Response to “Protecting Rights Online”

by Peter Yu

Let me begin by thanking Opinio Juris and the Yale International Law Journal for hosting this online symposium. In “Protecting Rights Online,” Professor Molly Beutz Land has written a highly interesting article that seeks to bridge the disciplinary and doctrinal divide between the human rights and access to knowledge (A2K) movements. The article is well-written, accessible and provocative. It has made an important contribution to the debate about issues lying at the intersection of human rights and global information governance.
It is particularly refreshing to find Molly staying away from the traditional state-centered, inter-national approach, which is somewhat incomplete and increasingly misleading. Indeed, as shown in her discussion of the A2K movement, there have been many important recent developments at the sub-state and non-state levels. In examining both the human rights and A2K movements, the article successfully captures many of these developments. It paints vividly and realistically the growing dynamism, complexities and messiness in the area of global information governance.

Also of great interest is Molly’s model of “flexible harmonization,” an innovative model that employs “binding but imprecise international norms” (2). Like the “margin of appreciation” doctrine that the European Court of Human Rights has embraced, this model underscores the importance of building flexibility into the international human rights system. It seeks to protect the gains won by human rights activists in the past few decades while at the same time recognizing the difficulty in achieving international consensus in areas that many countries have deemed controversial and highly sensitive.

Protecting Rights Online

by Molly Beutz Land

Although the human rights and access to knowledge (A2K) movements share many of the same goals, their legal and regulatory agendas in the area of Internet governance have historically had little in common. While state censorship online has been a principal concern for human rights advocates, this issue has not been a central focus of the A2K movement. Likewise, human rights advocates have failed to examine the cumulative effect of expanding copyright protections on education and culture. Overcoming this divide and identifying areas in which the two movements can collaborate on issues of Internet regulation is critical to ensuring that they are able to draw on their respective strengths to address the pressing issues we face in protecting rights online.

This Article bridges the “human rights/A2K divide” in two ways. First, it explores how the historical development of each movement has led them to view the harms associated with online content—and thus the solutions that might address these harms—in very different ways. This history indicates that the most promising avenues for collaboration will be with respect to issues on which state authority is limited because of international obligations or the absence of resources or commitment on the part of the state. Second, building on recent literature concerning the design of international institutions, the Article develops a model of “flexible harmonization”—employing imprecise but binding international norms—that responds to the regulatory concerns of both the human rights and A2K movements. The Article then uses this model to evaluate two proposed regulatory frameworks for Internet governance and examines the conditions under which a model of flexible harmonization can be employed in other contexts.

Response to D. Jinks

by Robert Sloane

Many thanks to Derek Jinks for his kind words on the article and deeply incisive comments. I will do my best to reply sequentially to the provocative issues he’s raised.

1. I agree that conceptual overlap of ad bellum and in bello does not necessarily pose a problem for IHL. Indeed, as Jinks says, some discrepancy based on the nature of the parties is foundational to IHL, most prominently, the privileges and rights of state soldiers and the correlative prohibition on purposive violence by most private armies, which, unlike those of states, do not presumptively enjoy the combatant’s privilege. (Long footnote: I think that I disagree, however, with the ICRC Commentary’s view that soldiers fighting a war of aggression should be denied combatant immunity. I’m unsure of the context of this part of the Commentary. But I can’t recall an instance in which this proposition has received support in either state practice or opinio juris, or even, for that matter, de lege ferenda scholarship. None of the Nazis, for example, were tried for simple murder rather than war crimes, and it’s doubtful whether aggression remains a crime under customary international law. It should not be, in my view, but that’s an even longer digression. One of the principal rationales for the DA is the absence of a neutral arbiter, and any effort to identify one party as the aggressor and deny that party combatant immunity would, I think, foreseeably lead to the breakdown of IHL rules in the conflict.) The principal worry that I have about the influence of ad bellum considerations on in bello rules may be illustrated by a question I pose about the Kosovo campaign, an example that I flesh out in the article. To avert misunderstanding, I should state at the outset that I support NATO’s action under the circumstances and do not think the ICTY Prosecutor erred by declining to investigate NATO. But strictly in terms of the in bello legality of NATO’s conduct of that campaign, it seems to me that modern IHL requires belligerents to assume at least some risk (how much is debatable) to themselves to reduce the risk of death and suffering to enemy civilians. Yet NATO, by instructing its pilots to fly at a minimum height of 15,000 feet, deliberately reduced the risk to its own forces to zero at the cost of a substantial increase in the risk to Serbian civilians. Suppose NATO’s avowed ad bellum objective had been to annex and occupy Serbia (rather than to halt incipient ethnic cleansing). Would we be so quick to dismiss NATO’s in bello conduct of the war as lawful? I concede this is speculative, but it seems to me that our ad bellum appraisal of NATO’s conduct as humanitarian intervention influenced our in bello appraisal of how it conducted the military campaign.

2. In terms of the evidence: I suggest that the DA has been misconstrued or misapplied, sometimes deliberately, but more often subconsciously or tacitly—in part because of natural self-serving biases. I doubt that any belligerent would openly claim that the justice of its cause relieves it of or relaxes the in bello constraints under which it must conduct warfare (although, notably, the Soviet Union, North Vietnam, and others, in the past, and more recently, the United States, in part, in its conduct of the “GWOT” have made essentially this claim). But the gravamen of the article’s argument is that the DA is customary international humanitarian law as the prohibition on torture is CIL: there’s far more state practice than we acknowledge that’s in tension with the rhetoric and written word affirming the DA. The law-in-action, as Roscoe Pound famously put it, may well differ from the law-on-the-books—and in subtle ways. That doesn’t mean violations of the norms against torture or of the DA are lawful. But the examples of state (and non-state) practice and jurisprudence I supply seem to me to share, at bottom, a tendency to elide the DA. Readers of the article will make their own judgment. I concede I may be wrong, or exaggerating the extent of the trend. I hope that’s true.

3. Jinks’s point here is well-taken, and to a certain extent, the article does try to make the case that we need to tinker with the ad bellum, as it’s currently construed—for, at present, in my judgment, it encourages violations of the DA. That’s why I spend so much time critiquing the ICJ’s jurisprudence of war despite the fact that it seldom opines on IHL. The Court has a distinct institutional role in the international system and sees itself as the guardian of the U.N. Charter’s regime on force, so I don’t mean to fault the ICJ as much as may seem at first glance. The ICJ, however, is emblematic, in my view, of a trend toward eliding, rather than candidly confronting, the twenty-first century challenges of warfare. For as long as it insists on hewing to an anachronistic state-to-state paradigm, it encourages a divergence or disconnect between the law and the reality of modern warfare. As I say at the outset of the article, “the efficacy and normative force of the law of war is roughly commensurate to its correspondence to the nature and felt necessities of warfare.” It must be possible for elite belligerents operating in good faith to abide by IHL and still feel they can do their job, i.e., win or accomplish a military objective. “Insofar as [in bello-ad bellum] conflation obscures the need to refine the law of war to adapt to current sociopolitical conditions and to work out practical conceptions of [e.g.,] both ad bellum and in bello proportionality, it impedes the ability of international law to develop at both ends of the duality. To preserve the DA axiom in the twenty-first century therefore may well require reform of both in bello and ad bellum law. (For example, as I argue in the article, the law of war should decisively adopt the aggregative, rather than the atomized, conception of ad bellum proportionality: it’s both more realistic and reflects a more just balance between the competing values at stake.)

4. Here I have to punt—as I largely do in the article’s conclusion raising these points. It seems to me that there are, or will foreseeably be, situations in which, as I say, the very same humanitarian values that underwrite the modern DA may countenance limited exceptions to it—for example, if a war fought in technical violation of the DA is the sole politically feasible way to halt an incipient genocide. Conflicts of theoretically harmonious values—between the humanitarian imperative of the DA and the equally, if not (I would think) more, compelling need finally to cease the hypocrisy of saying “never again” and yet turning a blind eye to genocides—require political choices that I hesitate to opine on in the abstract.

5. Jinks is absolutely right to point to the difficulty in incorporating IHRL in the context of an armed conflict, while respecting the DA. The convergence of IHL and IHRL pointed out in Meron’s well-known article on the humanization of IHL will increasingly raise the kinds of questions that Jinks flags. Candidly, I haven’t thought these issues through well enough to respond in any depth. But I would say, in response to the example Jinks raises, that even though Iraq clearly qualified as the aggressor in 1990, that would not render every detention or killing of a Kuwaiti soldier an arbitrary deprivation of life or liberty in violation of IHRL. To say otherwise, I think, would be to deny the DA, and the consequences of that for IHL would be detrimental for both IHL and IHRL—and the relationship between the two. The circumstance of armed conflict, as the Nuclear Weapons decision rightly, in my judgment, said, alters what it means for a deprivation of life or liberty to be “arbitrary” within the meaning of, say, the ICCPR.

6. In the realm of proportionality, it’s very difficult to avoid allowing the ad bellum to influence the in bello. In theory, as just war theorists like Jeff McMahan and Thomas Hurka have argued, there’s a slippery slope from “concrete and direct military advantage” to “victory.” The challenge is for IHL to prevent the former from slipping into the latter, for if the relevant yardstick is “victory,” every in bello strike’s proportionate in theory. It’s for that reason that AP1, for example, uses the words “concrete” and “direct,” and enjoins a commander to determine whether such a military advantage (not ultimate victory) would be “excessive” relative to the civilian harm it will foreseeably cause. But the sorts of inquiries raised by the Prosecutor’s Report on Kosovo, reproduced on page 111 of the article, urgently need to be answered. That’s another article, but absent further work in this area, the kind of confusion about proportionality that reigned in the Israel-Hezbollah conflict will persist—as will the needless death and suffering caused by it.

Once again, my sincere thanks to Opinio Juris, YJIL, and Professor Derek Jinks. I welcome comments: rdsloane [at] bu [dot] edu.

Response to The Cost of Conflation: Preserving the Dualism of Jus ad Bellum and the Jus in Bello in the Contemporary Law of War.

by Derek Jinks

Thanks to the editors of Yale Journal of International Law and the hosts of Opinio Juris for the opportunity to comment on Rob Sloane’s terrific article, The Cost of Conflation: Preserving the Dualism of Jus ad Bellum and the Jus in Bello in the Contemporary Law of War. The piece is, in my view, essential reading for law of war scholars. I find myself in broad agreement with much of Sloane’s analysis so in my necessarily brief comments I offer a series of questions aimed at clarifying or strengthening his already compelling argument.

1. What is the nature of the dualistic axiom (DA)?. As Sloane points out, DA requires that in bello constraints apply equally to all parties to a conflict. In other words, DA in contemporary international law is a proposition of the jus in bello (or international humanitarian law or IHL)—it is not a structural principle straddling the ad bellum and in bello regimes. The idea is to ensure that no distinctions are made in the rules applicable to each party to a conflict—the irrelevance of the ad bellum justification available to each party is but one instantiation of this more general principle. Nevertheless, this formal equality of belligerents or the formal mutuality of obligations forecloses a certain variety of justification or excuse for acts prohibited by IHL. “Conflation” of, or conceptual overlap between, ad bellum and in bello constraints does not, as such, necessarily pose any deep challenge to IHL. Indeed, the scope and content of some IHL rules are modified, some directly and some indirectly, in their application by reference to ad bellum considerations. For example, POW status arguably does not accord combatant immunity for the crime of aggression (according to the ICRC Commentary on the Geneva Convention for the Protection of Prisoners of War). And whether any situation qualifies as an instance of military occupation within the meaning of Common Article 2 of the Geneva Conventions arguably requires some determination of which party is properly understood as the sovereign over the territory in question. Indirect examples include the fact that IHL imposes less onerous constraints on states when engaged in armed conflict against entities not protected by ad bellum rules. And IHL accords a the privileged postion to members of the armed forces of a state—recognizing a limited right to participate in the hostilities. The relevant IHL rules apply equally to all sides, but the actual application of the rule to some concrete case will, at times, requrie reference to ad bellum considerations. The worry that motivates DA is not a worry about the conceptual integrity of ad bellum and in bello regimes. Rather, the worry is that any assymetry in the obligations assigned the parties to a conflict must be avoided.

2. Is there good evidence that DA is eroding? Sloane, to his credit, points to many concrete examples of “conflation”—which, in his framework, includes examples of conceptual confusion between ad bellum and in bello constraints. But very few of these examples involve actors claiming that the constraints of IHL vary according to the ad bellum justifications (or lack thereof) available to the belligerents. In my view, the troubling examples include only (one reading of) the ICJ opinion on Nuclear Weapons and some of the US rhetoric in the war on terror. I’ll offer no justification of ICJ’s infamously obtuse holding in the Nuclear Weapons case. I will say, though, that the opinion likely provides little reason for serious worry about any erosion of DA particularly since the Court offered no sustained analysis of its seeming conflation of the in bello and ad bellum—and this aspect of the opinion is widely condemned as incoherent at best. The US rheotoric in the war on terror is potentially more troubling, but on closer inspection the US position does not purport to modify IHL constraints by reference to its casus belli. Rather, the US forwarded a construction of IHL that badly misconstrued the material field of application, personal field of application, and substantive content of that law. These claims at times turned on the character of the groups against which the US fights and the nature of the threat posed by such groups, but these points need not turn on—nor are they adequately rebutted by resisting any—erosion of DA. To be sure, claims grounded in some notion of “supreme emergency” may facillitate erosion of DA, but they need not.

3. Why is conflation, even in the limited sense suggested above, problematic? In explaining why dualism is important Sloane emphasizes the institutional rationale—the claim that dualism is necessary because international law has no reliable, effective ad bellum institutional mechanisms that might facillitate a viable aggressor-defender model. Without dualism, war will be prevalent and it will be conducted in an essentially unregulated way because all parties to the conflict will have formally plausible ad bellum justifications warranting relaxed in bello regulation. This rationale is terrifically important, however, over-reliance on it should be avoided. As a practical matter, the institutions in question might be improved—or alternatively, we might think the available institutions work sufficiently well in a non-trivial number of cases. And, as Soane acknowledges in the conclusion, the law of war might need to be reformed in any case to deal with what Sloane suggests are the truly difficult questions. If this is so, the very problem cases Sloane considers as important challenges to DA arguably counsel in favor of reforming the ad bellum machinery rather than tinkering with DA itself—particuarly if we are persuaded that the elimination of war ought be the regulatory priority and we are suspect of any formal equality of belligerents in many contemporary conflicts. In my view, the equality of belligerents (or DA) is also justified because general reciprocity is, as a sociological matter, necessary to ensure compliance with IHL—irrespective of whether any sort of ad bellum regime even exists and irrespective of whether we even have any intuitions about what a just or unjust war might look like.

4. How should we resolve the difficult unanswered questions flagged in the conclusion? Sloane seems to acknowledge, in the end, that some exceptions to DA might be appropriate—but the question is how, given the balance of his analysis, should be even think about the propreity of any such exceptions. This is important, in my view, because the rubber really hits the road on the advisability or acceptability of eroding DA precisely at the points Sloane seem to soften his stance. I sympathize with his position in the paper—that he has no definite answers on the scope or content of any possible exceptions to DA—but I wonder how we might even begin a transnatinal deliberative process regarding any such exceptions.

5. How should we incoporate international human rights law (IHRL) into the analysis of DA—and it’s possible exceptions? applies in time of armed conflict (even if only in the compromised way contemplated in formal derogation schemes) and in this limited sense is part of the full range of in bello constraints. The complication is that ad bellum considerations are ultimately relevant to many questions arising under IHRL. For instance, whether any killing in time of armed conflict is “arbitrary” within the meaning of IHRL surely would require inquiry into whether the attacking party acted in contravention of the ad bellum Same with any determination as to the arbitrariness of any detention in time of armed conflict. (e.g., when Iraq invaded Kuwait in 1990, surely every killing and detention at the hands of the Iraqi forces in Kuwait were arbitrary within the meaning of IHRL. If this is all right, then the scope and content (in the strong sense) varies depending on ad bellum considerations. Perhaps the development of an increasingly robust international law designed to protect human dignity (which includes IHL and IHRL) will inevitably erode DA.

6. Are the ad bellum and in bello proportionality inquiries completely distinct? Sloane is certainly right to say that these inquiries are importantly different, but I wonder whether at times the casus belli exerts important, and perhaps even decisive, influence on the in bello proportionality inquiry. The idea is that ad bellum proportionality should not accord parties unlimited discretion in selecting strategic, operational, and tactical objectives (only to balance the military advantage secured in a discrete operation, determined by reference to these objectives, against the collateral costs imposed on civilians). Instead, in bello proportionality, should understand the ad bellum proportionality constraints, determined by reference to the ad bellum justification advanced by each party, as establishing an outer limit for the legitimate military objectives that concrete operations might further. In this sense, it seems, there is at least one level of generality at which these inquires should overlap.

The Cost of Conflation: Preserving the Dualism of Jus ad Bellum and Jus in Bello in the Contemporary Law of War.

by Robert Sloane

In the first place, I want to express my thanks to the hosts of Opinio Juris and to the editors of the Yale Journal of International Law for the opportunity to discuss this piece in a public forum—and, above all, to Derek Jinks for kindly taking the time to read and comment on it. What animated this article is my sense that we have witnessed, and continue to witness, a largely tacit degradation in the vital axiom of international humanitarian law (IHL) that insists on the analytic independence of jus ad bellum and jus in bello, which, following Michael Walzer, I call the dualistic axiom. In short, that axiom says that in bello rules and principles apply equally to all belligerents, whatever each party’s ad bellum rationale for force (casus belli): be it, to cite the extremes, lawful self-defense or aggressive war in the service of a totalitarian ideology with genocidal designs. The axiom, as just war theorists have long recognized, therefore seems to produce counterintuitive results: as Thomas Hurka wrote, for example, “If military advantage justifies killing civilians, it does so only because of the further goods such advantage will lead to, and how much it justifies depends on what those good are.” So surely, he suggests, more collateral damage should be tolerated in a war against an enemy like Nazi Germany than in the Falklands War. Yet in law, in contradistinction to normative ethics, the injunctions of IHL would be far less effective, and in some cases might even cease to operate, were subjective, ideological, or politicized conceptions of the ad bellum justice or legality of each belligerent’s casus belli smuggled into IHL calculations. Scrutiny of jurisprudence and at least some state practice suggest, however, that such politicized appraisals of the legality or justice of particular conflicts have increasingly eroded the boundary between ad bellum and in bello constraints on war. They have also generated a related, widespread confusion in the application of proportionality, which has conceptually distinct ad bellum and in bello components that should be applied concurrently.

I offer three arguable examples of ad bellum-in bello conflation: the 1999 campaign against Kosovo; the thirty-four day war between Israel and Hezbollah in July 2006; and the resurrection of candidly justified torture in the “Global War on Terror.” What unites each, I suggest, is the often tacit view that ad bellum considerations may justifiably mitigate and perhaps even vitiate in bello constraints—including both context-dependent, flexible constraints such as the in bello principle of proportionality and absolute constraints such as the prohibition of torture or the denial of quarter. For example, the now infamous memorandum of Alberto R. Gonzales (actually, David Addington), asserting that “the war against terrorism is a new kind of war,” which “renders obsolete Geneva’s strict limitations on question of enemy prisoners and renders quaint some of its provisions,” may be understood as a suggestion that ad bellum considerations should justifiably relax, or even vitiate, what some see as anachronistic in bello constraints.

I trace the theoretical source of ad bellum-in bello conflation to familiar twenty-first century themes including the rise of transnational terrorist networks, asymmetrical warfare, geopolitical reconfiguration, and technological progress, as well as to the demise of the dualistic axiom’s traditional rationales: one theological, the other (broadly speaking) positivist. Early just war theorists espoused “probabilism,” the view that all belligerents in war should practice moderation because of epistemic uncertainty about which side fought on the side of divine justice. And in the nineteenth century, the high watermark of legal positivism, international law abandoned even the pretense of a genuine jus ad bellum. This rendered the idea of conditioning the legality of particular means and methods of warfare on a non-existent body of law simply incoherent. But with the reintroduction of a positive jus ad bellum in the postwar era, some scholars openly suggested that the dualistic axiom should indeed be abandoned, lest the Charter regime’s perceived authority suffer, or the elaboration of a new body of IHL rules and principles interfere with the postwar aspiration to abolish war for all time. Yet quickly, as early as 1953, Sir Hersch Lauterpacht recognized that the Charter regime, whatever the hopes of its drafters, would often prove quixotic and therefore that abandoning the dualistic axiom might well lead, in practice, to the demise of IHL, which would “cease to operate if [its rules] were made dependent upon the legality of the war on the part of one belligerent or group of belligerents.” International lawyers, almost without dissent, have since adopted Lauterpacht’s view and nominally affirm the dualistic axiom. But at least three trends, I think, have led to the subtle (and sometimes overt) degradation of the axiom in the actual practice of warfare: (1) an aggressor-defender model of war, whereby one belligerent implicitly denies the dualistic axiom by reference to the maxim ex injuria jus non oritur (a right may not arise from an illegal act), e.g., North Vietnam’s position in the Vietnam War; (2) the conceptual collapse of ad bellum and in bello proportionality, i.e., in effect, the confusion of architectural military objectives with the “concrete and direct military advantage anticipated,” which should be the focus of IHL (a phenomenon evident, for example, in the thirty-four day war between Israel and Hezbollah in 2006 and, more recently, in the tragic conflict in Gaza); and (3) “supreme emergency” arguments, which the ICJ arguably endorsed in Nuclear Weapons, and which underlie, for example, the hackneyed ticking time-bomb torture scenario.

Furthermore, while I lack adequate space here to summarize my critique of the ICJ’s jurisprudence of war, I suggest that the ICJ has done a disservice to IHL by adhering to a contrived (and now dated) view of the Charter’s ad bellum framework (supposedly identical to that of customary international law). It first set out this view in Nicaragua and, to the dismay of many, unreflectively affirmed it more recently in the wholly incongruous context of a virtual world war between states and non-state belligerents fighting in central Africa (Armed Activities on the Territory of the Congo). In effect, the Court has thereby avoided opining on the truly difficult and critical questions of ad bellum and in bello necessity and proportionality in the context of non-traditional warfare by focusing, instead, quite narrowly on an anachronistic vision of self-defense. It has also tended to disregard the dualistic axiom’s insistence that ad bellum analysis does not obviate the need to analyze ad bellum proportionality and the full corpus of the jus in bello.

The dualistic axiom is indispensable to the efficacy of the law of war, such as it may be, because it theoretically ensures that relatively common, if debatable, ad bellum violations do not obviate or diminish the humanitarian potential of jus in bello, modern IHL. Just war theorists, such as Jeff McMahan and Thomas Hurka, have done a superlative job analyzing the normative ethical foundations of the axiom and exposing its theoretical weaknesses. International law, I believe, ignores their analyses at its peril. Yet while such challenges to the dualistic axiom do not prove unassailable even in theory, in the final analysis, I suggest that the dualistic axiom, as a legal principle, remains firmly rooted in experience and an appreciation of the political and moral reality of war—more, to adapt Justice Holmes’s maxim, in experience than in logic. So the dualistic axiom should candidly confront serious objections raised by recent theorists. At the same time, for the axiom to operate most effectively, it must adapt to new geostrategic developments, technological advances, and changes in the nature of warfare. The article concludes by clarifying how the axiom might be conceived and applied today to best serve the values and policies that underwrite it. In particular, I suggest that the axiom, despite both theoretical and practical difficulties at the margins, must be preserved rigorously and self-consciously; that ad bellum and in bello proportionality should be clarified and applied concurrently with greater precision; and that international lawyers should consider whether the values that underwrite a “humanized” IHL and international human rights law alike should ever countenance limited exceptions to the axiom (e.g., in cases of humanitarian intervention or “transformative occupation”). Above all, my hope is that the article, for all its flaws, will help to revive a dialogue about the appropriate relationship between the traditional branches of the law of war in the twenty-first century—for these issues have been conspicuously (and, I think, dangerously) absent from that dialogue.

Response to Transnational Regulatory Networks and Their Limits

by David Zaring

It’s a pleasure to be able to comment on Pierre-Hugues Verdier’s excellent, if critical, article on networks. I respond as a defender: in my view, networks have notched some impressive achievements, and at their best, have become primary vehicles of international governance. From bank capital adequacy to mutual recognition on drug regulation to accounting standards, their list of achievements is, in my view, long.

Pierre disagrees. His claim, at bottom, is this: networks are basically ignorable, and because of this, they are frequently ineffective. They are ignorable because they cannot force their constituents to act in unpalatable ways, because of their informality, independence, and inability to distribute benefits and burdens across a variety of issue areas.

Pierre thus challenges networks on what, I think, their defenders have often argued are their signal advantage: we claim networks can offer meaningful international governance, often where treaties and courts cannot. His argument is powerful, and his article is a stimulating and elegant read, but, in the end, I do not think that we should reject the network form wholesale. I would defend networks by taking their measure comparatively, rather than on some absolute scale, by disputing the advantage of the formal or politicized grand bargain over the network, and by defending the value of institutions that succeed in resolving coordination games.

First: if networks fail, do they fail more or less often than other international institutions? Pierre proves his effectiveness point with case studies, and case studies can only tell part of the story. The Basel Committee enjoyed compliance early, he acknowledges, but late in its life the United States began to become recalcitrant, leading to a reformulation of the committee’s capital accords that promised to benefit American, and possibly European, banks more than any other. I’d emphasize the early achievements more than the later disagreements, but I’d also be inclined to ask about the other networks out there, of human rights lawyers doing more, perhaps, than the ICC to create global criminal law standards. And just as treaties are sometimes observed in the breach, and international custom ignored, networks may not enjoy perfect compliance at all times. IOSCO is an example of coordination that appears to have stopped at coordination of enforcement, in Pierre’s account, and I would largely agree. But holding networks to a perfect compliance standard is holding them to an unrealistic one.

Second, what’s so great about grand bargains? The legal institutions that, at least purportedly, are most encompassing are institutions regularly faced with intimations of desuetude. The United Nations, the International Court of Justice, the Law of the Sea Convention – all of these have signed up the many, and have lumbered along, ossified and frequently inactive because of it (the WTO is an exception). Networks offer less grand bargains – but that may be an advantage more than a problem, as I suggest below.

Third, what’s wrong with coordination? Many legal relationships are coordinative, in that both or all of the parties that participate in the relationship expect to benefit from it. Mutual benefit is the reason to enter any contract, but mutual benefit does not mean that contracts are failed legal instruments. Nor, as far as I know, do economists view specialist firms – firms that only produce one good, say – as less able to participate in contract than conglomerates that can trade wins in some contracts for losses in others. Specialized regulatory networks do coordinate, it is true, and they are not well-suited to trade, say, European antitrust standards for American accounting standards. But this does not mean that they cannot contribute coordination – indeed, their specialized expertise may mean that they are able to see coordination more easily than could, say, the UN, or diplomats at a US-EU summit.

Finally, for what it is worth, I think that few of the scholars who have written positively about networks are abject triumphalists. Anne-Marie Slaughter has said that networks will not replace states. Kal Raustiala has written about how networks can complement treaties, rather than replace them. I have written that networks may play the role of rulemakers in global administrative law, while other institutions will play the role of adjudicators. Indeed the only theorist who I associate with the networks-uber-alles position is David Mitrany, who wrote about the vast potential of technical coordination in the context of the failures of the League of Nations, and did so very long ago.

Network theorists should not champion their pet institution unreflectively, of course. Networks do not always work, and they do not work when we would most like them to work. The current financial crisis, for example, has unfolded with almost no international response by the Basel Committee and other economic regulators deemed to be the best, and probably the oldest and most established networks. Basel’s relative silence, IOSCO’s anodyne speeches and promises to study the matter further, and the lack of any serious response by the Financial Stability Forum, the putative network of financial regulatory networks, suggests that there are some things networks cannot do. And the primary role played by the G20 – really, a modern day Concert of Europe – in developing and coordinating what international regulatory response we have seen should give anyone pause about the primacy of law or law-like institutions in a world where political actors will continue to play a critical role.

But in the end, the problems of the network form means that perhaps it only deserves two cheers, rather than three. Pierre, I suspect, would give the network rather fewer kudos, and it is in this difference, partly of degree and partly of kind, where we ultimately disagree.

Transnational Regulatory Networks and Their Limits

by Pierre-Hugues Verdier

I would first like to thank Opinio Juris for hosting this online symposium on my recent article, Transnational Regulatory Networks and Their Limits. Opinio Juris has quickly become an invaluable means of keeping up with current developments in international law, and I am delighted to have this opportunity to share my thoughts with you.

In essence, the article sounds a cautionary note regarding the rise of transnational regulatory networks (TRNs) and the predominantly optimistic scholarship about them. In particular, it takes issue with the argument developed by Anne-Marie Slaughter in A New World Order, according to which TRNs are creating a revolutionary system of effective global governance without centralized world government. My response, instead of focusing on much-debated issues of accountability, representativeness or legitimacy, emphasizes the inherent limits on the effectiveness of TRNs in addressing transnational regulatory problems. This is something that lawyers tend to assume, perhaps because of the proliferation of TRNs and the sheer volume of standards they produce. I argue, however, that the effectiveness of TRNs is intrinsically limited by some of the very features—decentralization, informality, specialization—that make them normatively attractive to Slaughter and other scholars. The argument proceeds in two stages, the first theoretical, the second based on case studies of three major TRNs—the Basel Committee, IOSCO and the ICN.

First, on a theoretical level, I argue that the numerous domestic legal and political accountability mechanisms and other constraints faced by national regulators bind them to the interest of domestic constituencies and prevent them from pursuing optimal global public policy for its own sake. As a result, negotiations within TRNs reflect sharp political divides over the distributive consequences of alternative standards. Since national regulators active in TRNs generally lack the authority to offer trade-offs across issue-areas, such divides will be bridged by other means—such as weakening the substantive international standards, or imposing the standards favored by powerful states. Even after international standards are adopted, they will often be vulnerable to opportunistic defection by regulators under pressure to benefit domestic constituencies. In such circumstances, the institutional incapacity of TRNs to monitor or enforce these standards suggests that they are likely to unravel over time. In other words, localizing governance in networks of specialized regulators does not avoid the intensely political issues involved in any international negotiation, and it sometimes actually makes them harder to address effectively.

The second stage of my argument involves case studies of three TRNs—in banking, securities and antitrust—in light of my theoretical framework. In brief, these case studies reveal that TRNs have been relatively successful in overcoming international coordination problems where state interests converge—for instance, coordinating securities fraud enforcement among regulators in developed capital markets, or smoothing procedural inconsistencies and delays in international merger reviews. They have, however, faced serious difficulties when faced with distributive or enforcement problems. Thus, a close look at the Basel Committee’s capital adequacy standards reveals that, while the accord was initially successful in raising worldwide capital levels in the early 1990s, banks were gradually able to secure looser implementation by national regulators, a trend the Committee was essentially powerless to prevent. Indeed, banking interests essentially drove the recent Basel II reform, whose guiding principle was to align regulatory capital levels with internal bank risk management practices—an approach whose flaws are now evident. Likewise, the debate over cross-border enforcement of securities laws takes a very different shape when relations between major financial markets and offshore financial centers (OFCs) are concerned. Since the attractiveness of many OFCs depends on less stringent and transparent regulation, efforts to improve cooperation involve significant tension and coercive measures by powerful countries acting through bodies like the OECD and FATF.

The article concludes that ambitious claims regarding the transformative potential of TRNs are overly optimistic. Future scholarship on TRNs should be more sensitive to the political aspects of international regulation, and particularly to distributional and enforcement problems, the domestic incentives and pressures on national regulators, and the intrinsic limitations of informal governance structures. There should also be more interaction between international law work on TRNs, emerging political science work on international regulation, and legal scholarship in specialized areas of regulation such as securities, banking and antitrust. In my view, such research will contribute to international regulatory design by developing a pragmatic account of the conditions under which TRNs may be successful and desirable.

Yale Journal of International Law, Vol. 34-1: Online Symposium

by Editors of the Yale Journal of International Law

The Yale Journal of International Law (YJIL) is pleased to continue its partnership with Opinio Juris in this third online symposium. Today, Friday, and Monday we will feature three Articles published by YJIL in Vol. 34-1, which is available for download here. Thank you very much to Peggy McGuinness and the other Opinio Juris bloggers for hosting and joining in this discussion.

Today, Pierre-Hugues Verdier (Boston University School of Law) will discuss his Article, Transnational Regulatory Networks and Their Limits. Verdier’s Article serves as a counterpoint to scholars who are enthusiastic about the potential for transgovernmental regulatory networks (TRNs)—associations through which national regulators cooperate to address common regulatory problems—to create a system of effective global governance. Verdier agrees that TRNs may be successful in overcoming relatively simple problems of coordination when state interests converge. However, where the choice of a specific policy has distributive implications, or where participating states have incentives to defect, Verdier concludes that TRNs are unlikely to be successful. Verdier analyzes three of the most salient examples of TRNs—in international securities fraud enforcement, banking regulation, and antitrust—and shows that the institutional weaknesses inherent in TRNs have limited the effectiveness of cooperation in these areas. David Zaring (Wharton School, University of Pennsylvania) will be the respondent.

On Friday, Robert Sloane (Boston University School of Law) will discuss his Article, The Cost of Conflation: Preserving the Dualism of Jus ad Bellum and Jus in Bello in the Contemporary Law of War. Sloane argues that the traditional analytic independence of the two branches of the law of war—(i) the jus ad bellum, which governs the resort to war, and (ii) the jus in bello, which governs the conduct of hostilities—has increasingly eroded in the modern era. Sloane argues that the cost of this ad bellum-in bello conflation is high: blurring the two threatens to compromise the efficacy of each. His Article defends the continuing vitality of the dualistic axiom while suggesting ways to improve its application today in light of recent geostrategic developments, technological advances, and changes in the nature of warfare. Derek Jinks (University of Texas Law School) will be the respondent.

On Monday, Molly Beutz Land (New York Law School) will discuss her Article, Protecting Rights Online. In this Article, Beutz explains why the human rights and access to knowledge (A2K) movements have developed disparate legal and regulatory agendas despite sharing many of the same goals. Beutz argues that the movements’ lack of agreement has inhibited coherent regulation of Internet governance. Building on recent literature discussing the design of international institutions, Beutz develops a model of “flexible harmonization” —the use of imprecise but binding international norms—that responds to the regulatory goals and concerns of both the human rights and A2K movements. Beutz uses this model to evaluate two proposed regulatory frameworks for Internet governance and examines the conditions under which a model of flexible harmonization could be employed in other contexts. Peter Yu (Drake University School of Law) will be the respondent.

We hope that you will join us for what is sure to be a vigorous and thought-provoking exchange!