Author Archive for
Paul Stephan

On Is International Law International? ‒ Where Next?

by Paul Stephan

[Paul Stephan is the John C. Jeffries, Jr., Distinguished Professor of Law and John V. Ray Research Professor of Law at the University of Virginia.]

First a disclosure. I have cheered on this project since Anthea Roberts began working on it. We, along with Pierre Verdier and Mila Versteeg, have collaborated on a book of essays as well as an American Journal of International Law symposium that explores the concept of comparative international law across many dimensions. I read earlier manuscripts with interest and enthusiasm. I am, in short, as on board with the project as anyone can be.

What this book does is expose the forces that bring about systematically different cultures of international law in different parts of the world. The point is not simply that some people think differently about the substance and scope of international law. Rather, the book establishes that these differences are systematic and align with traditional territorial divisions. Even accounting for normal discord and dispute among specialists, international law varies from place to place.

This fundamental point, which I regard Roberts as having proven convincingly, points in several directions at once. It invites constructivists to consider how differences in the production of knowledge among cultures leads to differences in the construction of international law. Alternatively, it provides those of us with a rational-choice, international-relations bent to consider how these different cultures relate to differences in state (and regional) interests, and how these interests then shape international law.

This observation opens the door to what the book does not do. Roberts shows us how the production of knowledge and the culture of professional expertise varies within the international law world. This is a tremendous contribution, and makes the book essential reading for anyone wanting to know what international law does in the contemporary world. One might think that these cultural differences produce differences in the content of the international law espoused. What Roberts does not do, however, is explore the instrumental implications of her central findings. She does not seek to connect specific variations in claims about international law to specific facets of the culture out which those claims arise.

There are many good reasons why Roberts does not do this. Thick description, which in the most general sense is what this book does so laudably, strips away preconceptions and mystification. It is, when done well as here, prior to any instrumental analysis. Doing it successfully is a great challenge by itself. If nothing else, the book undermines hegemonic pretensions, which is to say (mostly) the largely implicit assumption of U.S. and European international lawyers that they have successfully achieved cosmopolitan takeoff and thus speak for the entire world when they pronounce on questions of general international law. Adding on a second layer of analysis accounting for the effect of specific cultures on their products is a significantly different project. One cannot (and I do not) fault Roberts for not writing a different book.

Those of us who benefit from her project, however, might well feel the need to figure out what comes next. Now that we know how different cultures of international law are formed, how should we respond? I can think of several possibilities.

One reaction is to treat the book as stripping off the mask of universalism on the part of those who work in the empire’s center (to borrow the language of dependencia theory, for readers old enough to remember that trope) and to draw the obvious conclusions. The enlightened international lawyer should fight for the periphery, demanding the inclusion of voices from the traditionally marginalized communities as well as the suppression (through critique) of the dominant mindset. Demystification thus removes a barrier to international justice.

Wielding Is International Law International? as part of a social justice warrior’s armament is a plausible use of the book, but hardly the only possibility. Stripping away the pretense of universality from the center’s proclamations is useful, but this move alone need not destroy the case for the version of international law that the center espouses. What deep description does not do ‒ indeed, it cannot do ‒ is create a normative framework for assessing particular regimes. It removes the underbrush to allow the observer to better comprehend the social phenomena in play, but it does not supply the framework for evaluation. The presence of mystification alongside the center’s claims may hint at a certain insufficiency ‒ If the claims about international law are already attractive, why pile on with a false picture of universality? ‒ but does not itself prove the case. We still need an argument that explains how particular instances of inclusion promotes justice. Such arguments can be made, but they should not be assumed.

One might instead use the book as a means of teeing up particular empirical projects. To take an area of great interest to me, what explains the similarities and differences between Chinese and Russia claims about international law? Roberts contrasts the insularity of Russian educational and publication practices with the remarkably cosmopolitan approach of Chinese international lawyers, as indicated by both where they go to school and where (and in which language) they publish. Do these differences make a difference in what Russian and Chinese specialists say about international law? The recently published joint principles on the promotion of international law suggest substantial overlap in the Sino-Russo approach to big-picture issues in general international law. Some of these principles, such as the fundamental importance of state sovereignty, are all the more interesting because they depart from European and U.S. postures. Yet in some subfields, such as trade and investment, China’s specialists seem to have embraced differences in scope and substance from the version of international law typically promoted by Russians. Is it culture, interest, or some mix of the two that explains this combination of commonality and difference?

Others might explore other implications. Does the common European framework (admittedly under great stress at the moment) mute what otherwise might be obvious differences in claims that British and French lawyers make about international law, given the significant cultural differences that Roberts documents? Or is there manifest distance between their claims, notwithstanding their (for now) shared European commitments? Or do they mostly agree, the cultural chasm notwithstanding? To take another example, what distinguishes claims about international humanitarian law, both as to content and the rules of recognition, between the P5 states and rich pacifists such as Germany and Switzerland? Culture, or distinct military tasks and capacities?

Is International Law International? doesn’t answer these questions. Rather, what it does is make the questions possible. This is a great achievement. The community of specialists should respond first with admiration, second with humility, and third with a renewed commitment to exploring the link between disaggregated cultures and the international law that results.

AJIL Symposium: Congressional Oversight of International Organizations

by Paul Stephan

[Paul B. Stephan is the John C. Jeffries, Jr., Distinguished Professor of Law and David H. Ibbeken ’71 Research Professor at the University of Virginia School of Law.]

Many scholars believe that a shift of authority to international organizations benefits the Executive Branch more than Congress. The Executive interacts directly with these organizations and bears undiluted accountability for the consequences of their actions. Congress deals with them sporadically and has weak institutional interests. Members are elected by local, rather than national, constituencies and therefore have an incentive to focus on local rather than national effects of foreign affairs, the actions of international organizations included. Therefore, some have suggested (myself included), Executive Branch actors might prefer international delegations as a means of hobbling legislative oversight. To oversimplify greatly, people like me have argued that internationalists who wish to deepen and broaden international cooperation through institutions might find themselves playing into the hands of the Imperial Presidency.

Kristina Daugirdas’s excellent article pushes back against the widely held belief that international institutions augment Executive power at the expense of Congress. Rather than theorize, she does research. Her careful study of the history and pattern of legislative oversight of the World Bank demonstrates the Congress has the capacity effectively (and significantly) to influence U.S. policy toward the Bank, and even to alter the Bank’s behavior. Creation of the Bank did not lead to a surrender of the legislature’s prerogatives, but rather gave members (especially in the House) a new pressure point for extracting concessions from the Executive.

The key factor that enables Congress to ride herd on the Bank, Daugirdas observes, is the Bank’s need for periodic new funding. This was not always true, as the Bank was designed to generate a positive return on its founding capital. The creation of a more aggressively redistributionist institution in the form of the International Development Association in 1960 changed this dynamic, because the IDA depends on frequent infusions of new capital. Because Congress must approve any U.S. contributions, it can hold the funding hostage to its policy preferences. Moreover, it has demonstrated an ability to monitor the Bank and thus to respond to slippage between its instructions and the Bank’s performance. In early years, when Congress instructed the U.S. Executive Director not to vote in favor of certain loans, the U.S. representative behaved as required but did nothing to alter the votes of other Directors. After Congress responded through more aggressive pressure on the funding lever, the Bank shifted course.

Although the need for regular funding is the salient variable, also important is the role of departmentalism within the Executive Branch. The White House, with its own agenda as well as acting as the focal point for all the Executive’s components to express their interests, may have a particular policy, but the Treasury has the responsibility for managing the United States’s relationship with the Bank and deals regularly with Congress. When Congress has been unhappy, Daugirdas shows, it focuses its displeasure on Treasury, which in turn works hard to steer the Bank’s behavior in the direction Congress wants, whatever the White House might prefer.

This article does several wonderful things. (more…)

Book Symposium The Electronic Silk Road: Comment by Paul Stephan

by Paul Stephan

[Paul B. Stephan is the John C. Jeffries, Jr., Distinguished Professor of Law and David H. Ibbeken ’71 Research Professor at the University of Virginia School of Law.]

I applaud Anupam Chander for picking a great subject for his book. New communications technologies have transformed the way we deliver services by radically lowering the cost of dematerialized, long-distance transactions. The resulting explosive growth of cross-border sales of services is one of the most significant aspects of the modern global economy. There are, of course, a host of books about the Web, some silly cheerleading and some exceptionally good (my favorite is Who Controls the Internet? by my sometimes colleagues Jack Goldsmith and Tim Wu). What Chander seeks to do is bring international law, and especially international economic law, into the mix. He explores how a body of rules developed three decades ago in a pre-Web world (the General Agreement on Trade in Services started in the Uruguay Round, born in 1986) can be brought to bear in the new, radically changed environment.

Much of the book describes the new face of international services. These accounts are apt and vivid. As a legal academic, however, I want more. In general I expect a careful study of a complex set of social relations either to propose a positive theory that links legal developments to social conditions with more or less rigor, or a normative vision of the world that will inspire us to correct unseen problems and cash out unrealized opportunities. I realize these categories are messy. The development of a positive analysis rests on certain normative choices, beginning with the decision to concentrate on one set of phenomena rather than another. A normative vision is incomplete without at least a rudimentary account of how we might get from here to there. But they provide a start.

I take Chander’s project to be at its heart more normative than positive. He reports on the fascinating growth of the information sector in the global economy, but he does not have a more general story about what explains this growth or how one might predict the next transformation. Rather, he wants to manage the transformation, to promote human flourishing, to expand the range of choices people can freely make, to respect local diversity, and to fight tyranny. (more…)

Medellin v. Texas: “Modest and Fairly Careful”

by Paul Stephan

A first read through the Medellín opinions leads to tentative observations, subject to revision:

• Chief Justice Roberts’ opinion for the Court is modest and fairly careful. He does not articulate a presumption against self-enforcement, or offer a general interpretive template. The analysis of the Optional Protocol and the UN Charter is specific to those two instruments. As my prior briefs and published work indicate, I find this part of the opinion completely persuasive. I take issue with the glib assumption that a commitment to comply with an international tribunal’s decision implies an automatic assignment to the judiciary of the authority to ensure that the commitment is honored.

• Although the opinion is limited in the sense that it does not offer a general rule for inferring self-executing from treaties, its dicta states strong views (it might be too strong to say it disposes of) concerning several controversies that the academic community has taken seriously. (a) The Court understands self-execution to refer to all forms of domestic enforcement, not just to the existence of a private right of action. Its definition of self-execution in footnote 2 may clarify our discussing going forward, even if some may quarrel with the definition used. (b) Reservations, declarations and understandings that limit or foreclose self-execution of a treaty that might otherwise have domestic effect seem acceptable to the Court. The Sosa Court also hinted as much. (c) And the idea of domestic enforcement of the awards of international tribunals does not seem to cause any great concerns, at least in the abstract. This will disappoint some who have suggested that domestication of such awards might present problems under Article III or other constitutional provisions.

• As a teacher of comparative law, I was delighted to see the Court’s reliance of the evidence of other country’s enforcement of ICJ decisions. I missed seeing a discussion of the recent decision of the German Constitutional Court regarding the Vienna Convention, although it may be too recent, too complex, and too tangential to make any of the briefs. The basic point that domestic implementation of international obligations has a comparative component and that an appreciation of foreign practice enriches our understanding of our own.

• As I was serving in the Executive Branch at the time of the drafting of the U.S. amicus brief and the oral argument, I am disappointed by the last part of the Court’s opinion. I would have thought that there was more to the US’s argument that the Optional Protocol, the UN Charter, and 22 U.S.C. § 287 can be read as assigning to the President the discretion to implement ICJ decisions through changes in domestic law. This argument, to be sure, is neither clear nor ineluctable. Still, I came away feeling that the Chief Justice was a bit like the person who, having a hammer, sees everything as a nail. That is to say, the opinion works so hard to clarify and establish what it means to say that a treaty is not self-executing that it rushes past a plausible and even useful refinement, namely that the treaty makers in advance might specify a nonlegislative mechanism for deriving valid domestic law from an otherwise non-self-executing treaty. To accept this argument, one would have to see Dames & Moore , Belmont and Pink not simply as cases recognizing a limited Presidential power that inheres in Article II, but also an expression of the expectations of the legislative branches when authorizing the President to enter into dispute resolution with foreign states. One might still argue that the treaty makers or Congress have to do more than simply sign on to dispute resolution to give the Executive the authority to choose to implement an international award or not. But here the Court’s opinion struck me as less careful or persuasive than what went before.

• If I had had any doubts about the persuasiveness of the majority’s discussion of the non-self-executing issue, Justice Breyer’s dissent would have put them to rest. The Chief Justice was remarkably restrained in his deflection of the dissent’s very problematic claims and proposals.

• This will not end all Vienna Convention litigation. We still have to decide what, if anything, Section 1983 adds: The Circuits are split. So the gift to which Julian refers will keep on giving for at least a little longer.