Books

IL/IR Symposium: Flexibility in International Agreements

[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.

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

[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

[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? 

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

[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.’

IL/IR Book Discussion: Wanted- Dead or Alive: Realism in International Law

[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.] “Realism” is the theory international lawyers love to hate. Dozens of commentators have attacked realism or written its epitaph. Some commentators have even asked: is anybody still a realist? Many international law (IL) scholars challenge “realism” because most think it means that international law is epiphenomenal and so devoid of meaning – which could make their jobs irrelevant, wasteful, and quixotic.  But they also seem to love realism – or a version of it – because the misunderstood and mischaracterized structural realist straw-man claim that “international law does not matter” serves for them as the perfect foil for arguments that international law (IL) is important.  It is the null hypothesis that enables international lawyers to show that their argument and life’s work does have meaning.  There’s another reason IL scholars may dislike realism: it is seen as an amoral theory, at best.  And it offers a basis for attacking the feasibility of much of the normative work that espouses changing the status quo in international law.  In IL, a field that remains driven largely by normative agendas, realists constantly raise annoying facts and analyses that spoil the party.  Finally, realists don’t see nearly as much customary law in the world as most international lawyers who aspire to build a more legalized world order.  What’s not to hate? This book chapter argues that realism remains very much alive, not only because international lawyers have kept it alive by attacking a straw-man misinterpretation of the structural realist variant, but also because it is a useful tool for positive analysis of international law: even its structural realist variant (correctly understood) has heuristic power, and realist concepts may be hybridized with insights of other approaches – for example, cooperation theory in economics, liberalism, social construction theory, or empiricism – to constitute a valuable research program in international law, with substantial explanatory and predictive power. Finally, realism is critical for the advancement of normative agendas in international law.  Realism’s epitaph is premature. Realism in international law remains alive and vibrant.

Introducing Interdisciplinary Perspectives on International Law and International Relations: The State of the Art

[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] We are very grateful to our friends at OJ for hosting this symposium, which we trust will continue the work begun in our recent edited volume, namely providing a critical assessment of the innovations and contributions, as well as the lacunae, biases and blind spots, of international law and international relations (IL/IR) scholarship.  In this post, we kick off the discussion by providing a brief introduction to international law/international relations literature; discussing the motivation behind, and aims of, Interdisciplinary Perspectives on International Law and International Relations: The State of the Art; and identifying one significant conceptual shortcoming found in much IL/IR scholarship.

The Fall and Rise of IL/IR

The disciplines of international law (IL) and international relations (IR) both seek, albeit in different ways, to understand the causes and consequences of international cooperation, in general, and international legalization, in particular.  Perhaps not surprisingly, then, for several decades prior to World War II, practitioners from both fields pursued common research interests. However, the cataclysm of World War II brought this era of disciplinary convergence to a crashing halt.  Influential political scientists, such as Morgenthau, Kennan and Carr, argued that state actions were driven by national interests, and that, as Kennan wrote, international law was “too abstract, too inflexible, too hard to adjust to the demands of the unpredictable and the unexpected” that mark international affairs. A dominant school of “realism” argued that “law,” as understood in the domestic sense, could not serve as a meaningful constraint on states’ pursuit of the national interest in an anarchic international system, and for many years thereafter IR scholars paid little attention to international law or international legal scholarship.  One consequence was a decades-long mutual estrangement between the two disciplines. This period of mutual neglect began to ebb only with the end of the Cold War, and the increased salience of international norms and institutions. 

Linos Book Symposium: Response to Verdier, Cohen and Alford

[Katerina Linos is an Assistant Professor of Law at Berkeley Law] I am very pleased that Pierre Verdier, Harlan Cohen, and Roger Alford are offering the closing comments in the symposium on The Democratic Foundations of Policy Diffusion.  Of Pierre Verdier’s multiple contributions to the study of international networks and international economic law, I’ll single out his article “Transnational Regulatory Networks and their Limits,” as it is especially relevant to today’s discussion. In this piece, Pierre Verdier argues that Transnational Regulatory Networks may be ill-equipped to deal with the distributional conflict and defection risks that so often plague transnational cooperation. Harlan Cohen has written extensively about legal theory, legal history, constructivism, and fragmentation in international law. I’ll highlight his recent article “Finding International Law, Part II: Our Fragmenting Legal Community” as it contains the provocative claim that distinct legal communities are forming and creating deeply conflicting interpretations of international lawmaking. Among Roger Alford’s many contributions to international and comparative law, his article “Misusing International Sources to Interpret the Constitution” is particularly relevant today’s discussion, because of its fascinating analysis of the different actors who use foreign models to strengthen their arguments. These scholars’ posts raise three major questions:

• Can diffusion through democracy help solve issues like global warming, issues that involve significant externalities and interdependencies?
• What are the risks of diffusion through democracy?
• Can we compare judicial borrowing to legislative borrowing? And how does all this connect to yesterday’s decisions on same-sex marriage?

Linos Book Symposium: Comments by Roger Alford

I commend Katerina Linos’ book to our readers and echo the many positive comments that others in this book symposium have shared. Her theory of bottom-up democratic diffusion of norms addresses many of the concerns that have been voiced regarding the democracy deficit that occurs when policy elites borrow from abroad. I want to push Katerina a bit on the...

Linos Book Symposium: Comments by Harlan Cohen

[Harlan Cohen is an Associate Professor of Law at the University of Georgia School of Law] As others have already written, The Democratic Foundations of Policy Diffusion, is an extraordinary achievement.  Katerina Linos has succeeded in writing a book that is both bold and meticulous, counterintuitive and utterly convincing.  Reading the book, one feels a sense of excitement that we’re truly learning something new.  There is much to learn from it (among others things, the value of her multi-method approach – a model for others), and it is certain to move the conversation in a variety of fields. Others have already discussed the rich substance of Linos’ study.  My thoughts and questions are on Linos’ conclusions and implications, both those in the chapter of the same title (Chapter 8) and those left unstated. My main concern is that Linos’ study may be more consequential than the final chapter suggests.  It might just be that she’s too humble, but I’m not sure Linos’ conclusion chapter does justice to the radical implications of her findings.  Take the first set of implications she identifies, those regarding the legitimacy of policy diffusion.  “The good news,” as David Zaring summarized, is that far from being imposed by unaccountable foreigners or technocrats, health and family policies are borrowed from abroad as a result of democratic politics.  As Linos writes on p. 181, “[b]y connecting references to foreign laws and international organization proposals to majoritarian values, this theory offers a direct response to criticisms of foreign laws and international organizations’ recommendations as undemocratic.” As Linos recognizes, diffusion through democracy comes with concerns of its own.  Because politicians draw only upon those models to which voters are likely to respond – models from nearby and wealthy states – the policies adopted may not be the best available for their state.  Linos suggests that the foreign models they borrow from may be good choices; various theories of optimal borrowing suggest that shared legal heritage and success on the ground are positive indicia of good policy fit.  But whether or not these policies are the best, the overall implication is that, suggested by politicians and ratified by voters, these policies are at least legitimate (or better, more legitimate than critics of borrowing recognize.) I’m less sure. 

Linos Book Symposium: Comments by Pierre-Hugues Verdier

[Pierre-Hugues Verdier is an Associate Professor of Law at the University of Virginia School of Law] Katerina Linos’s new book, The Democratic Foundations of Policy Diffusion, is one of the most important contributions to arise from the recent turn to empirical scholarship in international law and international relations.  Instead of following a deductive path from broad theoretical assumptions, the book carefully combines survey evidence, cross-country regression analysis and case studies to paint a coherent picture of policy diffusion through democracy in the fields of health and family policy.  Yet, this careful and inductive approach leads to a central theoretical contribution to the field.  From a descriptive perspective, the book shows that non-binding standards with minimal institutional support can contribute to significant domestic policy shifts in high-stakes areas, despite resistance by domestic interest groups.  From a normative perspective, its model of diffusion through democracy may solve a perennial and vexing paradox of global governance, by providing international policy coordination that is both effective and consistent with democratic accountability. However, while the book’s focus on the often neglected areas of health and family policy is innovative and welcome, it inevitably raises the question whether the mechanism it identifies applies to other areas of international law and policy coordination. As the book points out, the field of social policy is characterized by non-binding international models rather than binding agreements, with a few exceptions such as ILO conventions.  Nevertheless, the book suggests in several places that diffusion through democracy may apply much more broadly to other policy choices, and can inform longstanding general questions of institutional design such as the choice of hard law or soft law instruments.  Likewise, the book’s conclusion implies that the normative benefits of this mechanism in alleviating the democratic deficit of global governance also apply to other areas of international policymaking.  In this short contribution, I want to suggest two reasons for caution is assessing the broader potential implications of this mechanism.

Linos Book Symposium: Response to Comments by Bradford and Brewster

[Katerina Linos is an Assistant Professor of Law at Berkeley Law] I am thrilled to receive comments from Anu Bradford and Rachel Brewster on The Democratic Foundations of Policy Diffusion! Anu Bradford’s contributions to European Union law, trade law, anti-trust law, and international regime theory are multiple and major, but I highlight her recent piece “The Brussels Effect,” as it connects well to today’s discussion. In “The Brussels Effect,” Bradford explains clearly why some jurisdictions are able to directly influence the choices of foreign firms and citizens through their market power while others are not. Rachel Brewster’s work on international legal theory, state reputation, trade law and climate change has greatly influenced my thinking. Her article “Stepping Stone or Stumbling Block: Incrementalism in National Climate Change Regulation” proposes fascinating and counter-intuitive interactions between national and international regulatory choices. I focus my response on two questions raised by both scholars:

• Do popular laws spread in different ways from unpopular ones? What changes when international organizations do not recommend expansions to social programs, but instead call for austerity measures and cut-backs?

• Does diffusion through democracy lead us to expect global convergence or regional silos?