Author Archive for
Tomer Broude

Behavioral International Law: What Is It Good For?

by Tomer Broude

[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.]

Having set out general considerations and a research methodology framework for “Behavioral International Law” in previous posts, some readers might be wondering how this all cashes out for international law as a discipline?

In their path-breaking 1999 YJIL article on economic analysis of international law, Jeffrey Dunoff and Joel Trachtman noted that “almost every international law research subject could be illuminated, to some degree, by these research methods” [referring to economic analysis]. With similar caveats, it is tempting to say something similar and related about behavioral analysis and international law. Behavioral international law is not a ‘theory of everything’. Neither is it a normative framework of analysis, as such. But properly constructed behavioral research selectively employing the methodologies I describe here can significantly increase our knowledge in all areas of international law, with respect to many problems and puzzles.

In my article, I developed three examples that cover the entire spectrum of levels of analysis as well as research methodologies. In all of them, a mere theoretical application is sufficient to stimulate discussion by posing alternative hypotheses and explanations, but if one is concerned with empirical accuracy, field studies and experimental work is necessary. Moreover, the examples – essentially three mini-articles – cover diverse areas of international law (treaty law, WTO dispute settlement and international humanitarian law). I will briefly summarize two examples.  (more…)

Behavioral International Law: A Methodological Framework

by Tomer Broude

[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.]

In my previous post, I tried to briefly introduce the merits of “Behavioral International Law”. Experimental research has shown that in many cases human behavior diverges from theoretical assumptions about rationality. Prospect theory, loss aversion, endowment effects, anchoring, hindsight bias, availability bias, conformity effects, framing effects – the list of experimentally proven, systematic diversions from perfect rationality in human behavior is long. The confines of a blog post preclude detailed discussion of any of these biases and heuristics; the literature in cognitive psychology is vast. The important point, pursued by scholars over the last decade or so, is that this knowledge of actual, rather than hypothesized or assumed, human behavior, can have significant implications for legal regulation. Why should this not be the case with respect to public international law?

A number of objections may arise, and I will mention two of them briefly here. The first would be that cognitive psychology and behavioral economics relate primarily to the conduct of individuals as (obviously) unitary actors, while the main subjects of international law are collective entities, primarily states. This presents a type of external validity problem: can the knowledge we have on human behavior, carry over to other actors? (more…)

Behavioral International Law: An Introduction

by Tomer Broude

[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.]

I’d like first to thank the Opinio Juris team, and particularly Prof. Chris Borgen, for inviting me to present my article manuscript, “Behavioral International Law”, in this online forum. Today I will devote my post to general observations on this project. In my second post I will discuss the range of available research methodologies in this area. A third post will discuss some concrete examples of behavioral research in international law.

Behavioral science has in recent years been applied successfully to many legal issues. A field that just a decade ago was entirely new now merits its own research handbooks (one forthcoming with OUP in 2014, edited by my Hebrew University colleagues Doron Teichman and Eyal Zamir). Behavioral research is now embedded in national and regulatory policy-making that clearly interacts with international affairs (see Cass Sunstein’s article on “Nudges.gov” here; the UK’s Behavioural Insights Team; and this conference in December on EU law and behavioral science). No less importantly, the groundbreaking work of cognitive psychologists such as Daniel Kahneman and the late Amos Tversky has been greatly popularized in a series of popular science books (see here, here, and here), making it more accessible to lawyers and policy-makers (for better or for worse).

Simplified, the central concept underlying research in this field is the recognition that human cognitive capabilities are not perfect or infinite; our rationality is ‘bounded’. The human brain makes shortcuts in judgment and decision-making that diverge from expected utility theory. Limiting aspects of bounded rationality and the shortcuts taken to overcome them – generally known as biases and heuristics – inevitably cause human decisions that would be regarded as erroneous if compared with theoretically/perfectly rational outcomes. As I explain in the article, this should at least give pause to standard rational choice approaches to law in general and international law in particular, whose assumptions about the rationality of states and other actors are often distant from behavioral realities.

Having said this, it is important to understand that behavioral economics does not aspire to replace one ideal-type decision maker (a perfectly rational one) with another (rationally imperfect) one. (more…)

Firm Whites and Runny Yolks in WTO Law

by Tomer Broude

[Tomer Broude is a Senior Lecturer, Faculty of Law and Department of International Relations at the Hebrew University of Jerusalem; the following post continues our conversation on Shaffer and Pollack’s <em>When Cooperation Fails</em>]

Mark Pollack and Greg Shaffer well deserve the praise that the previous commentators have given them for their study of the transatlantic law and politics of GMOs, “When Cooperation Fails”. Empirically, the book is a model of qualitative research, in some parts following the lines of Greg’s superb <a href=”http://www.amazon.co.uk/Defending-Interests-Public-Private-Partnerships-Litigation/dp/0815778317″>Defending Interests</a>. The theoretical dimensions of the book masterfully bridge between different IR and IL discourses, especially the legalistic problem of regime fragmentation and the political question of regulatory cooperation. Most importantly, the authors are not wedded to a particular theoretical framework; they use the full toolbox, not just a hammer.

For non-specialists, one of the most interesting issues dealt with in the book (in chapters 4 and 5) is the interaction between ‘hard’ and ‘soft’ law. In theory, Greg and Mark eschew the binary connotations of these terms, arguing instead that hard and soft law form a continuum. Nevertheless, in practice they do tend to treat WTO law as remarkably hard, in contrast to the ‘soft’ law OECD and Codex Alimentarius Commission’s (CAC) normative outputs, and this colors their analysis. In this respect, I prefer their theoretical statements: WTO law is not as hard as it appears; in many areas, it is a bit like a medium-boiled egg (GM or otherwise), with a firm white but runny yolk. Let me focus on this point here.

In dynamic terms, Mark and Greg convincingly show that the soft law of the Codex Alimentarius Commission has been hardened through direct incorporation of standards into the WTO’s SPS agreement and through WTO jurisprudence. I think that this is a relatively uncontroversial point. What I found much less convincing is the author’s symmetrical contention that the WTO’s ‘hard’ law, especially its dispute settlement system, has somehow been ‘softened’ by the GMO dispute. There are a few problems in this argument.

First, was/is relevant WTO law ‘hard’ to begin with? The SPS is undoubtedly a ‘hard’ law instrument, but it has significant islands of ambiguity, constructive and otherwise. The GMO panel may have leveraged the imprecision of the SPS, but it did not invent it, the parties did.

Second, the authors relate to the GMO panel’s emphasis on procedural and formal questions, with the implication that by avoiding making rulings on the substance, the panel softened WTO law relating to GMOs – seemingly a classical case of issue avoidance through procedure. But while I would agree that the panel’s formal/procedural approach is a flight from politics, I am not sure that it is a flight from law; in other words, it is less than clear that if the panel had overcome the temptation to focus on procedural questions, it would have found solid and precise (or ‘hard’) substantive law to apply.

Third, even if the GMO dispute shows a ‘softer’ side of WTO law, this specific ‘softness’ does not seem to have had any special impacts on the regime as a whole. In this context, it is particularly interesting that the US and EU chose not to appeal the panel report, relegating it to that category of WTO jurisprudence that has much lesser effect on the development of WTO law. In other words, the international legal expression of the GMO dispute has, at least, so far, ended with a (1300 page long) whimper, rather than with a bang. In any case, I would at least like to think that the GMO panel is far from a representative example of WTO jurisprudence, in more ways than one.

Fourth, it is important to note that even if the GMO panel report reflects any ‘softening’ of WTO law, it is not the result of an interaction with soft law, but an endogenous weakness of WTO law itself, in a particular context.

Overall, the analysis left me with the feeling that the distinction and terminology of ‘hard’ and ‘soft’ law, although interesting in theory, might not be as useful as we sometimes like to think.

Private vs. Public Action in International Tribunals

by Tomer Broude

Virtual Roundtable on International Tribunals — Kickoff

by Tomer Broude