International Law as Behavior Symposium: Studying International Law as Behavior

[Elena Baylis is Associate Professor of Law at the University of Pittsburgh]

In my role as commentator for the in-person symposium that preceded this online symposium, I took on the task of identifying common themes among the symposium papers. This essay focuses on a few of the ideas drawn from the papers as a whole.

Treating international law as behavior engenders several kinds of complexity centered on a set of classic epistemological questions: what do we know and how do we know it? By using theoretical and methodological approaches drawn from sociology, anthropology, international relations, and other disciplines, we can observe aspects of international legal behavior that are not accessible through traditional legal analysis. The symposium participants describe international legal actions such as development of expertise, engagement with deadlines, and epistemic cooperation, by a wide variety of actors, including individuals, institutions, organizations, states and divisions thereof, and networks and communities. Even apart from the value of the analysis developed to explain and categorize this behavior, there is some satisfaction simply in exposing these many actors and modes of action to our view. However, doing so requires grappling with difficult methodological, theoretical, and conceptual questions.

The first set of complexities relates to the limits to what we can observe and how we can observe it. On the one hand, use of theoretical and methodological approaches from other disciplines expands the scope of what we can study by enabling us to directly examine actions rather than filtering our analysis through texts. Nonetheless, our tools, approaches, and positions still limit what we can observe. For example, some participants noted the difficulty of obtaining empirical data on behavior relating to international human rights, particularly in transitioning, conflict and post-conflict states. In some states, that data is present, but not easy to access because of institutional structures, language barriers, or other practical problems. In other states, that information is not merely inaccessible but not even in existence, and one would have to construct experiments or other data gathering methods to produce it. In addition, others observed that even if one can gain access to the desired information in those states, as an outsider, one inevitably brings a different cultural outlook that shapes every aspect of one’s research, starting with the original framing of research questions. To better understand the engagement of local actors with international human rights law, or of international human rights activists or other international actors with local institutions and processes, perhaps we need not more inquiry from local actors and observers, rather than more inquiry into the local. However, that conclusion provides little traction for outside scholars who wish to explore these questions. Thus, while taking interdisciplinary approaches expands the scope of what we can hope to observe, we may nonetheless find the data we seek difficult to acquire in practice.

Another type of complexity concerns selection of tools: how do we choose our theoretical and methodological approaches? While in principle one would like to select the theoretical and methodological approaches best suited to the subject at hand, in fact we come to each research project with a set of existing theoretical and methodological tools. It would be impractical, to say the least, to survey all the potential approaches and their relative value in attaining and assessing the particular kinds of information we are pursuing at the beginning of each project. In addition to the difficulty of undertaking such an assessment, acquiring competence in a field and in a theoretical model and a method are also costly, time-consuming enterprises that would be difficult to undertake anew at the beginning of each new line of research. So as a practical matter, we tend to have a few methods and theoretical models at our disposal, and to bring those tools to bear upon the questions that we find interesting, not because they are necessarily in each instance the ideal tools for the task, but because they are our tools and our questions.

The third set of issues is the complexity of the many kinds of conclusions we can reach by deploying different methods and frameworks. To consider this problem, we should set the pragmatic questions of the last sections aside for the moment. In determining the processes we focus on, the boundaries we draw, the questions we ask, and the methods we use, we might characterize the right level of inquiry as one that enables us to offer both explanatory force and effective intervention. But taking this approach, there could be multiple levels of valid analysis focusing on different levels of processes or entities, and thus presenting multiple explanations and interventions. Returning to the example of international human rights, if one studies the behavior of individual actors within international organizations, one will develop different explanations of the dynamics of those organizations’ engagement with international law than if one examines the behavior of those organizations as institutions interacting with each other.

Then, one is left with the problem of how to understand the meaning of these multiple analyses drawn from different aspects of international legal behavior: of how to contend with their co-existence, and especially with their intersections and contradictions. One possibility is to assert the legitimacy of a plurality of answers, each valid within their own contexts. So if we treat international law as genuinely composed of (and not merely implemented or informed by) actions, those actions and their meanings may well be determined by their own logic according to the characteristics of their own settings and the interests and awareness of the actors within those settings. As such, one would expect to find multiple legitimate explanations, due to the plurality of contexts in which actions are undertaken and meanings are produced. But while accepting the legitimacy of multiple answers, each valid within their own contexts, we could also look for points of interconnection and cross-determination. That is, some of the studied behaviors might produce external consequences that are not only determinative within their own context, but also have influence in other contexts and within other processes, and these might be of particular interest for further study and evaluation. But if we are to focus on these questions of interconnection, what modes of analysis should we use to compare the different meanings produced by different methodological and theoretical approaches in different real-world contexts?