Special Content

International Law as Behavior Symposium: The Sociology of International Precedent

by Harlan Cohen

[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?

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http://opiniojuris.org/2015/01/20/international-law-behavior-symposium-sociology-international-precedent/
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International Law as Behavior Symposium: Studying International Law as Behavior

by Elena Baylis

[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.

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http://opiniojuris.org/2015/01/20/international-law-behavior-symposium-studying-international-law-behavior/
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International Law as Behaviour Symposium: Epistemic Cooperation

by Tim Meyer

[Tim Meyer is an Associate Professor of Law at the University of Georgia School of Law.]

For the last several decades, the central problem in much institutionalist scholarship has been how to design what I refer to as credible commitment regimes. Such regimes establish, or create fora in which states can later establish, substantive rules of conduct to coordinate state behavior across an increasingly wide range of issues. On the assumption that rational, self-interested states will cheat on these conduct rules if it is in their interest to do so, credible commitment regimes also create enforcement mechanisms to alter state incentives. Monitoring, verification, and dispute resolution mechanisms publicize violations, authorize retaliation, and in some instances award monetary damages. For example, the WTO agreements establish rules on the kinds of limits states may place on international trade. The WTO also creates the Dispute Settlement Body, which serves as a vehicle to further clarify the content of those rules, publicize violations, and reduce the cost of retaliation by defining when it is legally permissible.

Below the radar, however, a class of international agreements have emerged that seek to coordinate state behavior through the production and regulation of information, rather than the creation of credible commitments. Following a robust literature on epistemic communities, I refer to these international regimes as epistemic institutions or epistemic agreements, and the phenomenon as epistemic cooperation. In its purest form, epistemic cooperation does not legally require states to take action on the regulated issue. Instead, it merely requires them to produce and share information with each other. The aim is to encourage states to coordinate their activities based on this information, rather than based on a legal rule made credible through international institutions.

Examples of epistemic institutions that work in this way abound. (more…)

http://opiniojuris.org/2015/01/20/international-law-behaviour-epistemic-cooperation/
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International Law as Behavior Symposium: TIME’S UP – Deadlines as Behavior in International Law

by Jean Galbraith

[Jean Galbraith is an Assistant Professor at the University of Pennsylvania Law School]

One mechanism through which international law regulates the behavior of states and other actors is deadlines.   Although little studied, deadlines appear throughout international law, especially in treaty regimes. Drawing on a future book chapter, in this post I describe some of the roles played by deadlines in international law. I also consider what insights research on the use of deadlines in domestic contexts might have for good and bad ways to use deadlines in international law.

Uses of Deadlines in International Law

Deadlines occur throughout international legal practice. We find them in the negotiation of treaties; in relation to the signature and ratification of treaties; in the provisions of treaties; in exchanges among nations and other actors regarding international legal obligations; and in the functioning of international organizations and tribunals.

Deadlines can have quite different international legal effects. Some deadlines are purely political, such as many deadlines in negotiations. Other deadlines set limits on access to legal opportunities, like the date a treaty closes for signature. Still other deadlines mark the legal boundary between compliance and non-compliance with obligations under international law, such as substantive or reporting deadlines written into treaties.

For examples of these different kinds of deadlines, consider the Chemical Weapons Convention. Negotiating deadlines were used during its creation. Its entry-into-force date served as the date that the Convention closed for signature, triggering several last-minute signatures. This date also served as a symbolic deadline that galvanized the advice-and-consent process in the U.S. Senate. The content of the Convention itself is also laden with deadlines. To take one prominent example, the Convention requires parties to complete destruction of their chemical weapons within ten years of the Convention’s entry into force – with the possibility of an additional extension of up to five years. The United States and Russia have overshot this deadline and are therefore in violation of their obligations. Finally, deadlines feature in the work of the international organization created by the Chemical Weapons Convention (the OPCW), as with its recent use of deadlines in relation to Syria.

As this example suggests, deadlines can prove hugely important to international law. Yet they have received little attention for legal scholars. Given how integral deadlines can be to the functioning of treaty regimes, it is important to think about they can be best deployed.

Deadlines and Behavior: Some Insights from Domestic Research

Although deadlines have received little study in international law, scholars have studied deadlines in lots of other contexts. As examples, consider the following findings:  (more…)

http://opiniojuris.org/2015/01/19/international-law-behavior-symposium-times-deadlines-behavior-international-law/
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International Law as Behavior Symposium: Toward an Anthropology of International Law

by Galit A. Sarfaty

[Galit A. Sarfaty is the Canada Research Chair in Global Economic Governance and Assistant Professor at the Faculty of Law, University of British Columbia]

With the growing importance of global legal institutions, new forms of global law, and transnational social movements around legal issues, anthropologists are studying the multiplicity of sites where international law operates. Scholars have examined the practices of international courts and tribunals and their conceptions of justice in relation to those of local communities. They have studied the global impact of law-oriented nongovernmental organizations on postcolonial consciousness. They have also analyzed the production of international treaties by transnational elites and their localization and translation on the ground. Given the critical need to uncover how international law is produced and operates in practice, legal scholars can gain insights from anthropological literature and adopt ethnographic tools in their own analysis. As I will outline below, anthropology offers unique insights in understanding international law behavior.

What is an Anthropological Approach to International Law

Anthropological theory and methods enables the study of how international law operates in practice, from how it is produced on a global scale to its localization on the micro-level. Through ethnographic research, anthropologists analyze individual actions, systems of meaning, power dynamics, and the political and economic contexts that shape the operation of international law. They recognize disjunctures between how laws are written and how they are implemented on the ground, as well as further variations in how they affect different communities. In the context of Harold Koh’s transnational legal process theory of norm compliance, an anthropological approach sheds light on the norm emergence and internalization phases by which international norms penetrate domestic legal systems on the local level.

Ethnographic research involves case-oriented study, including long-term fieldwork and in-depth interviews. In the context of studying international law, fieldwork is frequently multi-sited to allow researchers to analyze such phenomena as the transnational circulation of global norms and local settings where multiple legal orders intersect—or what scholars call “global legal pluralism.” By tracking the flow of laws, institutions, people, and ideas across locales and jurisdictions, multi-sited “deterritorialized” ethnography is a useful tool in the study of international law.

Anthropological research aims at answering a question rather than testing a hypothesis. Unlike other methods, it is not based on prior assumptions or models. Rather, hypotheses and theories emerge from the data, and are constantly evaluated and adjusted as the research progresses. Interviews are usually unstructured or semi-structured with open-ended questions developed in response to observations and ongoing analysis. The questions are designed to seek respondents’ interpretations of what is happening and allow them to describe problems, policy solutions, and their rationales in their own words.

What Anthropologists of International Law Study

While there are numerous areas of focus for anthropologists of international law, I will very briefly highlight a few important ones here: (i) the cultures of international organizations and international tribunals; (ii) the transnational circulation and localization of international legal norms; and (iii) the knowledge practices and technologies of governance in international law.

The Cultures of International Organizations and International Tribunals

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http://opiniojuris.org/2015/01/19/international-law-behavior-symposium-toward-anthropology-international-law/
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International Law as Behavior Symposium: An Introduction

by Harlan Cohen

[Harlan Cohen is an Associate Professor of Law at the University of Georgia School of Law]

This past November, the University of Georgia School of Law and the ASIL International Legal Theory Interest Group convened a book workshop on “International Law as Behavior,” at Tillar House, ASIL’s headquarters in Washington, DC. The workshop brought together scholars working in variety of different fields, including anthropology, behavioral law and economics, constructivist international relations theory, organizations theory, rational choice, social psychology, and sociology, to discuss how these approaches might best be applied to the study of international law, how these approaches can complement each other, the opportunities and challenges of working across these fields, and the development of a common language and tools to study how international actors actually behave. Participants included Anne van Aaken (University of St. Gallen), Elena Baylis (University of Pittsburgh School of Law), Tomer Broude (Hebrew University Faculty of Law), Adam Chilton (University of Chicago School of Law), Sungjoon Cho (IIT Chicago-Kent College of Law), Jean Galbraith (University of Pennsylvania Law School), Ron Levi (University of Toronto Global Affairs and Sociology), Tim Meyer (University of Georgia School of Law), Galit Sarfaty (University of British Columbia Faculty of Law), and Kathryn Sikkink (Harvard Kennedy School). A book based on presentations at the workshop that I will be editing will follow.

The workshop and book arise out of an intuition that there is more international legal scholars can learn from sophisticated work on legal behavior developing in other disciplines and more that scholars drawing on those disciplines can learn from each other. International law and legal scholars have long borrowed from a variety of disciplines to help understand the functioning of the international system. Important work on international law, including work of the New Haven and English Schools, has drawn on Law & Society, Anthropology, Constructivism, Linguistics, and Sociology. Drawing on international relations and economics, scholars have invoked principles of rational design to explain the shape of international agreements and international organizations and the choice between hard and soft law. Economic analysis has helped explain cooperation and compliance. Most recently, international law scholars have begun to draw insights from behavioral law and economics and psychology.

Instead of informing and enriching each other, however, these varied approaches have often developed in parallel and isolation, siloed off from the insights of the others. Drawing from distinct fields with their own languages and methods, scholars pursuing these approaches have often ended up talking past each other – if they spoke to each other at all. (There are obviously exceptions to these trends, including contributors to this project; readers of these posts know who you are.) The goal of this workshop and the edited volume to follow is to begin to bridge those gaps and foster the conversation between methods and approaches that might form the foundation for a study of international law as behavior. How do international actors actually behave and what drives their behavior? How and when is their rationality bounded by psychology? How do they operate as members of groups and recipients of culture? How do they write and follow organizational scripts? Dialogue between these approaches should only help to enrich all of them, suggesting new paths, blindspots, and even wrong-turns for each. Some of these methods will fit together well; others, whether because of initial assumptions or research styles and demands, may not. And, different approaches may have an advantage depending on the specific questions about international behavior being asked. But it is exactly these questions that we hope to explore.

Over the next few days, Galit Sarfaty, Jean Galbraith, Tim Meyer, Elena Baylis, Tomer Broude and I hope to give you a flavor of the presentations and conversations at the November workshop. Thank you to Opinio Juris for allowing us to showcase some of this project here. We look forward to hearing your thoughts and to kicking off Opinio Juris’ tenth year in style!

http://opiniojuris.org/2015/01/19/international-law-behavior-symposium-introduction/
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Weekly News Wrap: Monday, January 19, 2015

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

  • A delegation of US congressional Democrats began a three-day visit to Cuba to discuss expectations for the normalisation of relations between the United States and the island nation.

UN/World

http://opiniojuris.org/2015/01/19/weekly-news-wrap-monday-january-19-2015/
This entry was posted in Weekday News Wrap.

Weekend Roundup: January 17, 2015

by Jessica Dorsey

This week, we celebrated Opinio Juris’ 10th anniversary, with our permabloggers weighing in with their thoughts on the last decade of blogging. Julian kicked the discussion off with how the legal blogosphere has changed over the last ten years. Roger reflected on blogging and the marketplace of ideas. In Peter’s musings, he explored the evolution of international law as well as the role blogging has played and will play in the future. Duncan shared nine realizations that he has made over the last decade through blogging and teaching. Making international law no longer the invisible college but visible and accessible was at the heart of Peggy’s contribution.

Chris asked about the must-reads and key scholarly texts in international law over the last decade. Through tracing her own journey into international law, Deborah thanked Opinio Juris and the readers for the conversation. Kevin reflected on how blogging enhanced his career, and helped him to develop into the nicer, kinder blog version of himself he is today. Jens touched on the real-world impact blogging can and does have, while hoping for a continued discourse. Kristin capped the joviality off by wishing the blog a happy birthday and looking forward to the continued discussion.

Other contributions of note this week were two guest posts. The first from Rebecca Hamilton posed the question: When should the ICC call it quits? The second, by Oliver Windridge, was a great overview of the activities of the African Court of Human and Peoples’ Rights from 2014.

Duncan congratulated Dean Andrew Guzman on his new appointment at USC’s Gould School of Law and Kevin pondered the case of Roger Ver and whether renouncing US citizenship for “selfish economic reasons” makes you a bad person. And as usual, I wrapped up the week’s headlines and posted Events and Announcements.

Thanks for following us this week, and over the last decade. We’re very grateful to you readers for being part of the development of Opinio Juris and hope that the conversation continues far into the future.

http://opiniojuris.org/2015/01/17/weekend-roundup-january-17-2015/
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Weekly News Wrap: Monday, January 12, 2015

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

  • A girl perhaps no more than 10 years old detonated powerful explosives concealed under her veil at a crowded northern Nigeria market on Saturday, killing as many as 20 people and wounding many more. On Sunday, at least six people were killed after two suspected child suicide bombers blew themselves up in a market in northeast Nigeria, witnesses say, in the second attack involving young girls strapped with explosives.
  • The United Nations Security Council backed plans by Democratic Republic of the Congo and U.N. peacekeepers to begin a military campaign to “neutralize” a Rwandan rebel group in the country’s rugged eastern provinces.

Middle East and Northern Africa

  • The chief prosecutor of the International Criminal Court may be close to opening an initial investigation into last summer’s Gaza war.
  • Iran’s supreme leader Ayatollah Ali Khamenei told Venezuela’s president on Saturday he backed coordinated action between Tehran and Caracas to reverse a rapid fall in global oil prices which he described as a “political ploy hatched by common enemies”.
  • American-led forces launched 12 air strikes against Islamic State militants in Syria since Friday, all but one of them near the contested city of Kobani, the U.S. military said.
  • Reports have surfaced that a U.S.-led coalition airstrike killed at least 50 Syrian civilians late last month when it targeted a headquarters of Islamic State extremists in northern Syria, according to an eyewitness and a Syrian opposition human rights organization.

Asia

Europe

  • Two gunmen forced their way into and opened fire in the Paris headquarters of satirical magazine Charlie Hebdo, killing twelve, including staff and two police officers, and wounding eleven, four of them seriously. The gunmen escaped but a day later they were shot dead as they fled a warehouse where they had hostages north of Paris, firing at police. World leaders including Muslim and Jewish statesmen linked arms to lead more than a million French citizens through Paris in an unprecedented march to pay tribute to victims of Islamist militant attacks.
  • These attacks may fuel rising anti-immigration movements around Europe and inflame a “culture war” about the place of religion and ethnic identity in society. Over the weekend, a German newspaper in the northern port city of Hamburg that reprinted caricatures of Prophet Muhammad from the French satirical magazine Charlie Hebdo was the target of an arson attack, according to police and the offices of Le Soir, a Belgian newspaper that republished cartoons from the French satirical magazine Charlie Hebdo, were evacuated on Sunday after receiving an anonymous bomb threat, its staff said. Hackers claiming to be with the group Anonymous say they have hacked a jihadist website in retaliation for the terror attack on French satirical magazine Charlie Hebdo.
  • Transsexuals, transvestites and others thought to have what Russia considers to be “sexual disorders” have been barred from driving in the country for “medical reasons” under new road safety regulations.

Americas

  • More than a decade after a series of shootings and bombings in the Jerusalem area, a trial is slated this week in New York to determine whether the Palestine Liberation Organization and Palestinian Authority should pay up to $1 billion to victims.
  • Egyptian-born imam Abu Hamza al-Masri has been sentenced to life in prison after being found guilty of terrorism charges last year.

UN/World

  • The United Nations is immune from a lawsuit seeking compensation for victims of a deadly cholera outbreak in Haiti, a US judge said in dismissing a case that government lawyers said could open international body to an onslaught of litigation.
  • Hundreds of civilians were massacred in two separate incidents in South Sudan last year in which victims were targeted for their ethnicity, nationality or political views, possibly amounting to war crimes, the United Nations said in a report on Friday.
http://opiniojuris.org/2015/01/12/weekly-news-wrap-monday-january-12-2015/
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Holiday Roundup: December 20, 2014 – January 9, 2015

by An Hertogen

This holiday season, we trust Santa was still as safe as back in 1961 and that nobody received a lump of coal. We found some time to post, so if you were too busy to visit our blog, here is what you missed.

Kevin posted about a virtual roundtable on David Bosco’s “Rough Justice” in which he participated over at H-Diplo, and linked to his new essay on the use and abuse of analogy in IHL. Deborah agreed with Cliff Sloan on the closing of Guantanamo. Catherine Harwood wrote about the UN HRC inquiry into human rights violations in North Korea and Larry Backer commented on the recent normalisation of US-Cuban relations.

Finally, I listed the events and announcements and Jessica wrapped up the international law news (1, 2).

Watch this space next week as we mark our tenth anniversary!

Many thanks to our guest contributors and have a nice weekend!

http://opiniojuris.org/2015/01/10/holiday-roundup-december-20-2014-january-9-2015/
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Weekly News Wrap: Monday, January 5, 2015

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

UN/World

http://opiniojuris.org/2015/01/05/weekly-news-wrap-monday-january-5-2015/
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Weekly News Wrap: Monday, December 22, 2014

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

UN/World

http://opiniojuris.org/2014/12/22/weekly-news-wrap-monday-december-22-2014/
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