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

by Jeffrey Dunoff and Mark Pollack

[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. (more…)

IR/IL Symposium: Overview and Conclusions

by Ruti Teitel

[Ruti Teitel is Ernst C. Stiefel Professor of Comparative Law at New York Law School and a Visiting Fellow at the London School of Economics. She is the author of Humanity’s Law (OUP 2012).]

Dunoff and Pollack conclude that interdisciplinary engagement between international law and international relations scholars has contributed to the understanding of international law in a number of areas. They mention the rise of new actors and fragmentation as among the areas where one can discern such contribution. But they also point out that such engagement is an invitation to cross the fact/value divide, enriching our understanding of legitimacy-the normativity underlying international law.  As they observe, “although we can identify substantial number of value-added concepts and empirical findings on IL /IR literature on law-making, we can also find substantial blind spots and gaps.” (631).

I would observe that this points to one of the most important challenges of interdisciplinary scholarship and engagement: clarity about the questions one is asking and both the possibilities and limits of a particular methodology to help answer those questions. Of course, understanding the effects of international law is a hugely important question. Only a sterile formalist (largely a stereotype) would not be interested in that question. But, as Dunoff and Pollack note, IR theory has developed primarily as a device for explaining state behavior-states themselves are
understood (with the partial but significant exception of constructivism) as the relevant agents. But many effects will only be grasped if we have the tools to observe and analyze the conduct of other actors, and so here we rightly see scholars such as Ryan Goodman and Beth Simmons
deploying a different set of social scientific tools. (More…)

IL/IR Symposium: Comment on von Stein

by Tim Meyer

[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

by Jana von Stein

[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.  (more…)

IL/IR Symposium: Reply to Judge Donoghue

by Joost Pauwelyn and Manfred Elsig

[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 an international tribunal.

We would like to follow up on the argument that “outside observers can only draw inferences about motivation, based on observable behavior … Lacking direct evidence of motivation, the scholar is left with inference”.

We agree with Judge Donoghue and would like to push this debate a little further. While we observe behavior (e.g. a ruling) arrived at through a type of interpretation (which can be explicitly stated, merely implied or just a “façade”), this behavior is a collective decision of a court and is a result of deliberation and negotiation among a number of individuals. The challenge for researchers is to find out how influential certain actors were and what arguments prevailed. This information remains in the black box of judicial decisions. We know a lot about why courts have been created and we have a fairly good understanding of implementation and compliance. This missing part is in the middle. Our chapter tries to push the research frontier on this part.

From a researcher perspective, it might be of interest to have access to more information, such as minutes of sessions when the members of a court met, draft texts that evolved over time or background notes or issues papers prepared by law clerks or secretariat lawyers advising the tribunal or individual judges.  These would allow us to reconstruct and process-trace the internal debates. Such improved access is of course controversial. It would not only require an official policy to store this type of information and to allow researcher to get access to this data at some later point in time, such ex post transparency obligations may also have unintended consequences on the working of the tribunals (and individual members/staff). At the same time, tribunals and courts are legitimate institutions created by mostly democratic states. They follow democratic principles and the wider public has a right to know how they work. For instance, the WTO has developed a policy to declassify information about negotiations. Improved transparency could be helpful for researchers to uncover patterns and trends (help research to be less speculative and more fact-based). In sum, it would require striking a balance between access to information and sufficient time lags between the deliberation and the release of information so state principals cannot – based on scholarly work – sanction the behavior of serving members of a tribunal.

IL/IR Symposium: Comment on Pauwelyn and Elsig

by Joan Donoghue

[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:  (more…)

IL/IR Symposium: The Politics of Treaty Interpretation

by Joost Pauwelyn and Manfred Elsig

[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 observe a wide variation in methods and choices of treaty interpretation: across tribunals, in different policy areas, and even before the same tribunal looked at over time.

The international relations (IR) literature has largely overlooked the factors that explain the extent and scope of treaty interpretation. Although there is an extensive normative literature in international law (IL) as to the right way to interpret, empirical work still lacks mid-range theories to account for the observed variance of behavior across international tribunals. This chapter tries to fill this gap by providing a conceptual toolkit inspired by IL and IR theories to approach (i) the various types of “interpretation choices” (we describe five such choices, see table below) and (ii) underlying factors that may drive or explain these choices, distinguishing between factors related to “demand-side interpretation space” and “supply-side interpretation incentives”.  We provide illustrative examples to tease out our explanatory framework looking at a variety of tribunals (ICJ, ICC, ICTY, ECtHR, GATT/WTO, ECJ etc.) but do not engage in proper empirical testing.

As to the importance of treaty interpretation, two caveats apply. First, our claim is not that treaty interpretation is always the crucial factor in the outcome of disputes. In some cases, the tribunal’s establishment of the facts rather than the law is more important. Second, although we believe that a tribunal’s stated method of interpretation influences outcomes (especially where a court’s discretion is bound by a particular method selected by earlier courts), we do acknowledge that, in some cases, a tribunal’s interpretative method may be little more than an ex post justification or “façade” for an outcome reached on other grounds. (Table 1)

Explaining Variation:

We suggest that variation of interpretative methods across tribunals is not randomly distributed. We realize that the factors we list here are not exhaustive and sometimes overlap. Still, we believe that the framework captures the essential drivers and offers a useful way to distinguish between them. The choice of interpretation (or the mix) is a result of the interaction of two variables: “interpretation space” (largely determined by treaty negotiators or principals setting up the tribunal) and “interpretation incentives” (experienced mainly by the judges on international tribunals). (Table 2)

Interpretation space (the demand side) is defined by the degree of contract completeness and oversight of principals.  We conjecture that the greater the incompleteness and the more difficult for principals to collectively act the greater this space within which international tribunals can (or have discretion/freedom to) act.

Interpretation incentives (the supply side) are a result of institutional features and guiding norms that differ from one tribunal to the other. As to institutional features we discuss a tribunal’s lifespan, the composition of its constituency, and institutional competition. As to norms, three factors influence the supply side of interpretation: legitimacy, interpretative community, and legal tradition.

In summary, we argue that the greater the interpretation space the more likely tribunals are to use expansive interpretation strategies. This should be reflected in particular in teleological, evolutionary, and gap-filling interpretation techniques. However, this interpretation space interacts with a crucial second factor: a tribunal’s motivation (interpretation incentives). Having the space to engage in expansive interpretation strategies not always leads to such strategies: space is a necessary but not a sufficient condition and how this space is filled out depends on interpretation incentives.  We have listed institutional factors and norm-type factors that condition a tribunal’s motivation. These supply-side incentives may, in turn, steer the tribunal toward more or less expansive strategies. At this stage, we only provide examples to illustrate our framework. The next step would be to explore in greater detail the interaction effects between interpretation space and interpretation incentives to offer more specific hypotheses to be tested empirically.

IL/IR Symposium: Comment on Helfer

by Edward Swaine

[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.  (more…)

IL/IR Symposium: Flexibility in International Agreements

by Larry Helfer

[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. (more…)

IL/IR Book Discussion: Beyond the “Isms War”?

by Jeffrey Dunoff and Mark Pollack

[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]

One of the most difficult choices in our book, and one of the most contentious discussions at two book workshops, was about how to approach the question of “theory.”  Our approach was to identify four research traditions in IR that had been invoked productively by IL/IR scholars – namely, realism, institutionalism, liberalism, and constructivism – and ask four leading scholars to review and identify how each tradition had been adapted and developed to explore the making, interpretation and implementation of international law.

Doing so, however, posed two problems.  First, it privileged IR theory over international legal theories.  We agreed with this critique, but we felt that the centrality of IR theories in the IL/IR literature in fact reflected our view of the literature more broadly, which is that what was labeled IL/IR scholarship was not primarily interdisciplinary in nature, but represented the application of IR theory and methods to international law as a subject.  We see this imbalance between IR and legal theory as a lamentable feature of contemporary IL/IR scholarship – a point to which we will return in a subsequent post – but one that accurately reflects the current state of the field.

Second, a number of our participants were concerned that, in selecting these four theories and asking our authors for canonical statements of each, we were reifying distinct, non-overlapping theories, and thus aggravating a decades-long “isms war.”  Far better, some contributors suggested, to do away with the isms altogether, in favor of a “non-paradigmatic approach.”  Despite such concerns, our own view was that realism, institutionalism, liberalism and constructivism, as distinct theoretical research programs, have been the intellectual nurseries within which scholars have developed and refined theories and testable hypotheses about factors such as power and distribution (realism), information and institutions (institutionalism), domestic and transnational society (liberalism) and norms and ideas (constructivism).  In this symposium, for example, Richard Steinberg makes a strong case for the distinctive contributions of realist theories focusing on states, state interest, and state power.

IL/IR Book Discussion: Steinberg Reply to Hurd

by Richard Steinberg

[Richard H. Steinberg is Professor of Law at the University of California. Los Angeles; Visiting Professor of International, Comparative & Area Studies at Stanford University; and Director of the Sanela Diana Jenkins Human Rights Project.]

I am grateful for Ian Hurd’s thoughtful comment on my book chapter partly because it supports my claim that that everyone borrows from the realist tradition.  Moreover, Hurd’s comment inadvertently recapitulates a narrow structural realist view of international law (recalling the associated dysfunctional debate of the 1980s) that I intended my chapter to supersede, offering me the opportunity here to underscore the approach of my chapter, which sees the utility of employing a longer-lived realist tradition for understanding international law . . .

First, Hurd expresses apparent disappointment that most of my claims are completely acceptable to him and constitute orthodoxy among international relations scholars.  My claims are “so encompassing that there is little to disagree with.”  For example, Hurd agrees with me that analysts of international politics should take into account states, state power, and state interests, and that states strive to use their power to create a legal order that favors their interests.  Apparently, my clear restatement of concepts rooted in the realist tradition, going back two and a half millennia, is not disagreeable—except to the extent that Hurd thinks my restatement is not realism.  “The problem here,” Hurd writes, “is that few scholars of any stripe would deny these premises or empirical patterns” and so Hurd is “doubtful” that “this is ‘realism.’”  But the fact that these premises and patterns are broadly accepted does not negate the fact that they are rooted in the realist tradition—the mode and level of analysis common to people like Thucydides, Machiavelli, and Morgenthau.  These premises and patterns are certainly not the preoccupation of the liberal tradition, with its focus on individuals and nonstate actors as drivers of state interests and action, nor of constructivism, with its focus on the social roots of epistemologies, norms, and interests.

Hurd’s declaration that these realist premises and patterns are broadly accepted is gratifying to those who have identified themselves with the realist tradition in their understanding of international law—but who in the last thirty years have been intellectually flogged for doing so by those who have attacked a straw-man version of realism described in my chapter.  For Hurd, the shortcoming with my chapter seems to be that a correct distillation of the realist tradition offers little to disagree with.  Sorry to disappoint.  As stated in the last line of my chapter:  Perhaps everybody is still a realist.

So, what does Hurd disagree with?  (more…)

IL/IR Book Discussion: Comment on Richard Steinberg, “Wanted Dead or Alive: Realism in International Law”

by Ian Hurd

[Ian Hurd is an Associate Professor in Political Science at Northwestern University]

Steinberg opens his chapter with the line that “realism is the theory that international lawyers love to hate.” But he goes on to present a version of realism that is so encompassing that there is little to disagree with.

Realism, he says is about “the state, state power, and state interests” (147). He emphasizes that state power plays a role in making international law and in shaping states’ responses to international law. Among other things: “powerful states (or their rulers) conclude treaties to advance state interests…. Hence, powerful states could sometimes impose international law on weaker states, and sometimes states could agree among themselves on issues of common interest” (147). He also notes that powerful states use law to shape the capacities of others, which implies that they gain some advantage from this (157). International law is therefore a product of state power, and a contributor to it. IR/IL scholarship must focus on the complex dynamics among power, interests, and law.

As a description of some key elements of international politics this has much to recommend it. What is left of international politics if one leaves out states, state power, or state interests? There are many non-state forces in international relations but many are interesting for how they connect with or contradict state power. Who would deny that powerful states often evade their legal obligations, or that they strive to use their power to create a legal order that favors their interests? State agency is not absolute and it is shaped by international legal forms among other things, but one cannot deny that it exists.

But therein lies the problem — it takes on so much that it is hard to see what a non-realist approach to IR/IL could be.

Steinberg sets out to make essentially two points: first, that scholars of international law should pay more attention to power, especially state power, and its relation to international law; and second, that to do is called ‘realism.’