of public law governance. But where are the “public law” norms in question coming from? Given the disparate nature of the regimes in question, it is hard to imagine that the source is international law. Similar hints of a different concept of law outside of traditional international law emerge from the joint EJILTalk!-ASIL discussion of Marko Milanovic’s book. Vaughan Lowe, in his comments over at EJILTalk!, referenced an article by Lea Brilmayer, in which she argued that human rights treaties are not the state-to-state contracts, but instead state pledges to follow certain accepted norms. The point of Brilmayer’s piece is that many human rights agreements are tough to square with an international law paradigm in which states bargain for reciprocal benefit that they then enforce against one another.

Given challenges such as these, do we need to rethink international law’s monopoly on global regulation? A common reaction to these phenomena has been to shoehorn them into the prevailing international law paradigm, either by trying to draw some chain between these rules and state consent or by expanding international law doctrine to incorporate different actors and processes. Brilmayer, for example, seems to frame her pledges as merely a different form of international law. But another way to think about these pledges is as a different system of law entirely, one that runs not between states, but between states (or other public authorities) and the individuals they govern. Rather than a form of international law, many human rights rules may instead form part of a proposed global public or constitutional law – rules asserted, codified, and eventually invoked by individuals against states authority. (This is not meant to suggest that such law is authoritative or legitimate – a separate question – but merely to suggest that this is the form of the rules being invoked.) Some GAL rules may fit into such a global public law system as well.

(Recognizing that there are multiple legal systems in play is complicated by the fact that rules from different systems may be used to reinforce one another. Human rights are often found in treaties. This might suggest to some that human rights are a form of state-to-state international law. A better description though might be that human rights are mostly a form of global public law that are incorporated into international law agreements in an effort give them force in international law as well, adding state responsibility to the enforcement mix. In this sense, human rights treaties would be analogous to domestic law statutes that incorporate treaties, grafting rules from one legal system into another in an effort to exploit additional enforcement possibilities.)

Viewing global regulation as plural legal space, in which multiple legal systems interact, would actually hearken back to earlier conceptions of international law that identified multiple ultimate rule sources. Taking Vattel as an example (only because his work is well-known to many readers of this blog), we would find in his conceptualization rules emerging directly from natural law operating primarily on the conscience of rulers (the necessary law of nations), interstate rules derived from right reason and supported by natural law (the voluntary law of nations), and conventional or customary rules derived solely from states-to-state agreement, explicit or implicit. (Other scholars would have different, but equally diverse lists.) But even these rules were not alone. They were joined in the transnational regulatory space by privately created Lex Mercatoria and canon law.

In a similar, but updated, vein, we might try to identify different legal systems among today’s cross-boundary regulation. Along with international law (law between states), we might identify a type of global public law (law invoked by people against official authority), as well as a modernized form of jus gentium – standards that aren’t so much imposed as proposed, best practices around which many states and actors converge. There may be other forms as well.

And recognizing that international law may be just one type of cross-border or supra-national regulation might clarify a range of questions. The puzzle of why states would bargain with each other for human rights treaties or enforce their rules recedes into the background. Questions about the relative authority and effectiveness of such agreements can instead focus on the individuals who promote, draft, and seek to apply them. (At least some) soft law standards need no longer be seen as deficient international law. Instead that might be seen as part of a new jus gentium in which convergence rather than compliance is the goal. Most of all, it takes the wobbly doctrinal lid off of long bubbling questions about how these rules should interface. How global public law and international law, with their divergent sources of authority and differing values, should relate to one another would now take central stage.

This will be my last guest post for now. Thank you again to the entire Opinio Juris team for allowing me to share their space for a bit. And I look forward to seeing or meeting many of you in person whether at the JILSA conference at the University of Georgia or the ASIL Annual Meeting in DC.

http://opiniojuris.org/2011/12/14/towards-a-pluralism-of-international-laws/

5 Responses

  1. Response…
    Like blind persons describing the elephant — describe it any way that one can.
    Also, think of plural ways of participation by various participants in the international legal process, formally and informally.  See 51 Va. J. Int’l L. 977 (2011) with respect to the reality of participatory roles — available at http://ssrn.com/abstract=1701992

  2. Harlan, thanks so much for these terrific posts, and we’re all looking forward to the ASIL meetings that you’re so ably organizing!

  3. Thanks so much, Ken.

  4. I kind of like the idea that stuff that law professors think up can become, through some mysterious process, law, binding on national courts.  Is there any chance we can get national courts all over the world to accept welfare maximization/Pareto optimality as a norm for deciding cases?

  5. Nothing new. George Scelle’s approach to international law in the 30′s already elaborated on what he considered to be this sort of international public governance. Of course, if you can’t read french you might think you are the new Columbus.

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