IR/IL Symposium: Overview and Conclusions

[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.

In her concluding essay in the volume, a must-read tour de force, Anne-Marie Slaughter (624) takes up the interaction between IR and IL on the issue of normativity. She rightly reminds us that law is an inherently normative discipline-if one looks closely enough one will always find some normative commitment, assumption or slant behind even the most ostensibly “empirical” legal scholarship.

As Slaughter notes, obsession with “methodology” can lead to losing sight of what are the most relevant questions for international law. Slaughter, Dunoff and Pollack all seem to agree that IR scholarship has contributed to a narrow, unjustified focus on state compliance rather than the opening up the broader, more fundamental question of the impact of international law in the world. But it is refreshing to see Lisa Martin, a leading IR theorist, making the same point as the lawyers, in her fine chapter for the volume.

Dunoff and Pollack are right that the relationship or dialogue between courts and tribunals both horizontally and between different levels has not gotten the attention it deserves from IR scholars. This could be extended to other institutions. The Kadi case is a great example: how
might one model the complex interplay between the European Court of Justice, EU member states and political institutions, and the UN Security Council. Dunoff and Pollack are particularly right that domestic courts are unjustifiably disregarded as international legal actors;  Rob Howse and I emphasized the importance of including domestic adjudication and interpretation in the understanding of what we call “Cross-Judging” in international law.

This opens up the issue of the relative or comparative legitimacy of legal and political institutions at different levels of governance, global, regional, national, local. My current work on accountability seeks to address this, looking at the relationship between regional human rights courts and domestic legal and political institutions. Where there are multiple authorities, the question is not just the legitimacy of the ultimate or highest norm, but how different legitimate competences relate to one another. Concepts from federalism theory and practice here are relevant, underused and often misapplied when they are used. Jean Cohen’s recent book is an example of the value of federalism theory to conceiving problems of legitimacy in global governance, which (unless one holds to the world state fantasy) is inherently multi-level governance.