IL/IR Symposium: What Can IR Learn from IL?

by Jeffrey Dunoff and Mark Pollack

[Jeffrey L. Dunoff is the Laura H. Carnell Professor of Law at Temple University Beasley School of Law and Mark A. Pollack is professor of Political Science and Jean Monnet Chair ad personam at Temple University]

Many thanks to Opinio Juris – and to all of the Symposium participants – for a stimulating and informative discussion of the virtues and vices of international law and international relations (IL/IR) scholarship.

The Symposium highlights some of the ways that IL/IR research has enriched our understanding of the making, interpretation, and enforcement of international law.  Larry Helfer’s post provides a superb summary of what IL/IR scholarship teaches about the design of international legal agreements, and in particular of flexibility provisions.  In terms of interpretation, IL/IR scholarship has prompted a rediscovery of international courts by political scientists, who seek to explain patterns in international judicial behavior.  Finally, as Jana von Stein notes, IL/IR research has produced both increasingly systematic data collection on IL compliance, as well as sophisticated understandings of the diverse causal mechanisms behind law’s compliance pull on states.

However, our project seeks not only to identify “lessons learned,” but also to identify IL/IR’s weaknesses, blind-spots, and potential for further development.  The lively exchange between Richard Steinberg and Ian Hurd (see here, here, and here), as well as the thoughtful posts by Judge Joan Donoghue, Ed Swaine, Tim Meyer, and Ruti Teitel, suggest several ways that existing scholarship can be strengthened.

In this concluding post, we explore a different critique, namely that IL/IR scholarship is less interdisciplinary than its name implies, frequently consisting of a one-way application of IR as a discipline to IL as a subject.  While a handful of scholars – including those in this forum – engage in genuinely interdisciplinary research, many IL/IR writings largely ignore potential contributions from international legal scholarship, which is all too often dismissed for being normative, doctrinal, and naively formalist.  Indeed, many nominally interdisciplinary IL/IR scholars seem unaware of the theoretical and methodological pluralism that marks contemporary international legal thought.   (We’ve recently offered a primer designed to introduce IR scholars to the diversity of contemporary international legal theory for IR scholars).

Ironically, in ignoring the diversity and the insights of international legal theories and approaches, IL/IR scholarship itself falls prey to an unwitting formalism, in which international law is nearly always conceptualized and coded in terms of binding treaties, interpreted by courts, and complied with (or not) by states.  This formalistic approach fits well with off-the-shelf IR theories, and lends itself to operationalization and measurement of discrete variables like treaty texts, judicial decisions, and state behaviors.  Yet it presents at best a partial, and at worst a skewed and biased, picture of international law.  We believe that IL/IR writings would be enriched by engaging with a broad range of legal theories and methods, ranging from doctrinal approaches, to process-based theories like the New Haven School and International Legal Process, and more recent approaches like Global Administrative Law and global legal pluralism.  Doing so would suggest productive refinements to topics that are already of interest to political scientists, as well as new research questions not currently on the IL/IR radar screen.

Consider, for example, IL/IR approaches to international law-making, which are dominated by a rational design (RD) approach that links specific elements of treaty design (i.e., dispute settlement clauses) to the structure of the underlying cooperation problems states are trying to solve.  RD has systematized and advanced our knowledge of treaty design; but because RD scholars have drawn primarily from off-the-shelf IR theories, they have thus far focused on only a fraction of the design elements over which states deliberate and debate.  In our volume, for example, Barbara Koremenos and Timm Betz catalogue and explain the design of international dispute settlement systems, along dimensions such as adjudication vs. arbitration, a major advance in the literature.  Their dependent variable of dispute settlement design, however, could be further refined by attention to more fine-grained choices that states make about a range of consequential, nuts-and-bolts design elements, including remedies, compulsory or non-compulsory jurisdiction, private-party standing, rights of appeal, and the appointment of judges – all of which have been studied extensively by international law scholars.

Moreover, IL/IR writings have almost entirely ignored customary international law, which remains important, not only in traditional areas like sovereign immunity, which predate modern treaties, but also in emerging areas of law such as cyber-security and humanitarian intervention in countries like Syria, which has featured so prominently in Opinio Juris in recent weeks.  IL/IR scholars who explore CIL could learn much from the New Haven School, which decades ago analyzed the eminently political push and shove, claim and counter-claim of customary international law-making, a process understood to be crucially influenced by state power as well as by the persuasiveness for formal legal arguments.

Or consider IL/IR analyses of international legal interpretation, which to date have focused almost exclusively on the behavior and independence of international tribunals.  This court-centric approach misleadingly overlooks the numerous other sites where interpretation and application occurs, including in committees, councils, noncompliance mechanisms, and other subsidiary treaty bodies.  IL/IR studies of international courts also tend to reduce international judicial behavior to a single dimension – 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.  Joost Pauwelyn and Manfred Elsig’s post in the Symposium illustrates how IL/IR scholars can combine legal scholarship’s close attention to interpretation and doctrine with the explanatory ambitions of the social sciences.

Finally, IL/IR studies of compliance often assume implicitly that international law consists of a series of unambiguous treaty rules, and that international law’s effects are most relevantly measured in terms of state behavior that is (or is not) consistent with these rules.  But this formalistic view of international law ignores the fact that, as Tim Meyer notes, legal rules are often indeterminate; the ways in which various actors use indeterminacy; and the diverse mechanisms through which international law influences both states and non-state actors.  For this reason, we argue, contemporary IL/IR scholars could learn much from the International Legal Process research of scholars like Abram Chayes, whose classic study of the Cuban Missile Crisis brilliantly details not only how diverse actors instrumentally deploy international legal indeterminacy, but also how international legal reasoning and processes serve as a “substantive check” – even in  high-visibility contexts where fundamental state interests are at stake.  IL/IR scholars have not yet heeded Chayes’s message that international law’s effects are not fully captured by the dichotomy of compliance and non-compliance, and that international legal processes shape and constrain state action in more subtle ways.  More recently, legal scholars like Rob Howse and Ruti Teitel have persuasively argued for the need to extend our study of international legal effects “beyond compliance,” focusing less on states’ behavioral compliance with legal norms than on how legal processes shift disputes into alternative processes and decision making fora.

Interdisciplinary Perspectives on International Law and International Relations takes stock of two decades of IL/IR research. This work has substantially advanced our knowledge regarding how international law works (and doesn’t work).  But much work remains.  Going forward, IL/IR scholars should no longer work under the self-imposed handicap of ignoring IL theory.  We are confident that, by using knowledge, insights and methodological tools from both disciplines, scholars will produce a richer understanding of the causes and consequences of international legalization.

 

http://opiniojuris.org/2013/09/20/ilir-symposium-can-ir-learn-il/

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