September 2013

IL/IR Symposium: Comment on Pauwelyn and Elsig

[Joan Donoghue is a Judge on the International Court of Justice.]  Interdisciplinary Perspectives is an important contribution to the international law/international relations (IL/IR) literature that deserves the attention of scholars and practitioners alike.  I am grateful to the editors for inviting me to comment on the interesting chapter by Joost Pauwelyn and Manfred Elsig. My first exposure to the IL/IR literature was in the early 1990s, when my particular interest was the role that international agreements play in addressing environmental concerns.  This literature has helped international lawyers to look beyond treaties to regimes, and has drawn our attention to the distinction between compliance and effectiveness. Serving as a judge on the International Court of Justice (ICJ), I have had the opportunity again to study the IL/IR literature, as I have pondered the role that an ICJ judgment plays in the resolution of a dispute.  There have been studies of compliance with the judgments of the ICJ and other tribunals. In addition, I have been pleased to see scholarly exploration of the more nuanced question of the effectiveness of judgments of tribunals, which calls for reflection of the goals of the tribunal (effective as to what?) and for an examination of the linkages between tribunal outputs and the roles of other actors, such as other UN organs, regional organizations and non-party states.  Many of the authors represented in the present volume are important contributors to the study of international tribunals. Interdisciplinary Perspectives demonstrates that the IL/IR field is diverse and maturing.  At the same time, the editors do not overstate its potency.  Like Anne-Marie Slaughter in her retrospective at the close of the volume, the editors are less “starry-eyed” (p. 624) than were some earlier adherents. Much as I welcome the study of international tribunals by IL/IR scholars, I also appreciate that there are obstacles to applying social science disciplines to these institutions.   Several challenges come to mind: 

IL/IR Symposium: The Politics of Treaty Interpretation

[Joost Pauwelyn is Professor of International Law at the Graduate Institute of International and Development Studies in Geneva and Manfred Elsig is Associate Professor of International Relations and Deputy Managing Director of the World Trade Institute of the University of Bern.] In principle, the Vienna Convention rules on treaty interpretation apply equally to all treaties and all international tribunals.  In practice, however, we...

IL/IR Symposium: Comment on Helfer

[Ed Swaine is Professor of Law at George Washington University Law School] Larry Helfer is the perfect author for a chapter on the topic of treaty flexibility mechanisms: he writes from both theoretical and empirical perspectives, has a wide range of substantive expertise (including in human rights and trade, two fields that are central to this topic), and has a penetrating and remarkably clear style of analysis.  He deliberately provokes a number of questions in his chapter and post; because I’m conscious that blog readers themselves have numerous “exit” options, like closing this tab, I will try to be brief and touch on only a few. This topic includes a wide variety of behaviors – reservations, denunciations, suspension, differentiated treatment, amendment, withdrawal, and so forth – and one set of issues concerns nomenclature and taxonomy.  Larry has a state-of-the-art table in his chapter laying out and sorting the flexibility options.  Personally, I have never been happy with describing certain formal flexibility mechanisms (those involving temporary relief from treaty obligations) as “escape” clauses, supposedly as distinct from “exit” clauses that entail permanent cessation of status as a treaty party.  Prisoners do not “escape” from Alcatraz with a view to returning; a word like “avoidance” better captures the idea in this context.  More generally, the categorization of flexibility mechanisms has certain routine difficulties – the basic problem of trying simultaneously to sort on when a state seeks flexibility and what its legal consequences are; conflicting tendencies both to include and exclude certain noncompliance acts as informal flexibility mechanisms; and an inherently unsatisfying distinction between so-called unilateral mechanisms (not always exploited in a completely autonomous fashion) and collective mechanisms (frequently, one suspects, prone to exploitation or capture by particular states).  Typology is rarely gripping, and I don’t want to mislead anyone into thinking that Larry’s chapter is focused on these questions or has unique difficulties with them.  However, they matter because we are concerned with the relationship among these mechanisms, principally in order to describe the choices states confront and make; he highlights this in his post as well.  In addition, beyond worrying whether these descriptions have formal integrity, we should also try to explore whether these are in fact the way state representatives think about the alternatives.  It might be the case, for example, that they focus predominately on collective rather than unilateral forms of flexibility, or informal rather than formal avenues, either of which might marginalize other kinds of inquiries. A second set of issues concerns the proper perspective on these questions. 

IL/IR Symposium: Flexibility in International Agreements

[Larry Helfer is the Harry R. Chadwick, Sr. Professor of Law Professor of Law at Duke University School of Law] I am delighted to participate in this Opinio Juris book symposium on Jeff Dunoff and Mark Pollack’s excellent edited volume. My chapter on “Flexibility in International Agreements” was improved by their many helpful comments and suggestions. This brief post summarizes a few of the chapter’s major themes.  Citations to all references can be found in the online and print versions of the chapter. Government officials, international lawyers, and diplomats have long been interested in shaping the form and content of treaties to manage the risks of international cooperation. These actors have responded to these risks with an diverse array of flexibility mechanisms, including unilateral reservation and declaration clauses; entry-into-force requirements; limitations on territorial application; duration provisions; amendment and revision procedures; and rules governing suspension, withdrawal, and termination. In addition to these formal mechanisms, a range of informal practices can enhance the flexibility of treaties.  Such practices include ad hoc supplementary accords, understandings, traditions, conventions, gentleman’s agreements, de facto modification of treaty obligations through conduct, auto-interpretation of ambiguous terms, and nonparticipation in treaty activities. A principal challenge facing treaty negotiators is to select an appropriately constrained suite of flexibility mechanisms that facilitate agreement among states ex ante while deterring opportunistic uses of those mechanisms ex post after the treaty enters into force. Flexibility tools that are too easy to invoke will encourage self-serving behavior and lead to a breakdown in cooperation. Tools that are too onerous will discourage such behavior, but may prevent the parties from reaching agreement in the first instance, or, if agreement is reached, may lead to widespread violations if the costs of compliance increase unexpectedly. Over the last decade, international law and international relations scholars have devoted growing attention to treaty flexibility tools.

IL/IR Book Discussion: Beyond the “Isms War”?

[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] One of the most difficult choices in our book, and one of the most contentious discussions at two book workshops, was about how to approach the question of “theory.”  Our approach was to identify four research traditions in IR that had been invoked productively by IL/IR scholars – namely, realism, institutionalism, liberalism, and constructivism – and ask four leading scholars to review and identify how each tradition had been adapted and developed to explore the making, interpretation and implementation of international law. Doing so, however, posed two problems.  First, it privileged IR theory over international legal theories.  We agreed with this critique, but we felt that the centrality of IR theories in the IL/IR literature in fact reflected our view of the literature more broadly, which is that what was labeled IL/IR scholarship was not primarily interdisciplinary in nature, but represented the application of IR theory and methods to international law as a subject.  We see this imbalance between IR and legal theory as a lamentable feature of contemporary IL/IR scholarship – a point to which we will return in a subsequent post – but one that accurately reflects the current state of the field. Second, a number of our participants were concerned that, in selecting these four theories and asking our authors for canonical statements of each, we were reifying distinct, non-overlapping theories, and thus aggravating a decades-long “isms war.”  Far better, some contributors suggested, to do away with the isms altogether, in favor of a “non-paradigmatic approach.”  Despite such concerns, our own view was that realism, institutionalism, liberalism and constructivism, as distinct theoretical research programs, have been the intellectual nurseries within which scholars have developed and refined theories and testable hypotheses about factors such as power and distribution (realism), information and institutions (institutionalism), domestic and transnational society (liberalism) and norms and ideas (constructivism).  In this symposium, for example, Richard Steinberg makes a strong case for the distinctive contributions of realist theories focusing on states, state interest, and state power.

IL/IR Book Discussion: Steinberg Reply to Hurd

[Richard H. Steinberg is Professor of Law at the University of California. Los Angeles; Visiting Professor of International, Comparative & Area Studies at Stanford University; and Director of the Sanela Diana Jenkins Human Rights Project.] I am grateful for Ian Hurd’s thoughtful comment on my book chapter partly because it supports my claim that that everyone borrows from the realist tradition.  Moreover, Hurd’s comment inadvertently recapitulates a narrow structural realist view of international law (recalling the associated dysfunctional debate of the 1980s) that I intended my chapter to supersede, offering me the opportunity here to underscore the approach of my chapter, which sees the utility of employing a longer-lived realist tradition for understanding international law . . . First, Hurd expresses apparent disappointment that most of my claims are completely acceptable to him and constitute orthodoxy among international relations scholars.  My claims are “so encompassing that there is little to disagree with.”  For example, Hurd agrees with me that analysts of international politics should take into account states, state power, and state interests, and that states strive to use their power to create a legal order that favors their interests.  Apparently, my clear restatement of concepts rooted in the realist tradition, going back two and a half millennia, is not disagreeable—except to the extent that Hurd thinks my restatement is not realism.  “The problem here,” Hurd writes, “is that few scholars of any stripe would deny these premises or empirical patterns” and so Hurd is “doubtful” that “this is ‘realism.’”  But the fact that these premises and patterns are broadly accepted does not negate the fact that they are rooted in the realist tradition—the mode and level of analysis common to people like Thucydides, Machiavelli, and Morgenthau.  These premises and patterns are certainly not the preoccupation of the liberal tradition, with its focus on individuals and nonstate actors as drivers of state interests and action, nor of constructivism, with its focus on the social roots of epistemologies, norms, and interests. Hurd’s declaration that these realist premises and patterns are broadly accepted is gratifying to those who have identified themselves with the realist tradition in their understanding of international law—but who in the last thirty years have been intellectually flogged for doing so by those who have attacked a straw-man version of realism described in my chapter.  For Hurd, the shortcoming with my chapter seems to be that a correct distillation of the realist tradition offers little to disagree with.  Sorry to disappoint.  As stated in the last line of my chapter:  Perhaps everybody is still a realist. So, what does Hurd disagree with? 

IL/IR Book Discussion: Comment on Richard Steinberg, “Wanted Dead or Alive: Realism in International Law”

[Ian Hurd is an Associate Professor in Political Science at Northwestern University] Steinberg opens his chapter with the line that “realism is the theory that international lawyers love to hate.” But he goes on to present a version of realism that is so encompassing that there is little to disagree with. Realism, he says is about “the state, state power, and state interests” (147). He emphasizes that state power plays a role in making international law and in shaping states’ responses to international law. Among other things: “powerful states (or their rulers) conclude treaties to advance state interests…. Hence, powerful states could sometimes impose international law on weaker states, and sometimes states could agree among themselves on issues of common interest” (147). He also notes that powerful states use law to shape the capacities of others, which implies that they gain some advantage from this (157). International law is therefore a product of state power, and a contributor to it. IR/IL scholarship must focus on the complex dynamics among power, interests, and law. As a description of some key elements of international politics this has much to recommend it. What is left of international politics if one leaves out states, state power, or state interests? There are many non-state forces in international relations but many are interesting for how they connect with or contradict state power. Who would deny that powerful states often evade their legal obligations, or that they strive to use their power to create a legal order that favors their interests? State agency is not absolute and it is shaped by international legal forms among other things, but one cannot deny that it exists. But therein lies the problem -- it takes on so much that it is hard to see what a non-realist approach to IR/IL could be. Steinberg sets out to make essentially two points: first, that scholars of international law should pay more attention to power, especially state power, and its relation to international law; and second, that to do is called ‘realism.’