Articles

Over the next several days we will have an online discussion on a recent article by Harold Koh on The Trump Administration and International Law, 56 Washburn L. J. 413 (2017). The article is based on a lecture Professor Koh gave at Washburn University School of Law last year, and is published in a special issue of the Journal that includes...

The forthcoming issue of the European Journal of International Law will feature an article by Professor Simon Chesterman, the Dean of the National University of Singapore’s Faculty of Law, entitled Asia’s Ambivalence About International Law and Institutions: Past, Present and Futures. This week, Opinio Juris and EJILTalk will hold a joint symposium on the two blogs on Professor Chesterman’s article. The...

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

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

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

[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?

[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.

[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.

[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: 

[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

[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...

[James G. Stewart is an Assistant Professor at the Faculty of Law at Allard Hall, University of British Columbia. His new article, The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute, can be found here.] Professor Beth Stephens was a pioneer in thinking about corporate accountability under the Alien Tort Statute (ATS), and a guiding light for all those emerging into a scholarly field that seemed strangely tolerant of a world without accountability in the corporate realm. When economists and political scientists problematized accountability as too costly or controversial, hers was the authoritative voice reminding us that a world without accountability is perverse. Thus, it is a great honor for me that she agreed to criticize my recent contribution to our common attempt at promoting accountability where there is usually (almost) none. To begin, I fear that Stephens may have misunderstood my central claim, for which I should take some responsibility. At different points, I get the impression that my article registered with her as a full-throated attack on the ATS and all those who worked so hard to develop it, as if I believed that the entire history of the Statute amounts to little more than a misguided blunder next to the flawless system of corporate criminal accountability for international crimes that was always waiting in plain sight to be deployed. This is far from my position, so I begin by clarifying this misunderstanding in case it has tainted her view of my argument, before addressing some of her more substantive concerns. I am very much for the ATS, before and after Kiobel. My project is purely comparative. At the beginning of my article, I confirm as much by stating “I prefer to isolate the upsides of corporate criminal liability for international crimes relative to ATS litigation, in the hope of identifying a form of accountability that will operate in a more cohesive and principled fashion with the ATS and other mechanisms moving forward. This, in other words, is a comparison not critique of the ATS, which I view as hugely important.” Although I gesture at this position once or twice later, I suspect that I needed to weave the point into much more of my argument to avoid being misunderstood by my kin. If my piece gives the impression that I view my ATS friends and colleagues as “short-sighted” in a pejorative sense, this is an unwelcome outcome I attempted to guard against in my drafting. In writing the paper, I was careful to insist that ATS scholars and practitioners “understandably” left out ideas that emanate from the criminal law. My recurrent use of the word “understandably” was intended to recognize that there was never any obvious reason that even the most brilliant experts in ATS would also be familiar with the intricacies of, say, the German theory of aiding and abetting. How could they know? If these issues bubble to the surface of these discussions now, it’s only because German theory has permeated ICL in ways that are largely unthinkable for American civil litigation. No one can see around corners. There is a deeper insight in this history that is so crucial for questions about corporate responsibility moving forward. David Kennedy is right that we all unavoidably have our intellectual blindspots. To deal with my own, I have tried hard within the article to call repeatedly for alternative, contradictory, interdisciplinary perspectives as part of my wider campaign for greater scholarly investment in these hugely important global questions. At the same time, I have also actively sought out the frank criticism of the world’s leading scholars (in slightly different fields) who see these things differently, as this series of blogs attests. I don’t believe that any meaningful attempt at regulating something as colossal as global commerce can afford to do otherwise—there’s too much our individual disciplinary biases blind us to. Next, Stephens argues that the “discovery” metaphor I employ to describe the recent debut of corporate criminal liability for international crimes in practice unjustifiably leaves out the valuable work of organizations like the International Commission of Jurists and the International Corporate Accountability Roundtable on these questions, but I very much see them as part of the discovery not separate from it.

[Beth Stephens is a Professor at Rutgers Law.] Two cheers for James Stewart and his forthcoming article, The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute. Stewart offers an enthusiastic endorsement of what could be an extremely effective mechanism to hold corporations accountable for egregious human rights abuses: domestic criminal prosecutions in their home states. Stewart’s comparative analysis of the Alien Tort Statute (ATS) is less sure-footed, however, and, for that failing, I withhold my third cheer. Stewart ranges wide through criminal law theory and practice to defend the viability and desirability of domestic criminal prosecutions for international law crimes. He explains that many states already have the domestic statutes necessary to authorize criminal prosecution of domestic corporations for international law violations such as war crimes and crimes against humanity committed in other states. This statutory foundation, along with the focus on prosecuting domestic corporations, should mitigate concerns about extraterritoriality such as those that have arisen in both civil claims under the Alien Tort Statute and universal jurisdiction prosecutions against natural persons. Criminal prosecutions, he explains, also tap into a rich set of liability standards that are potentially well-suited to the complex interactions of a corporation and its employees. Stewart correctly identifies some of the weaknesses of ATS litigation and the commentary it triggered. But many of those weaknesses result from applying an idiosyncratic eighteenth century statute to modern human rights abuses. For example, Stewart decries a rather unproductive dispute over the content of the international law standards governing aiding and abetting. He does not acknowledge, however, that the debate was triggered by the sui generis structure of the ATS, which grants jurisdiction over violations of international law, but provides no guidance as to a host of crucial issues, including the appropriate standards of liability. Moreover, commentators and some judges suggested applying a flexible federal common law liability standard to ATS cases, which might have resembled the analysis he favors. Many courts rejected that approach, however, leading to the narrow debate over the meaning of knowledge and purpose in international law. The “vociferous interest in complicity” that Stewart decries [24] was a product of the minimalist structure of the ATS and judicial decisions that further limited the range of possibilities, not lack of interest in or ignorance of alternative liability approaches. Crucially, similar statutory gaps and judicial bottlenecks are likely to arise in domestic criminal prosecutions, as each legal system applies its particular statutes, procedural rules, and theories of liability. These problems, of course, are consequences of a domestic law response to human rights abuses. But, having failed to recognize the impact of its domestic law origins on the trajectory of the ATS, Stewart also fails to grapple with the likely impact of idiosyncratic domestic law variations on the local criminal prosecutions that he favors.