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: 

• Many inquiries explore the reasons for the behavior of an actor – a tribunal, a party to a case. At most, an outside observer can only draw inferences aboutmotivation, based on observable behavior.
• Simplifying techniques that give power to IR theory (such as treating a state as a unitary actor) also mask dynamics that surely influence motivation, such as the disparate interests and roles of individuals within a particular institution or variations in the domestic legal context.
• There are persistent debates about methodology. For example, multiple variables attend to each judgment; the authors list many in their chapter.  Which variables are independent and which are dependent?  How do very small sample sizes (for some tribunals) weaken conclusions?

These were among the considerations that were top of mind for me when I read The Politics of Treaty Interpretation.  The authors identify five “interpretation choices” made by international tribunals:  (1) dominant hermeneutic (text, party intent, or teleological); (2) timing (original or evolutionary interpretation); (3) activism (work-to-rule or gap-filling); (4) case-by-case analysis or rule of precedent and (5) self-contained or systemic interpretation.  Their thesis is that variation in interpretation choices among tribunals is explained by “demand-side interpretation space and supply-side interpretation incentives.”  They make assertions regarding the dominant interpretation choices of particular tribunals based on what they call the “dominant view of scholars.”

The authors define “demand side” interpretation space with reference to the degree of contract completeness and “oversight” of principals. In speaking of “supply side” interpretation incentives, the authors look to the motivations of tribunal members and consider institutional features (tribunal lifespan, composition of the “constituency” and institutional competition) and “norms” (legitimacy of the institution, relevant interpretative community, legal tradition from which tribunal members come).

The authors argue that the greater the interpretation space (determined by the degree of treaty ambiguity and the relative ability of principals to take collective action), the more likely tribunals are to use expansive interpretation “strategies.”  In parallel, however, supply side incentives may steer a tribunal towards more or less expansive strategies.

The reader may wonder how all of this ground can be covered in a book chapter. The answer is that the authors have not attempted a full-blown study.  They make clear that they have not engaged in “proper empirical testing.” They candidly describe as a “hunch” their conclusion that the international lawyers’ debate about treaty interpretation (e.g., text, party intent or teleological approach) “is not the best proxy” for understanding the motivations of international tribunals and that unstated factors may instead be paramount.

I was struck that the chapter reveals both the promise and the limitations of IL/IR scholarship.  First, the question that the authors consider is fundamentally one of motivation – what caused a court to interpret a treaty in a particular way? Lacking direct evidence of motivation, the scholar is left with inference, which is complicated by the very large number of variables identified by the authors.  This calls for particular care in substantiating the conclusions on which inferences are based. Second, consideration should be given to the distinction between the motivations of individuals and the motivation that might be attributed to an institution.  The “demand side” variables (which define the tribunal’s freedom of action) appear to operate at the institutional level, while some of the named “supply side” variables shift focus to judges as individuals.  Finally, there is the problem of data.  For some tribunals (like the ICJ and the ICC), the sample size is very small. Moreover, the authors chose in their initial framing to rely on generalizations by other scholars about interpretation trends in particular tribunals, and some of these are entirely anecdotal. First-hand examination of the cases would be essential to substantiate the authors’ thesis.

The authors do not mince words in asserting that interpretative method may be “an ex post justification or ‘façade’”.  In their future work, surely they will do more to test and substantiate this “hunch.” But even if their thesis proves difficult to test, their observations about the competing pulls on tribunals are worthy of reflection.  The very phenomenon of “contract incompleteness” that creates interpretation space for tribunals is at play when a tribunal applies Articles 31 and 32 of the Vienna Convention, as one can see from international law literature on the meaning of those provisions. The authors invite observers to look beyond what a tribunal says about treaty interpretation and to reflect on the full range of considerations that may help explain why it was said.  Even when observations from IL/IR literature are not fully grounded by empirical work, they may nonetheless offer insights into the behavior of international institutions, states and other actors that contribute to the peaceful settlement of disputes.