January 2015

International Law as Behavior Symposium: An Agenda

[Harlan Cohen is an Associate Professor of Law at the University of Georgia School of Law] What is the study of “International Law as Behavior”?  At the workshop in November, Elena Baylis, Tomer Broude, Galit Sarfaty, Jean Galbraith, and Tim Meyer (whose chapters/presentations were described earlier) were joined by Kathryn Sikkink, who presented on the role of agency in constructivism, Ron Levi and Sungjoon Cho, who drew upon sociology to study the “fields” of international criminal law and international human rights practice and the social structure of the WTO, respectively, Adam Chilton, who presented on the potential of experimental methods for studying human rights, and Anne van Aaken, who explored behavioral law and economics’ implications for international legal theory.  What, if anything, binds these ten projects together?  Are there lessons to be learned about how these projects and methods can fit together into some greater whole?  These will be topics discussed in the book arising out of this project, but for now, a few thoughts on ways forward. It can be tempting to see these projects as puzzle pieces, which when assembled in the correct order, reveal a larger picture of the international order. Each brings its own insights: Rational choice sets up testable, generalizable hypotheses about how states might interact given express assumptions about state behavior. Sociology, anthropology, and behavioral law and economics can test those hypotheses against real world scenarios, explaining why specific situations diverge from those expectations, whether as a result of social structures, culture, or human psychology. Experimental methods can help identify the actual preferences of international actors. Constructivist accounts can build upon sociology, anthropology, and psychology to explain where state preferences come from and how they change. Focused primarily on different, overlapping units of analysis—individual actors, the communities in which they practice, the culture in which their embedded, the states on behalf of whom they act, and the larger structures in which those states are embedded, these approaches might seem like natural complements—snapshots taken from one angle, which when spliced together might provide a panoramic view of the international system. Together, these accounts might provide a more complex account of the different processes, preferences, beliefs, and incentives that might drive the vast array of actors who operate in international law, whether grass-root activists, transnational norm advocates, technocratic experts, politicians, bureaucratic careerists, or diplomats. Where these levers converge or diverge may help explain both the emergence of consensus over rules and continued contestation. Successful strategies for achieving particular international goals will flip all the right switches. But imagining all of these accounts as different harmonies converging in one glorious tune is too simplistic and overly optimistic;

International Law as Behavior Symposium: Playing the Negotiated Choice Architecture Game – Negative/Positive Listing in Services Trade Agreements

[Tomer Broude is Vice-Dean and Sylvan M. Cohen Chair in Law at the Faculty of Law and Department of International Relations at the Hebrew University of Jerusalem.] How do negotiators of international treaty regimes engage with the ‘choice architecture’ inherent in the treaties they design? Are they aware of their own susceptibility to cognitive biases and do they take into account the behavioral weaknesses of their counterparts and constituencies? Jean Galbraith’s excellent study on human rights treaty flexibility cast light on this question, very neatly demonstrating on the basis of quantitative research that opt-in/opt-out provisions in treaties have significantly differential effects on subsequent choices. In a paper I am writing with Dr. Shai Moses (a former negotiator and affiliated with the Université de Genève) for a forthcoming handbook on trade in services (edited by Martin Roy and Pierre Sauvé), we explore the behavioral dynamics of negotiated choice architecture in the context of international services trade liberalization, and in particular in the ongoing negotiations towards a plurilateral Trade in Services Agreement (TiSA). Here are some of our initial observations on what seems to be going on in Geneva, from a behavioral perspective.

Negative/Positive Listing in Services Liberalization: The Rational Choice Puzzle

International Law as Behavior Symposium: The Sociology of International Precedent

[Harlan Cohen is an Associate Professor of Law at the University of Georgia School of Law] The Precedent Puzzle Every year, the Jessup team at the University of Georgia comes to me for a crash course in international law, and every year, I carefully explain to them that they can’t simply argue from precedents (as they would in their other moot court competitions), even precedents from the International Court of Justice, because precedent is not a source of law in international law as it is in domestic law. Nonetheless, I tell them—they, and their opponents, and the judges, will argue from precedent, from the ICJ and beyond, just as everyone in international law does. The trick, I tell them, is to be able explain why the supposedly irrelevant really is relevant. This is emblematic. On the one hand, we are taught that as a matter of doctrine, judicial decisions construing international law are not in and of themselves law; they are not generally binding on future parties in future cases, even before the same tribunal. On the other hand, we also know that precedent is ubiquitous—from international arbitration, to international criminal law, to international human rights, precedents are argued and applied. It’s not just that courts and tribunals cite their own precedent. On the contrary, courts and tribunals regularly cite the decisions of other unrelated ones: The precedents from one regional body are argued to others; precedents from human rights courts are argued to investment tribunals; precedents from ad hoc criminal tribunals are applied to domestic civil judgments. Nor is this phenomenon limited to arguments from, to, or in the shadow of international tribunals. The invocation of tribunal decisions as precedent has become part of the fabric of international legal discourse, structuring everyday arguments over the meaning of international law rules even far outside the shadow of any court. Russian and Crimean political leaders invoke the ICJ’s Advisory Opinion on Kosovo’s declaration of independence as precedent for the legality of Crimea’s secession and absorption into Russia. Advocacy groups like Human Rights Watch invoke ICTY decisions in open letters to governments on the legality of tactics used to fight terrorist groups. Academics invoke ICJ decisions in debates over the legality of the use of force against non-state actors. And perhaps most surprisingly, the Department of Justice responds to decisions of the ICTY, European Court of Human Rights, and the U.N. Committee Against Torture in internal, confidential government memoranda. Together with other interpretations of international law by expert committees, by international organizations, or by states, these decisions vie for status as authoritative statements of what international law requires. But if this puzzling phenomenon is ubiquitous and even widely recognized, it has nonetheless, remained largely unexplained. Why, in the absence of any doctrinal requirement (in some cases, even permission), do some interpretations of international law by some courts, tribunals, or other bodies take on the force of precedent? Why do some interpretations come to be seen as authoritative, allowing some actors to wield them and forcing others to respond?

International Law as Behavior Symposium: Studying International Law as Behavior

[Elena Baylis is Associate Professor of Law at the University of Pittsburgh] In my role as commentator for the in-person symposium that preceded this online symposium, I took on the task of identifying common themes among the symposium papers. This essay focuses on a few of the ideas drawn from the papers as a whole. Treating international law as behavior engenders several kinds of complexity centered on a set of classic epistemological questions: what do we know and how do we know it? By using theoretical and methodological approaches drawn from sociology, anthropology, international relations, and other disciplines, we can observe aspects of international legal behavior that are not accessible through traditional legal analysis. The symposium participants describe international legal actions such as development of expertise, engagement with deadlines, and epistemic cooperation, by a wide variety of actors, including individuals, institutions, organizations, states and divisions thereof, and networks and communities. Even apart from the value of the analysis developed to explain and categorize this behavior, there is some satisfaction simply in exposing these many actors and modes of action to our view. However, doing so requires grappling with difficult methodological, theoretical, and conceptual questions.