Events and Announcements: September 22, 2013

IL/IR Symposium: What Can IR Learn from IL?

[Jeffrey L. Dunoff is the Laura H. Carnell Professor of Law at Temple University Beasley School of Law and Mark A. Pollack is professor of Political Science and Jean Monnet Chair ad personam at Temple University]

Many thanks to Opinio Juris – and to all of the Symposium participants – for a stimulating and informative discussion of the virtues and vices of international law and international relations (IL/IR) scholarship.

The Symposium highlights some of the ways that IL/IR research has enriched our understanding of the making, interpretation, and enforcement of international law.  Larry Helfer’s post provides a superb summary of what IL/IR scholarship teaches about the design of international legal agreements, and in particular of flexibility provisions.  In terms of interpretation, IL/IR scholarship has prompted a rediscovery of international courts by political scientists, who seek to explain patterns in international judicial behavior.  Finally, as Jana von Stein notes, IL/IR research has produced both increasingly systematic data collection on IL compliance, as well as sophisticated understandings of the diverse causal mechanisms behind law’s compliance pull on states.

However, our project seeks not only to identify “lessons learned,” but also to identify IL/IR’s weaknesses, blind-spots, and potential for further development.  The lively exchange between Richard Steinberg and Ian Hurd (see here, here, and here), as well as the thoughtful posts by Judge Joan Donoghue, Ed Swaine, Tim Meyer, and Ruti Teitel, suggest several ways that existing scholarship can be strengthened.

In this concluding post, we explore a different critique, namely that IL/IR scholarship is less interdisciplinary than its name implies, frequently consisting of a one-way application of IR as a discipline to IL as a subject.

IL/IR Symposium: Comment on von Stein

[Tim Meyer is an Assistant Professor of Law at the University of Georgia School of Law] As is de rigueur in discussions of compliance with international law, von Stein’s chapter quotes in the opening paragraph Louis Henkin’s statement that “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time” (p. 477) – the claim that launched a thousand journal articles.  Appropriately, von Stein’s excellent review of the compliance literature returns to Henkin in conclusion, noting in sum that “we know, for instance, that it is not the case that almost all states respect their obligations almost all the time.”  (emphasis in original) (p. 495).  In between, von Stein provides a clear, concise, and illuminating review of theories of compliance with international law and the empirical evidence for and against, and empirical challenges in evaluating, these theories.  International law seems to drive states to conform to its mandates at least some of the time, and our understandings of the mechanisms at work is improving, if still in need of improvement. In this comment, I want to suggest one way in which we can deepen our understanding of how international law affects state behavior. Specifically, I want to problematize the notion of compliance as a dependent variable.  Von Stein’s essay describes the state of the art in compliance studies, but as Dunoff and Pollack note the IL/IR literature consists overwhelmingly of the application of IR theories to international law.  Reconceptualizing how international law affects state behavior is a key way in which law can increasingly inform IL/IR scholarship. To put it simply, compliance – “the degree to which state behavior conforms to what an agreement prescribes or proscribes” (p. 478) – is undoubtedly a useful place to start studying how international law affects behavior, and great strides have been made in this area, but moving forward we need a conception of legal process that more accurately reflects how states actually implement and evaluate compliance with international law.

IL/IR Symposium: The Engines of Compliance

[Jana von Stein is a Senior Lecturer in Political Science and International Relations at Victoria University of Wellington (New Zealand) and a Faculty Associate at the Center for Political Studies (University of Michigan)] When do – and don’t – states comply with international rules? For instrumentalists (adopting Keohane’s –admittedly simplified– categorization of the literature as ‘instrumentalist’ and ‘normative’, the puzzle starts with the observation that no overarching power exists to enforce international law. If there is no ‘highest power’ to enforce rules, why follow them? The ‘engines of compliance’ are typically more diffuse than in domestic systems, but they are nonetheless real:

• International inducements. Sometimes a state benefits enough from having others follow the rules that it pays the ‘cost’ of ensuring compliance itself, whether in the form of ‘carrots’ (e.g., trade concessions) or ‘sticks’ (e.g., economic sanctions). Inducements are typically decentralized and based on self-help, so their application can be uneven. Inducements also face typical collective action problems, and so often work best when a powerful state is doing the heavy lifting.
• Reciprocity. Axelrod demonstrated long ago that reciprocity can be an engine of cooperation if the involved parties are sufficiently sure that they will interact into the future. The same logic holds for compliance, under certain conditions. Reciprocal noncompliance must harm the party that is tempted to renege: this is why (direct) reciprocity is rarely useful in international human rights law, but can work in the realms of trade and war conduct. Reciprocity is also problematic if the ‘punishment’ can’t be limited to the violator, as is often the case in international environmental affairs.
• Reputation. For instrumentalists, reputation is a means to an end: a reputation for keeping promises can make it easier to secure cooperation more broadly or in the future. Reputation is important for predicting future behavior, not for punishing past actions. Scholars debate just how much reputation carries over from one issue-area to another, or from one government administration to another. What is more, concerns about reputation can sometimes push governments not to comply, for instance if they want to foster a reputation for protecting their interests or their friends. 

IL/IR Symposium: Reply to Judge Donoghue

[Joost Pauwelyn is Professor of International Law at the Graduate Institute of International and Development Studies in Geneva and Manfred Elsig is Associate Professor of International Relations and Deputy Managing Director of the World Trade Institute of the University of Bern.] We are extremely grateful for Judge Donoghue’s balanced and thoughtful comments.  We really appreciate the insights from someone who is actually operating from within...

IL/IR Symposium: Comment on Pauwelyn and Elsig

[Joan Donoghue is a Judge on the International Court of Justice.]  Interdisciplinary Perspectives is an important contribution to the international law/international relations (IL/IR) literature that deserves the attention of scholars and practitioners alike.  I am grateful to the editors for inviting me to comment on the interesting chapter by Joost Pauwelyn and Manfred Elsig. My first exposure to the IL/IR literature was in the early 1990s, when my particular interest was the role that international agreements play in addressing environmental concerns.  This literature has helped international lawyers to look beyond treaties to regimes, and has drawn our attention to the distinction between compliance and effectiveness. Serving as a judge on the International Court of Justice (ICJ), I have had the opportunity again to study the IL/IR literature, as I have pondered the role that an ICJ judgment plays in the resolution of a dispute.  There have been studies of compliance with the judgments of the ICJ and other tribunals. In addition, I have been pleased to see scholarly exploration of the more nuanced question of the effectiveness of judgments of tribunals, which calls for reflection of the goals of the tribunal (effective as to what?) and for an examination of the linkages between tribunal outputs and the roles of other actors, such as other UN organs, regional organizations and non-party states.  Many of the authors represented in the present volume are important contributors to the study of international tribunals. Interdisciplinary Perspectives demonstrates that the IL/IR field is diverse and maturing.  At the same time, the editors do not overstate its potency.  Like Anne-Marie Slaughter in her retrospective at the close of the volume, the editors are less “starry-eyed” (p. 624) than were some earlier adherents. Much as I welcome the study of international tribunals by IL/IR scholars, I also appreciate that there are obstacles to applying social science disciplines to these institutions.   Several challenges come to mind: 

IL/IR Symposium: The Politics of Treaty Interpretation

[Joost Pauwelyn is Professor of International Law at the Graduate Institute of International and Development Studies in Geneva and Manfred Elsig is Associate Professor of International Relations and Deputy Managing Director of the World Trade Institute of the University of Bern.] In principle, the Vienna Convention rules on treaty interpretation apply equally to all treaties and all international tribunals.  In practice, however, we...

IL/IR Symposium: Comment on Helfer

[Ed Swaine is Professor of Law at George Washington University Law School] Larry Helfer is the perfect author for a chapter on the topic of treaty flexibility mechanisms: he writes from both theoretical and empirical perspectives, has a wide range of substantive expertise (including in human rights and trade, two fields that are central to this topic), and has a penetrating and remarkably clear style of analysis.  He deliberately provokes a number of questions in his chapter and post; because I’m conscious that blog readers themselves have numerous “exit” options, like closing this tab, I will try to be brief and touch on only a few. This topic includes a wide variety of behaviors – reservations, denunciations, suspension, differentiated treatment, amendment, withdrawal, and so forth – and one set of issues concerns nomenclature and taxonomy.  Larry has a state-of-the-art table in his chapter laying out and sorting the flexibility options.  Personally, I have never been happy with describing certain formal flexibility mechanisms (those involving temporary relief from treaty obligations) as “escape” clauses, supposedly as distinct from “exit” clauses that entail permanent cessation of status as a treaty party.  Prisoners do not “escape” from Alcatraz with a view to returning; a word like “avoidance” better captures the idea in this context.  More generally, the categorization of flexibility mechanisms has certain routine difficulties – the basic problem of trying simultaneously to sort on when a state seeks flexibility and what its legal consequences are; conflicting tendencies both to include and exclude certain noncompliance acts as informal flexibility mechanisms; and an inherently unsatisfying distinction between so-called unilateral mechanisms (not always exploited in a completely autonomous fashion) and collective mechanisms (frequently, one suspects, prone to exploitation or capture by particular states).  Typology is rarely gripping, and I don’t want to mislead anyone into thinking that Larry’s chapter is focused on these questions or has unique difficulties with them.  However, they matter because we are concerned with the relationship among these mechanisms, principally in order to describe the choices states confront and make; he highlights this in his post as well.  In addition, beyond worrying whether these descriptions have formal integrity, we should also try to explore whether these are in fact the way state representatives think about the alternatives.  It might be the case, for example, that they focus predominately on collective rather than unilateral forms of flexibility, or informal rather than formal avenues, either of which might marginalize other kinds of inquiries. A second set of issues concerns the proper perspective on these questions. 

IL/IR Symposium: Flexibility in International Agreements

[Larry Helfer is the Harry R. Chadwick, Sr. Professor of Law Professor of Law at Duke University School of Law] I am delighted to participate in this Opinio Juris book symposium on Jeff Dunoff and Mark Pollack’s excellent edited volume. My chapter on “Flexibility in International Agreements” was improved by their many helpful comments and suggestions. This brief post summarizes a few of the chapter’s major themes.  Citations to all references can be found in the online and print versions of the chapter. Government officials, international lawyers, and diplomats have long been interested in shaping the form and content of treaties to manage the risks of international cooperation. These actors have responded to these risks with an diverse array of flexibility mechanisms, including unilateral reservation and declaration clauses; entry-into-force requirements; limitations on territorial application; duration provisions; amendment and revision procedures; and rules governing suspension, withdrawal, and termination. In addition to these formal mechanisms, a range of informal practices can enhance the flexibility of treaties.  Such practices include ad hoc supplementary accords, understandings, traditions, conventions, gentleman’s agreements, de facto modification of treaty obligations through conduct, auto-interpretation of ambiguous terms, and nonparticipation in treaty activities. A principal challenge facing treaty negotiators is to select an appropriately constrained suite of flexibility mechanisms that facilitate agreement among states ex ante while deterring opportunistic uses of those mechanisms ex post after the treaty enters into force. Flexibility tools that are too easy to invoke will encourage self-serving behavior and lead to a breakdown in cooperation. Tools that are too onerous will discourage such behavior, but may prevent the parties from reaching agreement in the first instance, or, if agreement is reached, may lead to widespread violations if the costs of compliance increase unexpectedly. Over the last decade, international law and international relations scholars have devoted growing attention to treaty flexibility tools.