Professional Documents
Culture Documents
Jeffrey L. Dunoff
Laura H. Carnell Professor of Law
Director, Institute for International Law & Public Policy
Temple University Beasley School of Law
1719 N. Broad Street
Philadelphia, PA 19122
E-mail: jeffrey.dunoff@temple.edu
Mark A. Pollack
Professor of Political Science and Jean Monnet Chair
Temple University
Department of Political Science
461 Gladfelter Hall
Philadelphia, PA 19122
United States of America
E-mail: mark.pollack@temple.edu
Laura H. Carnell Professor of Law and Director, Institute for International Law
& Public Policy, Temple University Beasley School of Law.
**
Professor of Political Science and Law and Jean Monnet Chair, Temple
University.
2013
But this formalist view of international law fails to account for the
wide variety of ways in which law is indeterminate; the ways in
which various actors use that indeterminacy; and the diverse
mechanisms through which international law may influence both
states and non-state actors.
In short, while IR writings have made enormous
contributions to our understanding of international legal
phenomena, when viewed from a perspective informed by current
international legal thought, IR accounts of international lawmaking, interpretation, and compliance are notable for their
occasional unwitting formalism, which in turn produces a number
of significant and persistent blind spots. As a result, IR scholars
often present a skewed picture of IL, which necessarily produces a
partial and misleading understanding of law and its effects on
states and the international order. We believe that IR scholars can
remedy these defects by drawing upon the theoretical frameworks
and empirical analyses of their counterparts in law. Hence, the
purpose of this paper is to begin a process of enriching IR
understandings, by exploring what the discipline of international
relations can learn from the discipline of international law.
To do so, this essay proceeds in three parts. Part I explores
why IR scholars have typically not drawn on IL thinking. It begins
with a thumbnail history of the relationship between the
disciplines. As is well known, the two fields were once in close
dialogue, but became estranged during the post-War era.
Understanding what triggered this estrangement, and the nature of
the recent rapprochement, sets the stage for our discussion of how
IR scholars can benefit from engaging with traditional and new
thinking in international law. However, disciplinary politics does
not fully explain why IL writings have not been influential. Thus,
Part I also surveys the epistemological obstacles to the use of
international legal thought by political scientists, including laws
strong orientation toward normative and prescriptive scholarship.
Despite these differences, we believe that legal scholarship offers
IR scholars significant conceptual, empirical and normative
insights.
Part II begins to identify those insights by providing a brief
primer on leading approaches to international law, with particular
emphasis on the most influential theoretical approaches developed
in the past half-century. This primer is designed to be a user-
For fuller accounts of this history, see Slaughter 1993: Keohane 1997.
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Legal Positivism
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C.
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For an excellent history of the American legal realist movement, see Horwitz
1992; for an application to international law, see Nourse and Shaffer 2009.
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D.
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Critical Approaches
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Rationalist Approaches
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III.
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Id at 795.
Barbara Koremenos, If Only Half of International Agreements Have Dispute
Resolution Provisions, Which Half Needs Explaining?, 36 J. LEG. STUD. 189
(2007).
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For violations of the rules on prohibited subsidies, WTO parties provided for
appropriate countermeasures. For violations of WTO rules on actionable
subsidies, trading states agreed on yet a different standard, namely
commensurate countermeasures.
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perverse incentives for states to violate WTO law and drag out any
resulting dispute processes; others argue that the system cannot
meaningfully be invoked by small states against large states. As
part of an ongoing review of the WTO dispute system, both the
African Group and a group of least developed states have
submitted proposals that would permit collective retaliation by
all WTO members against a noncompliant state.17 Among other
proposals, Mexico proposed that the authorization to retaliate be
tradable,18 Ecuador introduced a proposal to raise the level of
retaliation permitted,19 and the EC introduced a proposal to
prohibit so-called carousel retaliation.20
As even this cursory review suggests, in trade and many
other issue areas, states do not simply debate centralization, or
even whether or not to have a dispute system. Rather, their
discussions and their subsequent design choices are
substantially more nuanced and fine-grained than the design
choices highlighted in RD scholarship. Thus, while RD provides a
logical springboard from which to theorize about variation across
agreements, greater attention to legal knowledge would enable RD
and other IR scholars to structure theorizing and data collection
more tightly focused upon the design elements that states
themselves focus on.
b) International Legal Scholarship on Remedies
Given their practical importance to the functioning of
international dispute settlement mechanisms, and the substantial
efforts that states devote to negotiating over remedies, this topic is
ripe for IR scholarship. Happily, should IR scholars choose to
explore this topic, they need not write on a blank slate; legal
scholars have devoted substantial energies to this topic.
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For example, on the law of international responsibility, see, e.g., THE LAW OF
INTERNATIONAL RESPONSIBILITY (James Crawford, Alain Pellet, and Simon
Olleson, eds. 2010); for rules regarding treaty breach, see, e.g., SHABBTAI
ROSENNE, BREACH OF TREATY (1985).
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Guido Calabresi and A. Douglas Melamed, Property Rules, Liability Rules,
and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972).
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C&M acknowledge that most entitlements to most goods are mixed. Thus,
my right to my house is protected by a property rule in situations where my
neighbor wants to purchase it; by a liability rule when my neighbors tree falls
on my house or the government wishes to take it by eminent domain, and by an
inalienability rule when I am drunk or incompetent.
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important by both states and legal scholars but has been largely
ignored by political scientists. However, remedies hardly exhausts
the list of such features. While IR scholars have highlighted some
design features of international dispute settlement bodies (e.g., the
broad categories of delegation, access, and embeddedness in
Keohane, et al 2000), one can easily identify other important
features, including:
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law creation
from a legal
substantially
law-making,
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judges, effectively ignoring the large number of other quasijudicial or non-judicial actors who interpret international law on a
regular basis. A legal scholar, Cesare P.R. Romano (2011), has
catalogued the full range of international legal interpretation
bodies, noting that in many areas, the law is interpreted not by
international courts (which may be absent or lack compulsory
jurisdiction in a given case) but by other bodies such as treaty
secretariats or the various human rights and other committees that
interpret and apply often quite controversially the text of
international legal agreements. Strikingly, this broader canvas
reveals that much of the work of legal interpretation is carried out
not by judicial but by political bodies, the analysis of which might
be seen as a comparative advantage for political science scholars;
thus far, however, the work of these bodies has been examined
almost exclusively by legal scholars.
[Insert review of the existing legal scholarship on non-court
international legal interpretation bodies, e.g. environmental
implementation review and noncompliance systems and human
rights committees. IR scholars have begun to ignore the former
under the rubric of soft law and compliance studies, but have
ignored the latter.]
Finally, note that domestic governments also interpret
international law, as do domestic courts bridge to compliance
and internalization.]
C. Compliance
The subject of compliance with international law was long
neglected by both international law and international relations
scholars. Among legal scholars, there has been widespread
acceptance, and almost ritual incantation, of Louis Henkins (1979:
47) famous claim that almost all nations observe almost all
principles of international law and almost all of their obligations
almost all the time. Against this intellectual background, only a
handful of legal scholars sought to engage in any systematic
analysis of state compliance with international law prior to the
1990s. IR scholars similarly slighted the subject of legal
compliance until recently, assuming that law per se had no
independent causal influence on state behavior, with compliance
attributed largely to states instrumental calculation of their own
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In addition, although von Stein does not emphasize this point in her chapter,
the vast majority of quantitative compliance studies operationalize international
law in terms of state ratification of treaties, thereby ignoring both customary
international law as well as the possibility that widely accepted international
legal norms might exert a normative impact even on states that had failed to
ratify them.
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there are many who still consider that legal advice or criticism in
the international field consists of laying the norm invoked beside
the challenged decision and seeing whether the latter squares with
the former (Chayes 1974: 101). In place of this view, Chayes
continues,
International law, in its normative sense, must be
seen as indeterminate with respect to much of the
array of concrete choices open in a particular
situation. Often the rules have no authoritative
formulation in words. Even when they do, the
terms are open to a broad range of interpretation
and emphasis (Chayes 1974: 101).
This inherent indeterminacy of international law, finally, is
highlighted when the conduct of the state is at issue, because the
state and even the executive branch on which Chayes
concentrates his attention is not a unitary actor but a group of
actors, each with personal and bureaucratic interests and
perspectives (Chayes 1974: 28).
For Chayes, these difficulties are not a counsel of despair
about the potential influence of international law on state behavior,
but they do provide methodological counsel about the ways in
which to observe that influence: not by naively laying the norm
invoked beside the challenged decision and seeing whether the
latter squares with the former, but rather by examining the
decision-making process of the state with an eye to the ways in
which lawyers and legal arguments actually find their way into the
decision-making process.
In empirical terms, Chayes who served as the State
Department legal advisor at the time of the crisis and was a
participant in the decision-making process concludes that law
influenced the behavior of the US government during the Cuban
missile crisis in three primary ways: (1) as a constraint on action,
with legal arguments helping to sway the governmental debate
from the option of an air strike toward the eventual naval
quarantine; (2) as the basis of justification or legitimation for
action; and (3) as providing organizational structures, procedures,
and forums, including most significantly the Organization of
American States (OAS) and secondarily (given the Soviet veto in
the Security Council) the United Nations (Chayes 1974: 7).
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made, and a resource for various actors in the process was once
commonplace among legal realist scholars, and yet is largely
forgotten by modern political science scholarship.
Chayes disaggregation of the state does, of course, find
echoes in some contemporary political science scholarship,
particularly in liberal studies like Simmons which examine how
not just executive but also legislative, judicial, and civil-society
actors use international law to bolster their arguments and
positions in domestic policy debates (see e.g. Simmons 2009;
others). And to some extent Chayes acknowledgment of the
potential indeterminacy of law arguably finds its way into
contemporary IR through the emphasis on precision as a variable
in the legalization framework. Yet we are aware of no
contemporary political science scholarship that explores the ways
in which an indeterminate international law offers multiple
constraints and resources to actors on multiple sides of domestic
policy debates.
Finally, to the extent that contemporary IR scholars do
examine the role of law in states domestic and foreign policies, we
arguably see a bias in favor of a few specific issue-areas, including
in particular human rights, and (with a few exceptions, such as
Morrow 2007) away from the national security decisions that were
the focus of Chayes work.
Perhaps the closest thing to a successor to Chayes that we
find in contemporary scholarship is another legal scholar, Jack
Goldsmith, who like Chayes seeks to understand the role of law in
US national security decisions. Like Chayes, Goldsmith was a
participant as a legal advisor (in the White House Office of Legal
Counsel) during a period of upheaval in national security, and who
in a pair of recent books assesses how a vague body of national
and international laws fed into the debates inside the Bush and then
the Obama administrations war on terror (Goldsmith 2007, 2012).
Like Chayes, Goldsmith explores the roles of law and of lawyers in
the policy process, examines frankly the disputes among lawyers
regarding permissible interpretations of sometimes vague
international laws, and underlines also the key question familiar
to students of epistemic communities but largely ignored with
respect to law of the relationship between legal advisors and their
political principals.
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Harold Hongju Koh, Why Do Nations Obey International Law?, 106 YALE L.
J.. 2599 (1997).
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Id. at xxx.
Robert Keohane, When Does International Law Come Home?, 35 HOUSTON
L. REV. 699 (1999).
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Id at 702.
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Id. at 705.
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Id. at 709.
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See, e.g., Roper v. Simmons, 543 U.S. 551 (2005); Lawrence v. Texas, 539
U.S. 558 (2003). For a sampling of the controversy sparked by use of
international law in this context, see CTBS.
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In re Air Cargo Shipping Services Antitrust Litigation, 697 F.2d 154 (2d Cir.
2012).
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References
Kenneth W. Abbott, Modern International Relations Theory: A
Prospectus for International Lawyers, Yale Journal of
International Law 14, no. 2 (1989): 335-411.
Kenneth W. Abbott, Robert O. Keohane, Andrew Moravcsik,
Anne-Marie Slaughter, and Duncan Snidal, The Concept of
Legalization, International Organization 54, no. 3 (2000): 401-19.
Kenneth W. Abbott and Duncan Snidal, Hard and Soft Law in
International Governance, International Organization 54, no. 3
(2000): 421-56.
Kenneth W. Abbott and Duncan Snidal, The Governance
Triangle: Regulatory Standards Institutions and the Shadow of the
State, in The Politics of Global Regulation, eds. Walter Mattli and
Ngaire Woods (Princeton: Princeton University Press, 2009), 4488.
Robert B. Ahdieh, Between Dialogue and Decree: International
Review of National Courts, New York University Law Review 79,
no. 6 (2004): 2029-163.
Roger P. Alford, Misusing International Sources to Interpret the
Constitution, American Journal of International Law 98, no. 1
(2004): 57- 69.
Todd. L. Allee, Legal Incentives and Domestic Rewards: The
Selection of Trade Disputes for GATT/WTO Dispute Resolution,
unpublished paper, 2004.
Todd L. Allee and Paul K. Huth, Legitimizing Dispute Settlement:
International Adjudication as Domestic Political Cover, American
Political Science Review, Vol. 100, No. 2 (2006), pp. 219-34.
Karen J. Alter, Establishing the Supremacy of European Law: The
Making of an International Rule of Law in Europe (New York:
Oxford University Press, 2001).
Karen J. Alter, Agents or Trustees? International Courts in Their
Political Context, European Journal of International Relations,
Vol. 14, No. 1 (2008), pp. 33-63.
80
81
82
83
84
85
86
87
88
89
http://www.coleurope.eu/content/studyprogrammes/pol/docs/wp2_
Pollack.pdf.
Eric A. Posner and Miguel de Figueiredo, Is the International
Court of Justice Biased?, Journal of Legal Studies, Vol. 34, No. 2
(2005), pp. 599-630.
Eric A. Posner and John C. Yoo, Judicial Independence in
International Tribunals, California Law Review, Vol. 93, No. 1
(2005), pp. 1-74.
Roscoe Pound, Philosophical Theory and International Law, in
Bibliotheca Visseriana, (1923): 71-90.
Steven R. Ratner and Anne-Marie Slaughter, Appraising the
Methods of International Law: A Prospectus for Readers,
American Journal of International Law 93, no. 2 (1999): 291-423.
Kal Raustiala & Anne Marie Slaughter, International Law,
International Relations and Compliance, in HANDBOOK OF
INTERNATIONAL RELATIONS (2002): pp. xxx-xxx
W. Michael Reisman, International Lawmaking: A Process of
Communication, Proceedings of the American Society of
International Law 75, (1981): 101-20.
Christian Reus-Smit, ed., The Politics of International Law
(Cambridge: Cambridge University Press, 2004).
Cesare P. R. Romano, International Justice and Developing
Countries (Continued): A Qualitative Analysis, Law and Practice
of International Courts and Tribunals 1, no. 3 (2002): 539-611.
Cesare P. R. Romano, A Taxonomy of International Rule of Law
Institutions, Journal of International Dispute Settlement 2, no. 1
(2011): 241-77.
B. Peter Rosendorff and Helen V. Milner, The Optimal Design of
International Trade Institutions: Uncertainty and Escape,
International Organization 55, no. 4 (2001): 829-57.
John Gerard Ruggie, What Makes the World Hang Together?
Neo-utilitarianism and the Social Constructivist Challenge,
International Organization 52, no. 4 (1998): 85585.
Geoffrey Samuel, Interdisciplinarity and the Authority Paradigm:
Should Law Be Taken Seriously by Scientists and Social
90
Scientists? Journal of Law and Society, Vol. 36, No. 4 (2009), pp.
431-59.
Oscar Schachter, The Invisible College of International Lawyers,
Northwestern University Law Review 72, no. 2 (1977): 217-26.
Georg Schwartzenberger, The Inductive Approach to International
Law (London: Stevens & Sons, 1965).
Beth A. Simmons, Mobilizing for Human Rights: International
Law in Domestic Politics (New York: Cambridge University Press,
2009).
Gregory C. Shaffer and Ricardo Melndez-Ortiz, eds., Dispute
Settlement at the WTO: The Developing Country Experience (New
York: Cambridge University Press, 2010).
Gregory C. Shaffer and Mark A. Pollack, Hard vs. Soft Law:
Alternatives, Complements, and Antagonists in International
Governance, Minnesota Law Review 94, no. 3 (2010): 706-98.
Gregory C. Shaffer, Michelle Ratton Sanchez, and Barbara
Rosenberg, The Trials of Winning at the WTO: What Lies Behind
Brazils Success, Cornell International Law Journal 41, no. 2
(2008): 383501.
Anne-Marie Slaughter Burley, International Law and International
Relations Theory: A Dual Agenda, American Journal of
International Law 87, no. 2 (1993): 205-39.
David L. Sloss, Michael D. Ramsey, and William S. Dodge, eds.,
International Law in the U.S. Supreme Court: Continuity and
Change (New York: Cambridge University Press, 2011).
Steve Smith, The Forty Years' Detour: The Resurgence of
Normative Theory in International Relations, Millennium, Vol.
21, No. 3 (1992), pp. 489-506.
Duncan Snidal and Alexander Wendt Why there is International
Theory now, International Theory 1, no. 1 (2009): 1-14.
Richard H. Steinberg, In the Shadow of Law or Power?
Consensus-Based Bargaining and Outcomes in the GATT/WTO,
International Organization 56, no. 2 (2002): 339-74.
91
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