Guest Post: The ICTY Loses its Way on Complicity – Part 1

Posner and Sykes Book Symposium: Response by the authors

[Eric Posner is Kirkland & Ellis Distinguished Service Professor of Law and Aaron Director Research Scholar at the University of Chicago. Alan Sykes is Robert A. Kindler Professor of Law at NYU Law.] In Economic Foundations of International Law, we provide a treatise-like account of international law from a rational choice perspective. The book builds upon an already considerable body of work by many different authors, and we hope that it will stimulate further research in this area. We thank Andrew Guzman, Emilie Hafner-Burton, David Victor, Rachel Brewster, and Steve Charnovitz for taking the time to read the book and provide their reactions for this symposium, and Opinio Juris for hosting it. Here we provide a brief response to their comments. Hafner-Burton and Victor focus on the relationship between political science scholarship and legal scholarship, and see in an empirically grounded economic approach a way to reconcile the disparate focuses of the two disciplines, where in the past scholars in the two disciplines seemed to have trouble communicating with each other. We agree with their sentiments. Political scientists and law professors will always harbor different methodological orientations—political scientists, frankly, have higher standards both for modeling and empirical testing, while law professors are more preoccupied with interpreting legal texts and providing normative recommendations—but the rational choice framework provides a kind of portal between the two disciplines. Both groups understand the language of rational choice even if they find other theoretical constructs used by the other to be bewildering, and the rational choice framework provides a useful way to generate hypotheses for empirical testing. Hafner-Burton has herself been a leading figure in empirical testing of the effects of international human rights law, and although many law professors writing about human rights stubbornly refuse to engage with it, it is obvious that her work, the work of Beth Simmons, and that of other political scientists, will have a major effect on legal scholarship on human rights in the long run. By contrast, we question whether realist theory will ever have an impact on international law scholarship, and doubt that constructivism will ever have a distinctive impact on international law scholarship, though many of its premises and commitments mirror ways of thinking that have long played a role in legal scholarship of all types. Let us turn from positive to normative.

Posner and Sykes Book Symposium: Comments by Steve Charnovitz

[Steve Charnovitz is Associate Professor of Law at GW Law] Economic Foundations of International Law is an introduction to and reference work on the economic approach to analyzing and understanding international law. The book seeks to summarize and highlight the existing literature and to provide an intellectual framework for future scholarship.  In my view, this book succeeds in its purposes. The book is to be commended for its synoptic coverage of the entire spectrum of public international law. While some interesting topics are underemphasized (e.g., constitutional issues of international law), the book covers issues that I had not expected (e.g., such as exchange rate manipulation). I like the way that the issue of the intersection between international law and domestic law is included as one chapter in Part II "General Aspects of International Law" and the way in which the authors include a Part V on "international economic law" although I would have been happier to see a definition of that term.  The authors included the law of the sea chapter in the same part as their strong chapter on international environmental law, even though some parts of maritime law could have been placed under Traditional Public International Law. In any event, the broad scope of the book in itself enables the authors to achieve their purpose of providing a valuable reference work on public international law.  Although the book includes an index and a moderate amount of footnotes, the authors missed an opportunity to present a bibliography of sources so that one can see the whole of the body of  literature that the authors seek to promote. The book also suffers in not presenting a conclusion. Let me now address a few substantive weaknesses:

Posner and Sykes Book Symposium: Comment by Rachel Brewster

[Rachel Brewster is Professor of Law at Duke Law] One of the many virtues of Eric Posner and Alan Sykes’ new book, “Economic Foundations of International Law,” is that it provides the reader with a theoretically coherent and consistent overview of important international treaty regimes, substantive international rules, and state enforcement practices.  The book is a lucid introduction to international law for students and also contains sophisticated analysis of the dynamics of international legal systems for academics and international lawyers. A major theme of the book is that state compliance with substantive international rules is not always optimal.  This will be controversial with many audiences, but is extensively defended in the text.  Once the authors shift to this paradigm (where compliance with substantive rules is not the primary goal), then the question of remedies take center stage.  Remedies serve an important sorting function by defining the consequences of breach, permitting (even encouraging) “efficient” breaches, and discouraging those that are inefficient. Remedy law thus receives its own chapter (rare for international law), as well as an extended discussion in the international trade and international monetary law chapters. If remedies are properly calibrated, then they can support differing levels of enforcement.  To deter any breaches of international law, remedies should seek to eliminate any gains to the breaching party (accounting for the likelihood of detection).  To permit efficient breaches, the remedies need only provide expectation damages to the injured party.  As the authors argue, the creation of a third-party adjudicatory system of limited remedies can actually create more opportunities for “cheating” than a system of unilaterally determined responses to breach. How one assesses remedies and what is entitled to a remedy are thus important issues to maintaining optimal levels of compliance with international rules.  Posner and Sykes maintain that the best means of operating international remedy regimes is through a liability rule, where a court or arbitrator determines the level of damages, rather than through a property rule, where a court would issue an injunction against a breach and the parties would renegotiate the relevant legal rule (either globally or for the particular case).  Both approaches have costs.  The liability rule may produce errors because the judge or arbitrator cannot correctly assess the level of damage to the injured party.  The property rule allows the parties who have private information on the level of injury or gain to use this information in bargaining, but the property rule can have high negotiation costs and hold-out problems (if bargaining with multiple parties).  The authors argue that the costs of the liability system should be lower in the international context. Yet we can still debate whether the liability rule approach is really preferable in international law.  First, in bilateral or regional treaties agreements, a property rule may be preferable because the negotiating costs may be relatively low compared to the possible error of a liability rule, and concerns about hold-outs decrease.  Second, most disputes (if not most agreements) are bilateral.  The vast majority of the time, only a few states will bring complaints even if the allegedly breaching policy affects many states.  A number of factors, including power differentials and litigation costs, can prevent states from pursuing high quality cases.  For instance, in the WTO Upland Cotton case, the US policy affected a wide group of cotton-producing states, but only Brazil brought a case against the US.  If most cases are bilateral (or involve a small number of plaintiffs) then, again, negotiation costs and hold-out concerns are lower.  In addition, the property rule may better mimic an optimal remedy.  If only a small number of states bring claims, then a liability rule may be a very good filter for determining efficient versus inefficient breach.  A property rule may (but not always will) be a better filter because one complaining state can bargain for compensation based on the worldwide effects of the policy.

Posner and Sykes Book Symposium: Comment by Andrew Guzman

[Andrew Guzman is Professor of Law and Director of the Advanced Law Degree Programs at Berkeley Law School, University of California, Berkeley.] This is a superb book.  I say this without the slightest bit of surprise, as that is what one would expect from these authors.  In addition to the quality of the content, the book is all the more important because there is no comparable tour of international law from a law and economics perspective.  I have disagreements with some of the content of the book – it would be impossible to produce a serious book with respect to which other scholars were in total agreement – but this should now be a central part of the canon, not only of the law and economics of international law, but of international more broadly. It is perhaps a sign of a maturing discussion within international law that the book does not bother to include a discussion of why studying international law from an economic perspective is useful.  This area of legal scholarship has been slow to embrace analytical approaches and for many years anyone writing in that style felt the need to defend the methodology itself.  It would be wonderful if we have moved past that point. That said, it is worth noting that one of the benefits of an economic approach is that it encourages us to make clear our assumptions and models of behavior.  In so doing we more fully disclose our intellectual commitments which, in turn, allows others to challenge or build on our claims.  When we disagree, we can more effectively examine one another’s arguments and identify the precise points in dispute. In my brief comment, I would like to take advantage of this feature and build off of some of what Posner-Sykes say to make a point about international cooperation in general and, more explicitly, in the area of climate change.  I do not know if the authors would agree with my views, but the discipline imposed by an economic approach should, at a minimum, make clear why we disagree.