Author Archive for
Kal Raustiala

A Response to Milanovic

by Kal Raustiala

In Extraterritorial Application of Human Rights Treaties: Law, Principles, Policy, Marko Milanovic has written an illuminating and comprehensive analysis of the increasingly contested question of the geographic scope of human rights treaties. Of course, this is a dynamic area of law—as Marko notes, many of the cases he examines are of quite recent vintage—so undoubtedly  he will be at work on second addition in a few years. But for now, this book provides a closer reading and a more detailed, one might even say exhaustive, survey of the relevant issues than anything else I have seen. He focuses especially on the jurisprudence of the European Court of Human Rights. But as he shows, there is a wider pattern to these cases that transcends any particular regional context or, to use a term of art in this domain, any espace juridique.

The jurisdictional scope of human rights treaties is at one level a narrow doctrinal issue. Yet at another it is a challenge to the human rights framework. As Marko notes, the human rights revolution is grounded in the ideal of universality. The idea that a state can do the same bad act in two different locations, and in only one will it violate its human rights treaty obligations, is in tension with that commitment to universality. And of course such a system creates perverse incentives to engage in bad acts offshore, as the use of Guantanamo Bay amply illustrates.

Still, treaties have jurisdictional clauses for a reason. When negotiating treaties, states seek to control or at least cabin the treaty’s ultimate impact on their behavior. Human rights treaties may well be strongly expressive in nature, but they are also regulatory, and states—at least those who believe these treaties must be complied with—endeavor to calibrate those commitments accordingly. Jurisdictional scope is central to that effort. So whatever the desire to push back against limiting principles, doing so can both violate the intent and expectation of the drafters and, given the dynamic nature of lawmaking, have unwanted impacts on future treaty negotiations.

Since space is short let me turn to a few big issues raised in the book. One is Marko’s interpretive prescription. He explores in depth the two main approaches to extraterritorial application—broadly, territorial and personal– and finds them both wanting. As he shows, a territorial approach pushes courts inexorably toward ever smaller definitions of relevant territory in order to ensure, at least in cases that present uncomfortable or shocking fact patterns, that justice is done. (Rather than a nation or region or city, perhaps the relevant territory over which a state exerts control is a facility or building. And so on.) An approach based on persons, by contrast, has no real limiting principle in practice: in Marko’s words, ultimately it cannot “be limited on the basis of any non-arbitrary criterion.”

His prescription is a third way: to distinguish between the duty of a state party to refrain from infringing the rights of individuals and the duty to secure or ensure the human rights of those individuals.  In other words, a distinction between negative and positive obligations. This approach seems reasonable and workable in practice, but of course the devil will be in details.

Marko has a second area of prescription, which turns on how courts generally adjudicate these questions. He wants courts to more clearly and forthrightly separate out jurisdiction and merits. This is a noble goal, perhaps. But it strikes me as hard to imagine much improvement in practice. Certainly US jurisprudence on the extraterritorial application of constitutional rights does not really do this—at least with regard to non-citizens, the framework recently handed down in Boumediene (and elaborated since in a few lower court decisions) makes functional considerations an essential part of the discussion over geographic application.  And this inevitably brings merits-like considerations into play.

The third big point I want to raise here is something that bookends the study: why have these issues of extraterritorial application arisen so frequently now, and so rarely in the past. Marko claims that this is not because of globalization or other changes in the international system. States, he says, have always “killed, detained, or otherwise mistreated people outside their territory.” Instead, he argues that it is the internalization of human rights norms and of the ideal of universality that have forced these issues to the surface.

There is something to this. But is it really true that the rash of cases on extraterritoriality is not connected to globalization or other macro-political changes? At the most basic level, 50 years ago it would have been much harder to run the CIA black site prisons in Eastern Europe, or to employ offsore bases to hold so many detainees brought from so many parts of the world. The ability to project power at a distance, and to move people to distant places, is plainly not the same as it was then.

The other obvious difference, encapsulated in these examples, is the nature of the contemporary asymmetric conflict and especially the highly contested contours of the contemporary battlefield. A conflict that seems to bleed over to many discrete locations that are neither subject to pervasive armed conflict nor are belligerently occupied makes the extraterritorial application questions far harder, but also far more pertinent.

In short, I think Marko is right to argue that there has been a sea change in thinking about human rights, and that has led to a greater number of cases involving extraterritorial rights claims. But there are material factors at play as well. It would be interesting to consider to what degree these two claims are linked; that is, to what degree both the rise of human rights consciousness and the ability or propensity to violate human rights offshore reflect larger changes in society of the sort we often label globalization or interdependence.

Copenhagen and Compliance

by Kal Raustiala

 

 

There are few international lawyers in the world who know more about climate change than Dan Bodansky. More generally, Dan is also an expert on international environmental law (IEL), and in this book he has distilled years of study and observation into a very readable yet sophisticated treatment of the subject. A successful overview and analysis of IEL is very hard to pull off well, and I recommend the book to anyone looking to understand this complex area of international law.

 

Dan rightly focuses substantial attention in the book on the issues of reporting, review, compliance, and effectiveness. (For simplicity I’ll label this package “review”).  Peter Haas has already pointed out one area in which IEL exhibits unusual features–the vast array of discrete treaties–and review is another. Partly as a function of this multiplicity of agreements, IEL has developed a very wide range of institutions that focus on review. While one can bemoan the fact that we don’t have a single World Environment Organization to rationalize the process of cooperation, there are advantages to having many discrete regimes. By dint of having so many different regimes experimenting with so many different processes, we can learn quite a bit about what works and what doesn’t in the area of review.

 

One of the most significant areas of debate in this regard has been over how to treat non-compliance. To some degree compliance is not actually that important. Since treaties can and often are tuned to produce compliance, such as by setting the legal standard to match pre-existing behavior, the real issue ought to be effectiveness: is the treaty successful at altering behavior from what it would otherwise be? But as a practical matter compliance is an important political and legal issue. How to treat non-compliance by a party is an ex post problem. There are, however, also ex ante effects to the focus on compliance.

 

Most strikingly, a focus on compliance can exacerbate the “tuning” problem I just noted. States may want to commit to a given regime but will often fear the unexpected costs that may result. This is particularly true in IEL where there are usually major but unpredictable economic implications to regulation. A cautious, prudential government will seek to match the international commitment as closely as possible to its current policy or policy trajectory.

 

This is one reason that–to recall our previous book club discussion at OJ–non-legally-binding agreements can have surprising utility. Lawyers often dismiss them, and so too do many other analysts. But one great advantage they have is that take away the problem of violating international law, and therefore, counterintuitively perhaps, can permit governments to be more ambitious in their cooperative efforts. To be effective, however, this strategy requires serious review, else the result will often be empty promises.

 

In this regard, consider the recent accord struck at Copenhagen over climate change. In many respects this accord is simply what was once called in the climate world “pledge and review”: each government pledges to do X or Y, and then that pledge is reviewed later. There is no legal commitment, but there is a political commitment. (In fact, the words “legally-binding” were expressly removed in the negotiations)

 

Will this result in serious efforts that will create real change in behavior? Or will states just maintain the status quo? Only time will tell, but for the first to occur not only will bold (ish) commitments be required, which we have yet to see. Those commitments will also have to be tied to some system of intensive but flexible review. Since unfortunately I don’t anticipate that this combination will occur–at least, with enough strength to really matter–I advise interested readers to look at another smart and prescient piece by Dan: “May We Engineer the Climate?”, Climatic Change, 1996.

 

When Cooperation Fails

by Kal Raustiala

At Greg Shaffer’s invitation I’m joining the discussion to make a couple of small points about some of the concepts used in Greg and Mark’s very interesting and carefully researched book. The first concerns the GMO case as an example of a “regime complex.” When David Victor and I first proposed the concept of a regime complex, we used the example of property rights in genetic resources. (Raustiala and Victor, “The Regime Complex for Plant Genetic Resources,” International Organization 2004). But we suggested that many regime complexes existed, and that once scholars began to look at the world through this lens the limits of focusing on discrete institutions and agreements (ie “regimes”) would become clearer. 

Greg and Mark nicely illustrate why it is essential for international lawyers and political scientists alike to think in terms of sets of overlapping but distinct regimes, and to explore the dynamics that emerge from the interactions among these component parts.  I hope others follow their lead, because as the density of international law and institutions increases regime complexes will proliferate. For international lawyers, this is a slightly different spin than the more typical focus on “fragmentation.” Fragmentation is an important phenomenon, but I believe the more critical feature to focus on, as Greg and Mark do, is institutional overlap.

My second point concerns the soft law-hard law discussion now ongoing on the blog. While it is a small and perhaps even semantic point, I am not a believer in the utility of the concept of soft law. As I have detailed in other writings, I think that calling some sets of norms and agreements “soft” law makes little conceptual sense. (Here I part ways with two scholars I greatly respect, Duncan Snidal and Ken Abbott, whose framework Greg and Mark adopt).

Law is a formal category, though as self-proclaimed legal realists Greg and Mark know that many non-legal factors influence legal decisionmakers. The discussion now ongoing on the blog illustrates the problems with using the terminology of soft law, with its debate over whether some hard law has softened and vice versa. This language ultimately obscures more than it clarifies. So I endorse Tomer Broude’s suggestion that the terminology of hard and soft may not be that useful. At bottom, what is important is the way some actors in the GMO story create “strategic inconsistency” by creating and invoking a wide array of differing norms, some of which clash. That discussion is central to the book, and is impressively detailed. But employing the language of soft law is not necessary to this discussion, and I think it would have been even stronger without it.

Thanks to all the Book Club participants

by Kal Raustiala

I want to give my sincere thanks to all the participants in the symposium on Does the Constitution Follow the Flag? Many terrific points, questions, and critiques were raised (made?) this week, and I certainly found it a fascinating discussion. My book is an attempt to synthesize and reframe a wide range of issues related to territoriality, and in so doing I necessarily skimmed over, or ignored outright, numerous subsidiary topics of importance. Luckily many of these arose in our discussion this week. Sovereignty, as I note in the book, is the subject of yards of shelf space in any good law library. The literature on territoriality is tiny in comparison, but as this week showed there is so much more to be studied and debated.

Thanks again to the OJ team for inviting me to do this, and to the guest bloggers–David Golove, Tim Zick, and Bill Dodge–for their time and insight.

Ought the Constitution Follow the Flag?

by Kal Raustiala

Reading over the last few posts, it seems very clear that there is an array of extremely interesting angles to the question of whether the Constitution ought to follow the flag in all instances. Tim, Peter, David, and Bill all have raised great questions about the normative dimensions of extraterritoriality and intraterritoriality. In my book I generally eschewed this dimension, though in the conclusion I discuss it a tiny bit. (I have also written about the GTMO context in “The Geography of Justice,” Fordham Law Review 2005). But I can’t say I have given this topic nearly enough thought. Nonetheless, this is a good opportunity to ponder some of these questions.

As to the connection between 14th Amendment and the Insular Cases, Christina Burnett has written what I think is a pretty definitive treatment in the current issue of the Columbia Law Review. She sees many parallels, and also takes issue along the way with the conventional understanding of the Insular Cases. Since Christina is probably the world’s leading expert on the Insular Cases, I think her views are worth careful attention.

The second broad issue raised in the posts concerns whether it is perhaps wrong to view the denial of incorporation—that is, the denial of the full Bill of Rights—as a wholly bad thing. Perhaps solicitude for local custom and differing norms requires that we sometimes not extend the Bill of Rights to all American territory. There are cases concerning US possessions in the Pacific that to some degree consider this issue. In King v. Andrus, for example, the district court carefully considered indigenous cultural practices in Samoa in deciding whether it would be impractical to apply the right to a jury trial. (It was not impractical, the court decided).

Putting aside the details of King, at first blush I see some merit to the multiculturalist view. But, I think much turns on how the particular territory was acquired. If a territory is conquered, or acquired from another conqueror (e.g., occupied Berlin, the Philippines) then it seems more appropriate to weigh local norms and practices. The people in question did not consent to be governed. But if a territory willingly joins the union (Texas), less so. It is arguably part of the bargain of membership (this is basically the EU practice, for example). This logic, applied for example to Indian country, would suggest substantial deference to local custom or preference, and indeed that is what we see in, say, the 1st Amendment context. That said, deference to local custom can quickly morph into paternalistic and self-serving denial of justice. It is not obvious how we police this.

Status of Forces Agreements raise different issues. Off the top of my head I don’t find SOFAs to be problematic in the abstract, though in extreme cases (where foreign troops are completely outside any local control whatsoever, as was the case in Iraq) they look like naked exercises of power. At the same time, though, I don’t think acceptance of SOFAs supports a more general norm, as Peter alludes to, of a separate legal system for foreigner-on-foreigner crime. I think if one Nigerian assaults another on the streets of New York it is entirely appropriate to arrest and try him/her via the normal rules of American law.

Why then is the same scenario, with two American soldiers, different? Only because it is a necessary part of the security bargain in places like Japan or Germany, and arguably in the interests of both nations, as well as neighbor nations. This is maybe pure foreign affairs exceptionalism, but I think the reality is absent SOFAs we would see a much smaller American military presence abroad, and that in turn would, in many parts of the world, have seriously detrimental effects on regional security. I don’t see that countervailing factor in ordinary crimes by aliens against aliens. (Also, foreign stationed troops live far more separate lives than do ordinary migrants, so the spillover effects of such a rule are smaller too).

As these sketchy comments suggest, there is a lot more thinking to do here.

Is Bagram the New Guantanamo? And why did the US adopt effects-based extraterritorial jurisdiction when our partners did not?

by Kal Raustiala

 

Roger raises an important issue with regard to the landmark 2008 decision in Boumediene v. Bush . Is that case in effect limited to its facts because of the unique qualities of Guantanamo? Or does the logic extend elsewhere? The obvious focus going forward is Bagram Air Base in Afghanistan. Bagram holds many more detainees than does GTMO and, given the continuing war against al Qaeda and the planned closure of GTMO, is likely to have new inmates arriving in the future.

The issue of Boumediene’s applicability to Bagram recently arose (as my book was going to print) in the case of Maqaleh v. Gates. (Those wanting a longer discussion of the case can see my short essay in the ASIL Insights series, at http://www.asil.org/insights090618.cfm). The bottom line is that at least one federal judge has applied the Boumediene framework to Bagram and found that the constitutional right to habeas does apply to at least some, non-Afghani, detainees held there. Animating the decision was the concern raised by the majority in Boumediene that the executive not be given the ability (and incentive) to evade constitutional strictures simply by choosing the location of detention. This, of course, was Hugo Black’s prescient concern in his dissent in Johnson v. Eisentrager, the 1950 case that was relied upon so heavily by the Bush Administration in the years after 9/11.

Let me also briefly note Bill Dodge’s argument about the rise of effects-based extraterritoriality. The presence of foreign assets in the US is definitely a key factor in the success of this approach, and that presence is in turn a function of the huge American market. So I think Bill is right to highlight this, and probably I should have underscored it even more. However, foreign assets have been present in the US for a long time, so (as Bill is aware) this is not really a primary motivator behind the creation of effects jurisdiction; it is instead a permissive cause. 

Does this factor explain why other nations, like the UK, trailed the US in adopting this approach to extraterritoriality? The answer would require more empirical work, but it was certainly true that there was substantial foreign investment in places like Britain and France. To be sure, the US was a major player in the global economy in the postwar era. Yet within a few years time the devastated economies of Europe were producing again and they recovered their footing fairly quickly. So I have some doubts about whether this factor was really significant.

 

Preliminary thoughts on the posts

by Kal Raustiala

I’m glad (though by no means surprised) to see so many thoughtful comments about Does the Constitution Follow the Flag? In this post I will respond briefly to a few of the points made in the hopes of clarifying the issues at stake. Let me take them in reverse order.

David Golove makes a very interesting argument about how contempories understood territorial questions in the 18th and 19th centuries. He claims that territory was not actually the key feature, and instead that there were two forms of jurisdiction at play, international and municipal. When the former was operative, the Constitution necessarily had no applicability. At one level I do not challenge David’s position. Indeed, my book often supports exactly this view. In discussing the Supreme Court’s decision regarding the Civil War era occupation of New Orleans, for example, I write that:

The Supreme Court contended that…Southern states were in fact conquered territory and therefore subject to the laws of war and the international law of occupation, not American law. International law displaced constitutional law.

Yet I do not think this is the primary, or in David’s words, “fundamental” approach that courts of the time took. Indeed, to me, reading the caselaw illustrates that there is far more discussion of territoriality than of municipal vs. international jurisdiction. Take the U.S. District Court for China. In U.S. v. Furbush, an early and influential decision, the court stated clearly that Furbush’s claim that the Sixth Amendment applied to his trial in China was mistaken because of a “fundamental fallacy.” What was this fallacy? His assumption that “the Federal Constitution has been extended to China.” If the core issues was one of differing conceptions of jurisdiction, the language of extending—which echoes that of incorporation in the Insular Cases (as well as the entire “does the Constitution follow the flag?” frame of the era), and directly references the Supreme Court’s earlier and very important decision in In Re Ross, would be very odd. The opinion as a whole resonates with a territorial vision—and there are many other opinions like it.

Now, at one level, this may be a matter of nomenclature. Perhaps David is right that these two fundamental jurisdictional conceptions were at play in this era, and were the key to understanding the jurisprudence, but for some reason they were shrouded and manifested in language like “the Constitution can have no operation in another country.” This language is somewhat ambiguous, but perhaps could be read to have a hidden addendum (“because the Federal Government in this case is exercising international, not municipal, jurisdiction.”) But that is not what the courts actually said. Instead, they tended much more to speak in terms of territoriality. In short, I think David identifies something important, but I am not persuaded that territoriality was not the master concept at play.

That said, I completely agree with David that the displacing role of international law was important, and moreover sometimes that displacing role was critical, as the occupation of the postbellum South revealed. I also completely agree that a proper reading of history shows that international law was a crucial part of early American jurisprudence. And I agree that both of these features point toward a central role for international law in filling gaps when American law was deemed to not apply extraterritorially, as in Guantanamo or Bagram.

In his post Tim Zick stresses the racial, and often avowedly racist, element in many seemingly territorial doctrines. He is certainly right to highlight the “dark side of territoriality,” and there is no question that territorial principles were often used to deny rights to those who were weak and different. I don’t think I portray these episodes as benign, but nonetheless I take his comment as a friendly reminder to all of us that this is a central part of American history. The Democratic Party platform I cited in my opening post, for example, stated emphatically that “the Filipinos cannot be citizens without endangering our civilization.” The Filipinos were routinely derided by McKinley and others as ignorant, simple, and superstitious: simply incapable of self-government.

In fact, the same was said a century earlier about Louisiana. The revered Thomas Jefferson thought that the local Creoles were such a childlike people “that our principles of popular government are utterly beyond their comprehension.” (This did not stop him from buying Louisian, obviously). These attitudes were endemic to the time, and seem shocking to our ears, but of course were central to the imperial era. Imperialists in the US and Europe gave many reasons for empire, but a recurrent (if self-serving) theme was the felt need to civilize those deemed savage. Along the way, the savage would almost always be ruled as subjects, not citizens.

Peter Spiro asks if my book has much to say to the future, now that international law has filled so much jurisprudential space. “In the pre-human rights world, the Constitution was the floor, beyond which there was the abyss of sovereign action answerable only to God.  Today, the Constitution can (usually) add a cushion of rights not found in international law, along with a mature system of enforcement, but it’s no longer the only shield against government overreaching. “ I’d be very interested in a side debate between David and Peter on this issue of the role of international law in the 19th century. David sees it as central, and legal black hole thinking as a perversion of the past. Peter seems to see such thinking as instead a throwback to more nakedly lawless era, one we have increasingly escaped.

Finally, Bill Dodge makes two core points in his introductory post. His first, that there are really 3 phenomena at play in the book, is largely right in my view. In the introduction, I distinguish between “policing,” “protecting,” and “projecting” as three ways American can operate extraterritoriality. I probably should have emphasized this trope more throughout the book. That said, at heart I am a lumper rather than a splitter, and I see the same features at play in each, at least at the most abstract level. The problem with my view, as Bill insightfully points out, is that it is necessarily true in a world of diverse states and legal systems. But since that is our world, I thought it important to highlight something that may seem obvious in retrospect but, by my lights, had not really been emphasized enough in prior scholarship: that extraterritoriality was not a violation of sovereignty as much as a necessary feature of sovereignty—something inherent in the Westphalian system.

Bill’s second point builds on his own expertise on statutory extraterritoriality, and I certainly defer to him on the particulars here. He thinks I overstate the motivating role of leveling the playing field for American firms, and slight both the role of consumers and the ways that extraterritorial application sometimes harmed American firms, as in the Foreign Corrupt Practices Act. I agree that leveling was not the only factor. I also agree that the FCPA is one of the things I should have, but did not, discuss. Perhaps if I had I would have emphasized things differently.

That said, I still think my basic claim that leveling was central and even dominant is probably right. Nonetheless, I recognize that there is more work to be done in this area on the motivations behind not only the actions of federal courts but also of federal agencies. My former classmate Tonya Putnam, now teaching political science at Columbia, has a major project on postwar extraterritorial cases and is trying to unlock the keys to when courts choose to apply US law extraterritoriality and when they do not. Others, such as Bill himself, have done the same. My focus in Does the Constitution Follow the Flag? was more on the origins of the practice–why did the US embrace and dramatically extend extraterritorial application when it did?—and its connections to earlier but forgotten practices, such as consular jurisdiction.

Again, these are all excellent comments and I very much appreciate the food for thought. I certainly glossed over many things in my effort to compress so much into one not-very-long book. That said, I’m not planning a second volume, but it seems quite clear to me that there is much more to be debated and dissected here. Were I a law review comment writer or aspiring professor, I’d see opportunity.

(I see now that Bill has another posting, but I will take that up next time).

Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law

by Kal Raustiala

A century ago the presidential race between Republican William McKinley and Democrat William Jennings Bryan was consumed by the question of whether “the Constitution follows the flag.” The United States had just acquired several overseas colonies in the wake of the Spanish-American War. The Democratic Party platform of 1900 declared that “We hold that the Constitution follows the flag, and denounce the doctrine that [the federal government] can exercise lawful authority beyond it or in violation of it.” In opposition were those who believed that normal legal rights and rules did not apply fully—or at all—to the new American possessions. For these individuals, sovereign borders did not line up with constitutional borders.

At stake in this debate was the ability of the U.S. to participate in an age of great empires. As proponents of empire knew, if the Constitution indeed followed the flag any American empire was going to remain very small. At stake as well was the self-conception of the nation as a constitutional republic. Was the U.S. like other great powers of the day, all of whom had embraced a vigorous imperialism? Or did the Constitution provide powerful limits that could not be circumvented simply by (re)drawing lines on maps and declaring some areas beyond the reach of the Bill of Rights?

Does the Constitution Follow the Flag? is a book about the way that geography shapes legal rules and understandings—and how fundamental changes in American power and in world politics have challenged and sometimes altered the traditionally territorial system of American law. Do some U.S. laws stop at the water’s edge? If not, do they operate differently beyond American territory? As the election of 1900 shows, these debates are not new. But nor are they a musty relic of the imperial past. Today they are central to ongoing battles over the rights of detainees held in Guantanamo and Bagram, as the landmark decision in Boumediene v. Bush made clear. They are also central to the ability of the federal government to regulate foreign cartels, protect investors, and combat air and water pollution. Each of these issues, in short, raises questions of territoriality and extraterritoriality.

Does the Constitution Follow the Flag? has several aims. . . .

Raustiala Reply

by Kal Raustiala

Andrew’s reply makes a good point. I share his skepticism about my proffered explanation for the choice of hard law over soft law. The problem is that we have an empirical puzzle that demands explanation, and we lack a good one. If there is a better explanation than the one I put forward, I have not yet seen it.

The puzzle is that under Andrew’s theory we ought to see lots of soft law agreements. To some degree we do, and there is a selection bias problem to boot: soft law agreements are not always listed in the usual treaty databases, and thus it is hard to know how many there are. However, it seems hard to argue that there are more multilateral soft law agreements than hard law agreements. And it is clearly the case that major multilateral negotiations more frequently result in a hard law agreement, and when they do not they are usually viewed as failures.

The landmines issue is a good example. Spurred on by NGOs, landmines regulation advocates convinced many governments to negotiate a major agreement. That agreement resulted not in a soft law accord but a treaty. We observe this pattern again and again. Some big UN meetings do yield soft law accords (e.g., the Rio Declaration of 1992) but again, advocates in the area generally deride these as weak and vacuous. So I think the puzzle remains: why so few soft law accords? As I noted in my first post, we see many soft law accords in technocratic areas that are not politically salient, such as banking. That is consistent at least with the theory that domestic/civil society preferences might be playing some role in the choice between the two. But it is certainly plausible that other factors are at play, or that I am entirely wrong about this.

Let me briefly comment on something else Andrew said. He wrote that international law is perhaps just as oxymoronic as soft law, in that the former lacks coercive enforcement of the sort we see in the domestic context. Yet it is interesting to note that in constitutional law we don’t see very much coercive enforcement either. When President Truman lost in Youngstown, what forced him to comply with the ruling? It certainly wasn’t that the military threatened to lock Truman up if he failed to follow the Supreme Court.

We could multiply the instances easily; anytime a federal court orders a government agency to do X or not do Y, why does the executive branch follow the court and obey the law? Again, it cannot be coercive power that explains it, since the executive wields the coercive power. The point here is that the difference between international law and domestic law is not always very great, and in fact may be illusory in some instances—instances that are at the core of our domestic legal system. It is worth bearing this in mind as we think about how international law works.

Raustiala on How International Law Works

by Kal Raustiala

The conversation thus far has been interesting, but I want to bring up some new issues that we have not yet discussed. I have long been interested in how international agreements work, in part because since the end of the Second World War (at least) international agreements have been the most significant source of international law, and in part because this is one of the more natural areas of overlap between international legal theory and international relations theory. For a long time both fields studied the same topic, but used different nomenclature: “regimes,” “treaties,” “institutions,” and so forth. Regime was the label preferred in IR circles, but as the late Abe Chayes often said, at the core of almost every regime is a treaty. Indeed, he claimed that political scientists were basically just afraid to use “the L word.” That fear is generally gone now, and one of the results is that we have an increasing supply of papers on the topic of how agreements actually work and why they look the way they do.

Andrew’s book delves into these topics on a number of fronts. I want to focus briefly an issue he raises in his opening post: the distinction between hard law and soft law. At one level is this is a narrow question about why we see different types of international agreements and what difference these types make.

At another level, however, this topic is emblematic of a larger issue, or claim, at the heart of Andrew’s approach. For the most part his analysis of international law proceeds as if “law” does not matter very much. What does matter is commitment, and he explores the different ways states make commitments and, most importantly, the ways they make those commitments credible to other actors. Law per se is not all that important to this discussion. Consequently, whether an agreement is soft law or hard law is, in his view, not very significant. As he says in his opening post, “there is no stark difference between the two.”

I find the term soft law largely oxymoronic. But to make things easier, I will use it here. Let’s first consider whether there is really is little difference between hard and soft law in terms of effects. The standard lawyers view is that a hard law agreement is more meaningful (more “binding”) than a soft law agreement. But since international law lacks the enforcement mechanisms of domestic law, what binding means in this context is hard to say.

For Andrew the answer is more commitment. He suggests that hard law is really no different than writing down a treaty on special red paper that everyone agrees means that a commitment is really, really serious. But at the same time he points out that the stringency of commitment can be varied by manipulating a whole host of treaty design features and by staking reputation in other, extra-treaty ways. As a result, whether an agreement is hard or soft doesn’t really matter all that much; it is the overall level of commitment that matters. It is definitely worth thinking about whether this claim is correct—that “law” in the international system is really just a way of saying, “I really mean it this time.”

To some degree I think he is right. In other work I have made similar claims to his about the design of treaties (see e.g. Form and Substance in International Agreements, AJIL 2005). But one problem with Andrew’s approach is that there is substantial evidence that governments pay a lot of attention to whether an agreement is legally binding or not, and they are very careful about labeling, or at least signaling, which is which. And since they possess other levers—other treaty design features—that enable them to calibrate the level of commitment, it isn’t clear why the hard law/soft law distinction matters so much to states, at least in Andrew’s worldview.

In short, the empirical behavior of governments suggests that there is some difference between the two that matters more than his theory suggests it should. The question is, from a rational choice perspective, what is the difference? First, a legally-binding commitment often leads to significant domestic effects, such as the need to get legislative approval. Governments have an incentive to choose hard or soft law in part because of these domestic legal effects. These effects are largely left out of his analysis, but they are clearly important.

Second, it may be that domestic actors, civil society, and other “constituencies for cooperation” think that international law is quite a bit like domestic law, and so naturally want to see “real” treaties rather than soft law substitutes. Governments rationally supply these treaties. There is some evidence for this claim; soft law agreements seem most common in technocratic areas in which domestic political groups don’t really have a strong presence. But this claim requires some further assumptions about these constituencies being unsophisticated about international law, and these claims maybe aren’t all that warranted.

There is more to be said about this, of course, but it worth thinking more about what role law per se actually plays in international cooperation and especially in international agreements. This question is a big one.

The Structure of International Tribunals

by Kal Raustiala