What Can Irs Learns From Il

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WHAT CAN INTERNATIONAL R ELATIONS LEARNFROM INTERNATIONAL LAW?

Jeffrey L. DunoffLaura H. Carnell Professor of Law

Director, Institute for International Law & Public Policy

Temple University Beasley School of Law1719 N. Broad Street

Philadelphia, PA 19122E-mail: [email protected]

Mark A. Pollack Professor of Political Science and Jean Monnet Chair

Temple University

Department of Political Science

461 Gladfelter Hall

Philadelphia, PA 19122United States of America

E-mail: [email protected]

Paper prepared for presentation at the University of California at San Diego, 29

May 2014. This is a draft. Comments are welcome, but please do not circulate orcite without permission. Note to UCSD readers: apologies for the length of this

paper, which may later be expanded to a book or shrunk down to article length.

Part I of the paper reviews the existing IL/IR literature, and can be skimmed bythose familiar with that literature. Part II provides a primer of international legal

theory for political scientists, and can be skimmed by those who know thatscholarship. The core of the paper can be found in Part III, where we provide

what we think are some significant value-added insights of IL scholarship for IR.

We would particularly appreciate comments on this section.

© 2014

mailto:[email protected]












What Can International Relations Learn From International Law? 1

WHAT CAN INTERNATIONAL R ELATIONS LEARN FROM

INTERNATIONAL LAW?

Jeffrey L. Dunoff *

Mark A. Pollack **

International Relations (IR) has long enriched itself by

drawing conceptual frameworks and theoretical insights fromcognate disciplines – with one curious exception. IR scholars are

centrally concerned with the causes and consequences of

international cooperation and, increasingly, international law andlegalization. International lawyers share these scholarly preoccupations, and so one might imagine that scholars from

international law (IL) and IR would share overlapping research

interests and scholarly agendas, and commonly draw upon insightsfrom the other field. In fact, however, the two disciplines were

estranged for much of the 20th century, and developed along

parallel but rarely intersecting paths. Although the mutual neglect between international law and politics began to ebb with the end of

the cold war, and a vibrant IL/IR literature has emerged in the past

two decades, the intellectual terms of trade in this literature have

been strikingly asymmetrical. Specifically, most IL/IR writingsinvolve the application of IR theories and methods to the study of

international legal phenomena, with little or no attention to the

potential contribution of international legal scholarship.

To the extent that IR scholars consider international legaltheory at all, it is often to dismiss it as unhelpful, because it is

thought to be either unduly narrow in its focus upon the language

of international legal texts; politically naïve in devoting substantialattention to unenforceable legal rules but failing adequately to

account for power; or methodologically suspect, as legal writings

* 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



2 What Can International Relations Learn From International Law?

are often prescriptive (urging reform of legal rules or institutions)

but rarely positivist (in the social-scientific sense of empirically

testing causal claims about the world). In short, legal scholarshipis seen as excessively formalist, and legal thought is often

condemned for paying undue attention to the language of legalrules and insufficient attention to the practical realities and

inevitable tradeoffs that drive international affairs.

Ironically, by failing to account for what lawyers know

about international law, IR scholars may themselves unwittingly

embrace a type of formalism that is insufficiently attentive to thetheoretical complexities and the empirical realities of the

international legal order. For example, contemporary IR accounts

of international law-making are dominated by a rational designapproach that focuses almost exclusively on treaties and formal

institutions. This approach has generated important insights, but

overlooks many dimensions of institutional design that are of

central importance to states, and ignores significant non-treaty law-making processes, including the push and shove of customary

international law formation.

Similarly, IR analyses of international legal interpretation

focus almost exclusively on the behavior and independence ofinternational courts, misleadingly overlooking the numerous other

sites where interpretation and application occurs, including

committees, councils, and other subsidiary treaty bodies. Suchstudies also tend to reduce international judicial behavior to a

single dimension of dispute settlement – does the court rule for or

against state x? – and largely neglect the other dimensions of

judicial decision-making, including the interpretative choices thatcan determine not only individual judicial rulings but also the

development of international law over time. Perhaps most

importantly, IR studies of law application ignore the ways in whichdiverse actors use international legal arguments as a resource when

advocating for specific policy outcomes in both internal and

international political fora.

Finally, IR studies of compliance often assume implicitlythat international law consists of a series of unambiguous legalrules embedded in international agreements, and that international

law’s effects are most relevantly measured in terms of state behavior that is (or is not) consistent with the terms of these rules.




But this formalist view of international law fails to account for thewide 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 bothstates 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 currentinternational legal thought, IR accounts of international law-

making, 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 scholarsoften present a skewed picture of IL, which necessarily produces a

partial and misleading understanding of law and its effects onstates and the international order. We believe that IR scholars can

remedy these defects by drawing upon the theoretical frameworksand 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 internationalrelations 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 thedisciplines. 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 howIR 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 law’sstrong 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 particularemphasis on the most influential theoretical approaches developed

in the past half-century. This primer is designed to be a user-




friendly introduction to the major strands of international law

thinking and the work of its leading contributors, demonstrating

that the common image of international legal scholarship as overlyformalistic and blind to political realities is obsolete, at best, and

that IL scholarship offers important insights into issues that political scientists care about.

Part III turns more directly to how international legal

writings can advance IR thinking. In particular, we discuss three

broad areas of inquiry – the making, interpretation, and

enforcement of international law – where international lawapproaches can make a distinctive contribution to IR scholarship.

With respect to each area of inquiry, we identify areas where

knowledge of international legal scholarship would enrich politicalscientists’ study of law, and we identify instances of “best practice” in which scholars from both professions have already

begun to integrate legal scholarship and categories of analysis with

the theoretical, epistemological and methodological contributionsof political science.

International relations scholars should thus understand this

paper as a “prospectus,” or as an introduction and invitation to useinternational law theory, in much the same way that a previous“prospectus” in a legal journal introduced IR theory tointernational law scholars more than two decades ago (Abbott

1989; in the same spirit, see Hafner-Burton, Victor and Lupu2012). Our aim in doing so is emphatically not that to suggest that

international legal scholarship is superior to work in political

science. Rather, we urge IR scholars to draw upon IL (and IL

scholars to draw upon IR) to promote research that self-consciously uses knowledge, insights and methodological tools

from both disciplines to develop a richer understanding of the

causes and consequences of international cooperation.

I. WHY HAVE IR SCHOLARS NOT UTILIZED IL SCHOLARSHIP?

At the outset, it is worth highlighting how curious it is thatinternational relations scholarship devotes so little attention to

international legal thought. After all, scholars in the two disciplines

tend to cover much the same intellectual territory, and internationallawyers are generally well acquainted with the dominant




conceptual approaches used in IR writings. Why are IR scholars,in general, not similarly familiar with leading conceptualizations of

the international legal order used by legal scholars?

While there are surely many contributing factors, we offer

two complementary perspectives below. The first is rooted in thesociology and politics of the two disciplines. The second is rooted

in different disciplinary approaches to the question of

epistemology. Together, they help explain why theinterdisciplinary terms of trade have, to date, been strikingly

asymmetrical.

A. The Fall and Rise of IL/IR

As the history of disciplinary relations has been ablydescribed by Anne-Marie Slaughter, Robert Keohane and others,1

we provide only a capsule review here. During the first half of the20th century, the disciplines of IL and IR overlapped substantially.

However, this era of disciplinary convergence came to an end with

the cataclysm of World War II. The war led many leading politicalscientists to reject the “idealism” associated with inter -war

scholarship (Carr 1939; Kennan 1951: 95). These so-called

“realists” argued that, in the absence of centralized enforcementmechanisms, it was folly to believe that international agreementscould meaningfully constrain state action (Morgenthau 1958). As

this realist approach gained dominance within political science, thestudy of international law was marginalized within the field,leading to a decades-long mutual estrangement between the two

disciplines.

Ironically, realism’s ascendance eventually triggered theintellectual developments that would lead each discipline to“rediscover” the other, albeit decades later. Within internationallaw, the realist critique powerfully challenged international law’sraison d’être. In response, international lawyers developed newapproaches designed to demonstrate international law’s practicalrelevance to international affairs. As Slaughter explains, these

efforts involved three central analytic moves: “First, all [theefforts] sought to relate law more closely to politics . . . . Second,

1 For fuller accounts of this history, see Slaughter 1993: Keohane 1997.




as part of this mission, all redefined the form of law, moving in

some measure from rule to process. Third, all reassessed the

primary functions of law. Whereas rules guide and constrain behavior, . . . processes perform a wider range of functions:

communication, reassurance, monitoring and routinization”(Slaughter 1993: 209).

Realist claims also triggered a series of developments in

political science. One important development came from the

subfield of international organizations with the rise of the study of

“international regimes,” understood as “sets of implicit or explicit principles, norms, rules and decision-making procedures around

which actor expectations converge in a given issue-area” (Krasner1982: 185). Roughly contemporaneously, Robert Keohane andothers began to draw on rational-choice premises to develop a

“functional” theory that understood regimes as a product of states’rational pursuit of their own self-interests (Keohane 1984). This

institutionalist approach argued that regimes enhance thelikelihood of inter-state cooperation by reducing transaction costs,

generating information, reducing uncertainty, and increasing

expectations of compliance.

Kratochwil and Ruggie’s (1986) focus on theintersubjective understandings associated with international

regimes sparked approaches that were more sociological and

contextual, and less materialistic and strategic. Eventually, aconstructivist school emerged, which viewed international law as

shaping understandings of interests, perceptions of legitimate

behavior, and the nature of justificatory discourse in international

affairs (Ruggie 1998; Wendt 1999; Brunnée and Toope 2000;Reus-Smit 2004). Moreover, by the early 1990s, liberalism had

emerged as a distinctive and coherent theory of international

relations (Moravcsik 1997). This approach focuses “on thedemands of individual social groups, and their relative power in

society, as a fundamental force driving state policy and, ultimately,

world order” (Moravcsik 2013).

Hence, by the turn of the century, a series of analyticdevelopments internal to each field created the conceptual toolsand intellectual space for scholars in each discipline to draw upon

insights associated with the other. At roughly the same time,

external events – in particular the end of the Cold War and the




apparent revitalization of many international legal norms andinstitutions and the proliferation of international courts – raised

numerous research questions of interest to scholars from both

fields, resulting in several high-visibility calls for interdisciplinaryIL/IR research.

Kenneth Abbott’s Modern International Relations Theory:

A Prospectus (1989) launched the current interdisciplinary

dialogue. Abbott argued that the ascendance of regime theory andrelated theories of international cooperation “offers a long-overdue

opportunity to re-integrate IL and IR” (p. 338). Abbott introducesinternational lawyers to key IR concepts, including collective

action problems and economic and political market failures. Heurges international lawyers to use these conceptual tools to become

“functionalists” rather than “formalists,” to better understandinternational cooperation. Four years later, Anne-Marie Slaughter

(Burley) echoed Abbott’s call in International Law and International Relations Theory: A Dual Agenda (1993), published

in the AMERICAN JOURNAL OF I NTERNATIONAL LAW, perhaps the

field’s preeminent journal. The article reviews in considerabledetail the post-war trajectory of the two disciplines summarized

above, and then invites international lawyers to apply

“institutionalist” and “liberal” IR approaches to international legal phenomena.

On the IR side, IL/IR arrived via a special symposium issue

of I NTERNATIONAL ORGANIZATION devoted to “ Legalization andWorld Politics” (Abbott et al. 2000). Unlike the seminal articles inlegal journals, the Legalization volume is not an explicit call forothers to engage in interdisciplinary work. However, the

prominence of the authors and journal clearly signaled to political

scientists that international legal phenomena were worthy ofsustained scholarly attention, and offered a broad, conceptual

framework for doing so.

These publications, however, along with virtually all of the

early IL/IR writings, employ a very particular form of

interdisciplinarity. For example, although the Prospectus claimsthat “IL and IR have much to contribute to each other,” it quickly becomes clear that the two disciplines’ respective contributions arequite distinct: “The opportunity to integrate IL and IR stems…from the analytical approaches, insights and techniques of modern

IR theory, which can readily be applied to a variety of legal norms




and institutions. . . . For its part, IL can offer modern IR scholars

an immense reservoir of information about legal rules and

institutions, the raw material for growth and application of thetheory” (339-340). Slaughter presents much the same argument.

Although the term “dual agenda” might suggest a two-way street inwhich scholars from both fields learn from each other, in fact both

elements of the “dual agenda” run in one direction – from IR to IL.

Slaughter’s intended audience is international lawyers, and thisgroup is advised to pursue both “the Institutionalist road tointerdisciplinary collaboration” and “the application of ‘Liberal’international relations theory to law within and among nations”(206-207).

The structure of the argument in the Legalization volume issubstantially similar. The volume’s organizers claim that their

framework is “able to unite perspectives developed by politicalscientists and international legal scholars and engage in a

genuinely collaborative venture” (387). Yet, once again, to be“collaborative” is not necessarily to contribute equally. Thevolume’s introduction notes that international law has “chronicledand categorized th[e] ‘move to law’ but has largely failed toevaluate or challenge it.” The authors claim that “approaches from political science should be more helpful in explaining the puzzle of

uneven legalization” (388) and the volume’s contributors provide political science-based explanations of international legalization.

In short, in each of these canonical statements – and, to a

large extent, in the subsequent literature – the intellectual terms of

trade are highly unequal, consisting primarily of the application of

the theories and methods of political science as a discipline to thestudy of international law as a subject . Indeed, it is striking that

the most recent, authoritative review of IL/IR scholarship is framed

as “a fresh survey of what political science has learned that may beof special interest to international lawyers” (Hafner -Burton, Victor

and Lupu 2012). Reading this literature, we might easily come

away with the view that international legal scholars offer only

factual knowledge of the substance, the “raw material,” ofinternational treaties and judicial decisions, but no distinctive

theoretical or methodological insights, which are seen as the

exclusive province of political science.




One goal of this paper, however, is to challenge this visionof interdisciplinarity. As we demonstrate below, international legal

scholars have produced a rich and sophisticated theoretical

literature. These writings have the potential to dramatically enrich political science scholarship on international law, in ways that go

far beyond the simple provision of factual information on the

content of the law.

B. Epistemological Tensions

Disciplinary politics does not provide a complete account

of why IL scholarship has had such limited influence on IRscholars. A more serious potential divide between political science

and law, already hinted at in the previous section, is

epistemological, relating to the aims of scholarship and the meanswhereby scholars establish the validity of their theories and learn

about the empirical world. Within international relations, and

political science more broadly, it has become common to arguethat the modal approach is positivist , in the scientific rather than

the legal sense of that term. While definitions of positivism have

also proliferated in political science, we would follow Hollis andSmith (1990: 12), who associate positivism with “the stress…onexperience (on observation and testing) as the only way to justify

claims to knowledge of the world, and hence on methods of

verification as the key to the meaning of scientific statements.”This embrace of positivism has not, of course, been universal,

challenged in recent years by “post- positivist” scholars, yet there isa more widespread epistemological consensus within the IR fieldon positivism, broadly construed, than on any substantive theory of

international politics. The field’s mainstream, including most ofthe key journals in the United States, accept the key tenets of

positivism.

By contrast with political science, traditional legal

scholarship appears both more diverse and less systematically self-

aware on the question of epistemology. In a provocative essay,

comparative law scholar Geoffrey Samuel (2009: 432) asks,“Should social scientists take law, as it has been constructed byhistory, seriously as a modern intellectual discipline?” Samuelgenerally argues that we should not do so, largely on

epistemological grounds. The social sciences, Samuel argues,generally pursue a broadly positivist “enquiry paradigm,” which




judges the validity of scientific claims against “external” sourcesof evidence, and such an approach has made some degree of

headway in the legal community in the form of legal realism andsocio-legal scholarship, particularly in the Anglo-Saxon world. By

contrast, he continues, much legal scholarship – particularly butnot only in countries with a civil-law tradition – adopts an

“authority” paradigm, in which the legal text is taken as

authoritative, and the study of law is explicitly “internal” to theselegal sources. By contrast with the “externalist” epistemology ofthe social sciences, Samuel argues, doctrinal, formalist, or “black -letter” legal approaches determine the validity of legal claims

internally, with respect to the law itself.

To his credit, Samuel does not present a monolithic view oflaw as a uniformly internalist discipline. “Nevertheless,” heargues, “if one looks at the current literature on bookshop and

library shelves, in both the civil law and common law countries, a

considerable proportion is devoted largely to descriptive work onvarious areas of the law” (Samuel 2009: 433), and this internalistscholarship, he continues, has little to offer to empirically oriented

social scientists.

To some extent, we agree with Samuel’s analysis of muchtraditional international legal scholarship, which does indeed

pursue different aims than positivist social science scholars.

Indeed, most mainstream legal scholarship has three primary aims.One is “rationalization,” or demonstrating that international law-

making and application occurs in a coherent and rational way.

Work in this vein includes summarizing case law, unveiling

common underlying elements in apparently disparate collections oflegal materials, harmonizing apparent doctrinal inconsistencies,

and the like. A second common aim consists of “justification,” orthe demonstration that legal doctrines or decisions are related tosome plausible conception of the good. Third, traditional legal

scholarship is often “prescriptive.” That is, most mainstream legalscholarship analyzes existing legal practice to identify its

shortcomings, and proposes doctrinal or institutional reformsdesigned to improve practice.

Hence, positing and testing causal claims is not a primary

aim of traditional legal scholarship. Even legal “realist” scholarswho view legal doctrine as rooted in larger social phenomena




rarely adopt a logical positivist epistemology common to socialscience, and virtually all contemporary legal theorists combine

descriptive empirical aims with normative critique and/or

advocacy. Thus, many of the legal approaches outlined in Part II below never attempt the kind of empirical testing of claims that are

the epistemological standard for much, but not all, of the IR field.

That said, contemporary legal scholarship is no longer

centrally preoccupied with doctrinal analysis. As noted above, therealist challenge prompted the rise within the legal profession of

process-based theories that focus on the legal system as a structure

of decision-making processes rather than as a set of rules.

Moreover, as explained more fully below, much modern legalscholarship incorporates, and extends, insights from a variety of

perspectives, including feminism, economics, sociology and otherfields.2 Thus, the traditional IR critique of IL thought as

excessively doctrinal and formalist is simply outdated andinaccurate. Indeed, as we shall attempt to show, international legal

theory is diverse, creative, and offers categories of analysis and

testable claims that are ripe for consideration, integration, and, potentially, empirical testing by political scientists. To that end,

we now turn to a brief summary of major traditions of international

legal thought.

II. A VERY BRIEF INTRODUCTION TO INTERNATIONAL LEGAL

THEORY AND METHODS

In the pages that follow, we offer an introduction to major

traditions of international legal thought. Of course, it is not possible to summarize all of the major theoretical approaches in

this short essay; instead we focus on a handful of the most

influential and enduring approaches. We begin with short

2 In addition to these theoretical frameworks, we would emphasize, a growing

body of empirical legal studies scholarship has demonstrated an impressive and

increasing methodological rigor over time, even according to the demanding and

contentious standards of inference put forward by positivist social scientists (seethe excellent review of empirical IL scholarship in Ginsburg and Shaffer 2012).

Our aim here, however, is not to redeem legal scholarship by appealing to the

relatively recent wave of empirical legal scholarship, much of which has been

undertaken by IL/IR scholars, but rather to suggest that traditional international

legal theorizing, despite its epistemological differences with mainstream

political science, nevertheless has a great deal to offer to the latter.




discussions of two of the oldest and most important approaches to

international law (and law generally), natural law and positivism.

We then briefly describe a handful of approaches that have become prominent in recent decades, including the New Haven School;

international legal process; rationalist approaches (including lawand economics and IL/IR); critical schools; and a trio of emerging

descriptive and normative approaches.

Before doing so, a few disclaimers are necessary. First, we

present only a partial account of international legal thinking. In

particular, we limit our focus to what might be consideredmainstream international legal scholarship published in leading

U.S. and European journals. Moreover, given space constraints,

we necessarily summarize large bodies of thought rather rapidlyand breathlessly, doubtless shearing them in the process of many

of their strengths and subtleties. Although we present the various

approaches in rough chronological order, we do not mean to

suggest that the various traditions represent a linear development,or even a sequence of different periods that neatly follow one

another. In fact, today the traditions outlined below co-exist today,

if sometimes uneasily, and many scholars draw insights fromseveral approaches. In this sense, the theoretical pluralism of IL

scholarship provides an echo of the similar pluralism in

contemporary IR theory.

A. Natural Law Theory

Although most ancient civilizations, including China, India,

Egypt and Assyria, produced rules of inter-state conduct, “modern”international law is generally considered to have emerged in theaftermath of the Thirty Years War, which ended with the 1648

Peace of Westphalia. The “classical” writers of this era – such as

Vitoria, Gentili, Grotius, and Pufendorf – devoted substantialenergies to conceptualizing and justifying the emerging “law ofnations.” In general, these writers argued that rules governingrelations between states were based on natural law, or fundamental

principles of right and wrong that can be derived from “rightreason;” in Grotius’s words, “the law of nature is a dictate of rightreason” (1625). For many of the early writers, these fundamental principles were derived from moral philosophy and theology, andin particular from early and medieval Christian thought.




Over time, natural law thinking fell into disfavor. In part,this shift reflects a broader displacement of religion as a source of

authority. But in large part it reflects the abstract nature and

malleability of natural law principles. For example, Grotiusargued that freedom of the seas was a basic principle of natural

law; roughly contemporaneously, John Selden published a famous

natural law defense of the closed sea. Centuries later, natural law

would be invoked on both sides of debate over the legality ofslavery. Natural law’s indeterminacy proved its undoing: “thevagueness of the principles which naturalists deduced from their

premises and sources was found ultimately to lead to the downfall

of this method. It did not take statesmen and the naturalistsemployed by them long to reduce international law to an ideology

of raison d’etat . . .” (Schwartzenberger 1965).

Despite the general repudiation of natural law approaches,

elements of natural law reasoning remain relevant today. AsMurphy (2006) notes, many of international law’s mostfundamental norms – such as pacta sunt servanda (treaties must be

performed in good faith) and jus cogens norms such as the ban ongenocide or torture – seem to be grounded on something akin to

natural law principles. And many modern treaty provisions – such

as the UN Charter’s general prohibition on the use of force, and theGeneva Convention rules against the mistreatment of civilians – find roots in theological concepts that date from the natural law

era. Finally, a type of natural law thinking is sometimes invokedto fill gaps in the law or decide cases that rules do not seem toreach. As one commentator notes, “[l]ike a modern constitution,

the international legal order comprises not only principles and

rules, but also basic values which permeate its entire texture,capable of indicating the right direction when new answers have to

be sought for new problems” (Tomuschat 2001). Thus, even

contemporary international law contains various traces of its

natural law heritage.

B. Legal Positivism

Natural law approaches were eventually supplanted bylegal positivism, which holds that “international law is no more orless than the rules to which states have agreed through treaties,

custom, and perhaps other forms of consent” (Ratner and Slaughter1999: 293). Under this approach, states create international law




through their affirmative (or “positive”) acts, and internationallegal norms are binding upon states because states have consented

to those norms (Murphy 2006). The positivist view is wellcaptured in a passage from the Permanent Court of International

Justice’s decision in the Lotus case:

International law governs relations betweenindependent States. The rules of law binding upon

States therefore emanate from their own free will as

expressed in conventions or usages generally

accepted as expressing principles of law andestablished in order to regulate the relations

between these co-existing independent communities

or with a view to the achievement of common aims.Restrictions upon the independence of States cannot

therefore be presumed.

For positivists, then, international law is a system of rules

that sovereign and equal states develop to regulate interactionsamong themselves. Thus, unlike natural law discourse, positivist

analysis has little to do with philosophy or theology, but instead

largely consists of the elaboration, analysis and critique of

authoritative legal texts.

The positivist understanding suggests what we might callan “internal” approach to understanding law. In this

understanding, the careful and sustained study of legal text issufficient to provide an adequate understanding of law, and hencethere is little need for knowledge or skills from other disciplines,

such as the social sciences. The internalist perspective also implies

that “the very point of studying law is to further the enterprise ofdeciding cases and justifying legal doctrines . . . . [T]he goal is to

move the enterprise of law forward” (Balkin and Levinson 2006:

162). Thus, much positivist analysis offers recommendations or

prescriptions to judges, legislators, and other legal actors. This is particularly true in the international field, where it is broadly

understood that a principal task of “the invisible college of

international lawyers” is to advance “la conscience juridique” andto strengthen the role of international law in pursuit of its goals ofinternational peace and justice (Schachter 1977).




C. The Legal Realist Critique

While jurisprudential debates between natural law theorists

and positivists persist, many legal scholars, including mostinternational law scholars, have moved well beyond these

approaches. In part, the impetus for this movement came from aseries of critiques that so-called “legal realist” scholars launched

against the positivist focus on rules and legal text.3 Echoing a

charge originally made against natural law approaches, the legalrealists argued that positivist legal rules are often too indeterminate

to generate particular results in specific disputes; in Oliver

Wendell Holmes’s famous articulation, “General propositions donot decide concrete cases.” The legal realists argued that legalrules are rationally indeterminate, first, because they do not cover

all fact patterns, and obviously cannot determine judicial decisionsin areas they do not reach. Second, rules inevitably contain gaps

and lacunae. And third, many legal standards are sufficientlyambiguous or abstract (“act in a reasonable manner”) that theyadmit of various applications in any particular circumstance. Legal

realists also claimed that the law is causally or explanatorilyindeterminate; precisely because the law is rationally

indeterminate, legal reasoning cannot explain why courts decide

cases the way they do. As a result, realists claimed, it is necessaryto look beyond the law itself to explain judicial decisions. For

these, and related reasons, legal scholars began to shift from a

focus on law as rules to law as a series of decision-making procedures.

International law scholars developed two significant process-based approaches, the New Haven School and

international legal process. Although there are important

differences between these two approaches, both direct our attentionto the myriad processes and fora through which transnational

actors assert international legal claims. Both schools teach that,

through these iterative processes, international norms and claims oflegal authority are brought to bear on transnational actors’ behavior.

3 For an excellent history of the American legal realist movement, see Horwitz

1992; for an application to international law, see Nourse and Shaffer 2009.




D. The New Haven School

The New Haven school was founded by two Yale professors: Myres McDougal, a lawyer, and Harold Lasswell, a political scientist. It has since been elaborated and developed by a

number of prominent practitioners and scholars, including W.

Michael Reisman and Dame Rosalyn Higgins, a former judge onthe International Court of Justice. Yale Law School was the

intellectual home of legal realism, and the New Haven School

adopted core legal realist insights, including “its critical focus onthe interplay between rules and social process in the enunciation oflaw in authoritative form . . . into a comprehensive framework of

inquiry” (Falk 1995). Like their domestic realist counterparts, the

New Haven scholars intended to criticize positivist understandings,and the formalistic textual approaches associated with it. In its

place, this approach developed “a functional critique ofinternational law in terms of social ends . . . that shall conceive of

the legal order as a process and not as a condition” (Pound 1932).Moreover, the New Haven approach broke with positivism’s“internalist” sensibility by explicitly analyzing international lawusing tools from political science and other disciplines, and byexpressly locating international law within larger social and

political processes.

New Haven scholars thus focus less on rules than on

process; McDougal and Lasswell “consistently argued thatinternational law is not just a body of rules, but a process of

authoritative decisionmaking” (Koh 2007). Within thatdecisionmaking process, McDougal and Lasswell wrote, “our chiefinterest is in the legal process, by which we mean the making ofauthoritative and controlling decisions” (McDougal and Lasswell1959). Years later, Reisman would claim that international law is

a “process of communication” and argue that this communicationsmodel “liberates the inquirer from the . . . distorting model of positivism, which holds that law is made by the legislature.” For

Reisman, “any communication between elites and politically

relevant groups which shapes wide expectations about appropriatefuture behavior must be considered as functional lawmaking”(Reisman 1981).

For New Haven scholars, international law’s processeswere connected to a set of normative values, including respect,




power, enlightenment, well-being, wealth, skill, affection andrectitude. International rules and institutions could thus be

evaluated and criticized with respect to “the basic values of human

dignity or a free society,” in order to advance “a more peaceful,abundant, and just world – a world community of human dignity”(Chen 1989: 210). In this sense, the New Haven School, while

drawing insights from positive social sciences, retained a strong

and explicit set of normative commitments.

While the New Haven approach has been criticized for

insufficiently distinguishing law from politics, and for its

occasionally dense terminology, it continues to exert an important

influence on international legal scholars. A recent symposiumexplored whether there is a “new” New Haven School, and how

the original McDougal and Lasswell framework can be fruitfullyapplied to contemporary developments, such as the increasing role

of non-state actors (Dickinson 2006) and the emergingtransnational dialogue among various international and domestic

courts (Waters 2005; Ahdieh 2004).

E. International Legal Process

The New Haven School conceptualized international law as

part of larger social and political processes; at roughly the same

time a competing school emerged which also viewed internationallaw as process, but with a focus on the “international legal

process.” Pioneered by Harvard Law School Professor and formerActing State Department Legal Adviser Abram Chayes, along with

Thomas Ehrlich and Andreas Lowenfeld, the international legal process school sought to determine “[h]ow – and how far – do law,

lawyers, and legal institutions operate to affect the course of

international affairs? What is the legal process by which interestsare adjusted and decisions are reached on the international scene?”(Chayes, Erlich and Lowenfeld 1968: xi).

The intellectual roots of this approach can be found in a

branch of domestic legal process thinking associated with Henry

Hart and Albert Sachs, of Harvard, and Herbert Wechsler, ofColumbia Law School. This branch of legal process theory

focuses primary attention on who is, or ought to be, empowered to

render a given legal decision, and how that decision is, or ought to be, made (Amar 1989). The international legal process school

similarly focused on the allocation of decision-making authority




across different institutions. Chayes, for example, produced a

classic study of the roles international law played in U.S.

government decision-making processes during the Cuban MissileCrisis (Chayes 1974) while others produced similar works focused

on other international crises.

More broadly, the international legal process scholars produced empirically based materials that cut across international

law’s traditional doctrinal categories – arms control, international

business, international organizations, etc. – and illustrated

international law’s various roles in different dimensions ofinternational affairs. These works illustrate how “the legal process

allocates decisionmaking competence between national and

international decisionmakers, specifies particular regulatoryarrangements for particular subject matters, restrains and organizes

national and individual behavior, and interacts with the political,

economic, and cultural setting” (Koh 1997: 2619). As Chayes

(1974: 7) noted, the international legal process approachemphasizes that international law acts “[f]irst, as a constraint on

action; second, as the basis of justification or legitimation for

action; and third, as providing organizational structures, procedures, and forums” within which political and legal decisions

are made. Far from representing politically naïve, doctrinal

scholarship, such works studied how political actors both operate

within, and use, legal processes and institutions in pursuit of their political interests.

F. Critical Approaches

The critical “new stream” is yet another approach that builds upon legal realist insights. This approach seeks to uncover

and understand “the hidden ideologies, attitudes and structures ofinternational law, so as to expose contradictions or antinomies” oflegal doctrine (Murphy 2006:15). Early works in this vein were

strongly influenced by deconstruction and other linguistic and

literary theories. Thus, David Kennedy produced an important

work that focused on the “semiotics” of legal argument, andidentified certain “recurring rhetorical structures” or patterns

within which legal argumentation takes place, leading to a

“grammar” of legal argument (Kennedy 1987). Other contributionsin this school highlight fundamental and enduring contradictions




within the international legal system, such as its apparentlyinevitable oscillation between “apology” – defending and

justifying state action – and “utopia” – setting forth aspirational

norms for state conduct but lacking the institutional infrastructureto actualize these norms (Koskenniemi 2005).

These new stream works opened up space for other critical

approaches, such as feminism and third world approaches to

international law (TWAIL). Many feminist scholars examine howinternational legal norms and structures reflect male dominance in

the international system. Although these scholars are often

particularly interested in questions of women’s rights, they alsoseek to uncover and undermine deep structural elements ofinternational law that are insufficiently attentive to the rights and

interests of women (Charlesworth et al. 1991; Charlesworth andChinkin 2000). TWAIL brings a decidedly post-colonial

perspective into the scholarly dialogue. These scholars, oftenhailing from former colonial countries, highlight the ways in which

contemporary international law reflects the deep injustices

associated with the colonial system, and they often advance ideasfor addressing North-South imbalances (Matua 2000). Such

critical approaches, needless to say, share both interests and

intellectual approaches with critical constructivist, feminist andrace theories in IR, yet cross-fertilization between these bodies of

work has been minimal.

G. Rationalist Approaches

In various guises, the legal process approaches outlinedabove have been a dominant influence on post-war international

legal scholarship. However, during the past two decades, two

prominent rationalist strands have emerged. Since theseapproaches share much with dominant IR approaches, our

discussion of them is relatively brief. The first is “law and

economics.” As in its domestic variant, the international lawversion of law and economics (L&E) consists of the application of

economic theories and methodologies to legal issues. One

influential application of L&E argued that transactions ininternational relations are analogous to transactions in privatemarkets (Dunoff and Trachtman 1999). The assets traded in these

international “markets” are not the goods and services traded in private markets, but rather assets peculiar to states: components of




power and authority, including jurisdiction to prescribe (regulate),

jurisdiction to adjudicate (use domestic court proceedings) and

jurisdiction to enforce. International law can be understood asfocusing largely on the definition, exchange, and pooling of this

authority (id.). Although L&E approaches have not been nearly asinfluential in international law scholarship as they have been in

domestic legal scholarship, important L&E writings have applied

game theoretic insights and public choice theory to questions of

treaty law, customary international law, regulation of commonsareas such as the atmosphere, and regulatory jurisdiction

(Trachtman 2008; Goldsmith and Posner 2005).

The other rationalist strand has already been mentioned:

international law and international relations (IL/IR). Among otherdevelopments, this scholarship has highlighted questions regarding

compliance with international legal norms, the stability and

effectiveness of legal institutions, and the causal mechanisms

through which international influences (or fails to influence)international actors (Hafner-Burton, Victor and Lupu 2012; Dunoff

and Pollack 2013). As noted above, however, much of this

literature follows Abbott and Slaughter in applying the theory andmethods of IR to the study of IL, whereas our aim in this article is

to focus on the other direction of influence – namely what IL can

add to the study of IR – and so we retain our focus here on the

further development of international legal theory.

H. Newly Emerging Approaches

Within the past decade, legal scholars have developed three

new conceptual frameworks – global administrative law,international constitutionalism, and global legal pluralism – for

understanding and critiquing international law. The first approach,

global administrative law (GAL), argues that much modern globalgovernance takes the form of regulation and administration that

occurs outside of high-profile diplomatic conferences or treaty

negotiations and in less visible settings that constitute a “global

administrative space.” GAL describes these little-knowninternational, transnational and domestic processes, and urges that

they be reformed along lines that advance transparency,

consultation, participation, and reasoned decision-making(Kingsbury, Krisch and Stewart 2005).




GAL offers an intriguing challenge to conventional ways ofunderstanding the international legal system. Conventional

approaches rest on certain fundamental dichotomies – such as the

distinctions between international and domestic law, and between public and private governance – that GAL problematizes. GAL

scholars highlight the ways that different types of actors and

different layers of governance together “form a variegated ‘globaladministrative space’ that includes international institutions andtransnational networks, as well as domestic administrative bodies

that operate within international regimes or cause transboundary

regulatory effects” and that transcend the traditional distinctions between public and private, and national and international(Kingsbury 2009). Through their richly textured analysis of many

little-known international legal processes and their impressive

conceptualization of a diverse set of practices across a wide rangeof otherwise disparate areas of global governance, the GAL

scholars have already made important contributions to our

understanding of current governance regimes.

International constitutionalists present an alternativeapproach that urges the application of constitutional principles to

improve the effectiveness and fairness of the international legal

order (Peters 2009; Tomuschat 1997). Constitutionalistapproaches vary widely in the scope of their ambitions; the most

far-reaching of the constitutionalist visions attempt to set out a

fully justified global order (de Wet 2006). However, even in itsmore modest guises, the constitutionalist turn can be understood asan effort to give the largely unstructured and historically accidental

order of global governance a rational, justifiable shape (Dunoff and

Trachtman 2009a).

Within this rapidly growing literature several strands haveemerged. One is “functional constitutionalism” which focuses on“secondary rules” of international law, or rules that enable or

constrain the creation of international law (Dunoff and Trachtman2009b). A second, “normative” constitutionalist approach

emphasizes human rights and judicial review in international

institutions (Petersmann 2008), and more ambitious approachesthat call for a legalization of transnational politics (Held andKumm 2004), or set out visions of a global order governed by an

identifiable constitutional text (Fassbender 2009).




A third emerging conceptual approach to international law

is global legal pluralism. This approach is the intellectual heir to

earlier sociological and anthropological examinations of the legal pluralism that resulted from the interactions between official and

non-official law, often in colonial settings. In its more recentinternational law iterations, legal pluralism highlights the

simultaneous existence of numerous semi-autonomous global and

regional functional legal orders. Thus, pluralism recognizes the

coexistence of multiple official systems of law, all potentiallyapplicable to any particular international transaction, and the

dialogues among judicial and non-judicial actors within these

systems (Berman 2012).

Legal scholars have just begun to explore the relativemerits of these approaches (Dunoff 2010; Krisch 2010), and a

comparative analysis is beyond the scope of this paper. For current

purposes, it is sufficient to note that each of the emergent

approaches captures and subjects to sustained examination subjectsthat are largely ignored by political scientists, or examined from

very different perspectives.

I. Some Early Lessons of IL Theory

As suggested by the thumbnail presentations above,

contemporary international legal scholarship provides a rich arrayof theories, methods and approaches to international legal

phenomena. Indeed, so diverse is this scholarship that any effort

to derive lessons from across all of IL scholarship would beartificial, and in Part III of the paper, below, we identify value-

added insights for political scientists drawn from specific

theoretical traditions. Nevertheless, as prelude to that analysis, wecan identify five general observations or insights that emerge from

this broad-brush tour of the literature.

First, legal rules and norms are not simply instrumental, but

also normative. Law is normative insofar as it provides its

addressees with reasons for acting as directed. This normativeapproach to law stands in stark contrast to the much more

instrumental view of law found in much IR scholarship. Under

conventional, rationalist IR understandings, law containsguidelines for action; it tells its addressees what to do or what not




to do. The normative understanding also problematizes efforts tolink norms causally to changes in behavior. Law’s normativedimension means that law can “guide,” “inspire,” “justify,” or

“legitimate” behavior.” This is perhaps most obvious in Franck’sfamiliar discussion of law’s “compliance pull” (Franck 1990), but

the appeal to law’s normativity is a more general feature of

international legal scholarship. This perspective suggests one

important way that law influences outcomes, but it is exceedinglydifficult to measure or quantify the extent to which law “caused”certain behavior.

Second, legal rules and norms are often indeterminate – not

just in the ordinary sense that they are vague or abstract, but in themore specific sense that, even in the eyes of legal scholars and

practitioners, they are often sufficiently vague that they cannotdetermine definitively the legality of illegality of an action. This

feature of international law is hinted at in the framework of thelegalization volume, where precision serves as one of the three

primary dimensions of legalization, yet in practice much IR

scholarship treats international rules as relatively clear anddeterminate, and the determination of state compliance with those

rules as a fairly straightforward exercise. International legal

scholars, by contrast, understand that all law, including in particular international law, leaves considerable discretion to those

actors – including, but not limited to, international courts – who

interpret and apply international legal rules and norms to theconcrete fact patterns of state behavior.

Third, legal rules and norms are plural , in the sense thatmultiple legal norms, often emitting from multiple, overlapping

functional or regional regimes, can apply to a situation (and can, at

times, conflict). To be sure, political scientists have recognizedand theorized in sophisticated ways about this process of “regimecomplexity,” focusing in particular on the strategic behavior ofstates engaging in forum-shopping and regime-shifting in a contextof institutional proliferation. The legal literatures on “legalfragmentation,” “legal pluralism,” and “conflict of laws” overlap in

part with this political science literature, but focus more intensivelyon the implications of fragmentation for legal interpretation byinternational courts and other actors, which as we shall see have

responded to this challenge in different ways.




Fourth, understanding law as simply a set of rules and

norms – as political scientists overwhelmingly do – is insufficient,

and potentially misleading. Instead, in many contexts, law canmore profitably be theorized in terms of process. Law, in this

view, is not simply a set of rules with which states can choose tocomply or not to comply, but rather it involves a commitment to a

set of processes in which claims and counter-claims are put

forward, and their validity assessed, in the language of the law.

Law matters, in this view, not because it provides clear andunambiguous standards for state behavior, but because it channels

actors’ behavior and responses into specific legal and institutional

channels, such as international institutions and courts, which

delegitimate naked appeals to power and require states to argue

their case in law’s distinctive idiom.

Fifth and finally, international legal scholars do not , as

many political scientists may believe, ignore power , although they

can and do often conceive of power in ways that differsystematically from the perspectives of political scientists.

Scholars from the New Haven and International Legal Process

schools, for example, understand law as both a constraint and as aresource to be deployed in international power struggles, in which

materially powerful states like the US often take the lead in the

making and application of the law. Critical, Marxist and feminist

scholars also focus on power, emphasizing how the power of statesand/or dominant groups manifests itself in substantive treaty and

customary rules, in procedural mechanisms, and in institutional

designs that privilege the strong at the expense of the weak(Steinberg and Zasloff 2006).

We shall explore further below some of the specific ways

in which international legal scholarship can shed light on questions

that political scientists have hitherto studied without the benefit oflegal insights, or indeed not at all. But even the brief survey

presented here will serve to make the point that international legal

scholarship in all its diversity bears almost no resemblance to the

caricature often presented in political science writings of adiscipline that is doctrinal, formalist, and politically naïve about

the realities of international power politics. Indeed, we would go

further and suggest that it is political scientists who, without the benefit of international legal insights, risk falling into an unwitting




formalism that equates international law-making with the texts oftreaties, international legal interpretation with the formal

judgments of international courts, and the effects of international

law with the formal compliance of states with the rules of black-letter law. Ironically, insights from international legal scholarship

can help political scientists avoid falling into the formalist trap.

III. USING INTERNATIONAL LAW TO ENRICH INTERNATIONAL

R ELATIONS

Having introduced a broad range of international law

traditions and approaches, we now turn to the question posed by

the title of this paper: what can international relations learn frominternational law? In the pages that follow, we attempt to

demonstrate that insights from legal scholarship can be used to

advance and refine IR understandings in areas that are already ofgreat interest to political scientists. Just as importantly, legal

scholarship can reveal lacunae and blind spots in IR analyses, and

thus make the perhaps more significant contribution of identifying

to new areas of inquiry and novel research questions.

To illustrate these points, we provide specific examples of

how international legal thinking can advance IR understandings in

the areas of law-making, interpretation, and compliance and

effectiveness. Thus, for example, in the area of international law-making, we show that leading IR analyses of treaty design employ

variables that are far removed from the concerns of international

legal practice, and ignore important law-making processes, such ascustomary international law. In the area of legal interpretation, we

show that leading IR analyses take a relatively narrow view of

international judicial behavior, ignore the interpretative strategies

that courts use, and overlook the interpretative functions of non- judicial bodies. Finally, we turn to issues of compliance and

effectiveness, where we focus on a variety of domestic processes

through which international law is internalized (or not) into

national legal and political systems. In this context, we highlightlaw’s indeterminacy, and explore how bureaucratic actors, and

others, use this indeterminacy to advance their goals within

bureaucratic struggles, and we conclude this section with adiscussion of the many ways in which international law can

influence international politics “beyond compliance.”




In addition, across all three areas, we provide examples of

“best practice” that combine sophisticated IR analysis with a solid

working knowledge of legal processes, theories and concepts.

We emphasize that the examples below are intended to be

illustrative rather than exhaustive. Our intent is to show enough to

entice IR scholars to further explore how greater attention to legalconcepts, and international legal thought more generally, can

advance IR analysis of international law-making, interpretation,

and compliance and effectiveness.

A. International Law Making

To demonstrate how greater attention to legal analysis can

advance IR thinking, we will discuss, by way of example, therational design (RD) project. While we could have chosen any IRapproach, RD provides a good test because it is arguably the IR

approach that takes international law, and law-making, most

seriously, and has produced remarkable value-added to ourunderstanding of international treaty and institutional design

(Koremenos 2013; Koremenos and Betz 2013; Helfer 2013).

RD examines the dependent variable of institutional design

in light of the strategic structure of the problem states are trying to

solve via international treaty or institution. Rational design

conjectures possess considerable explanatory power; nonethelessrational design’s conceptualization of institutional design andtreaty architecture overlooks many of the most important aspectsof treaties, such as the role of remedies, which have attracted

significant attention in the legal literature.

However, IL insights can do more than simply refine and

extend IR analyses in new directions. IL scholarship can make themore important contribution of identifying new research questions

and novel areas of inquiry for political scientists interested in the

legalization of international relations. For example, IR scholarsinterested in the making of international law focus almost

exclusively on treaties. As a result, the IR literature virtuallyignores several other important forms of international lawmaking,

including customary international law, global administrative processes, and judicial precedent. However, as discussed below,

the legal literature has devoted substantial attention to these other




forms of lawmaking, and has generated important descriptive,conceptual and normative claims regarding aspects of international

lawmaking, such as the role of power, that should be of interest to

IR scholars.

Of course, as noted above, our goal is not simply torebalance the asymmetrical intellectual terms of trade between the

two disciplines. Rather we urge IR and IL scholars to learn from

each other for the purpose of advancing understandings of thecauses and consequences of international legalization. Thus, we

close this section with a discussion of a recent scholarship on

international lawmaking that fruitfully weaves theory and

knowledge from both disciplines to generate important newinsights.

1. Enriching Rational Design – Toward a Richer

Understanding of International Institutions

The RD project starts from the observation that

international institutions “are organized in radically differentways,” and attempts to ex plain this variation.4 RD focusesspecifically on several elements of institutional design, namely

membership, scope, centralization of tasks, control, and flexibility.

For current purposes, we examine “centralization,” which refers to

“a wide range of centralized activities,” including mechanisms “todisseminate information, to reduce bargaining and transaction

costs, and to enhance enforcement.”5 While centralization is

surely a critical element of treaty design, many lawyers wouldsuggest the rational design approach to centralization does not

exhaust the wide range of functions that can be centralized in

treaty bodies, and fails to account for the fact that the scope ofthese various “centralization” functions may vary independentlywithin any international agreement.

4 Institutions are defined as “explicit arrangements, negotiated amonginternational actors, that prescribe, proscribe and/or authorize behavior.”Koremenos et al, supra note x, at 762.5 Id. at 771.




To their credit, RD proponents readily concede that this

category is too broad.6 Thus, a subsequent RD paper begins to

disaggregate the various design features encompassed by“centralization” to focus specifically on the presence of dispute

resolution provisions in different types of treaties.7 But even toidentify the category of “dispute resolution provisions” as a featureof treaty design risks being substantially overbroad, as different

dispute mechanisms exhibit substantially different institutional

features, including whether the dispute settlement body’s jurisdiction is compulsory or not; whether its decision is legally

binding or not; which actors have standing to initiate disputes; and

the remedies available in cases of breach. As a result, the actual

design choices that states make when negotiating dispute clauses

are significantly more fine-grained than the dichotomous decisionof whether or not to include a dispute provision that RD highlights.

For current purposes, we highlight the issue of remedies – the relief that legal systems provide in response to violations ofsubstantive rights. As a conceptual matter, questions of rights and

remedies are inescapably intertwined; hence the legal truism that

that there is no right without a remedy (ubi jus ibi remedium).And, as a pragmatic matter, any party’s decision to invoke aninternational tribunal will turn, in large part, on what remedies it

would receive should it prevail. Hence, questions regarding

remedies are front and center whenever states design disputesettlement systems, and the use and effectiveness of any dispute

settlement body will turn, in large part, on the remedies available

following a finding of breach.

Given IR scholars’ interest in enforcement (Downs, Rockeand Barsoom 1996), and IL scholars’ sense that states generally

comply with international law (Henkin 1979), one might expect to

find a large IR literature on remedies, and a dearth of attentionfrom lawyers. But precisely the opposite is true; while virtually all

IR writings about international dispute settlement ignore the issue

of remedies, this topic has attracted substantial attention from

6 Id at 795.7 Barbara Koremenos, If Only Half of International Agreements Have Dispute

Resolution Provisions, Which Half Needs Explaining?, 36 J. LEG. STUD. 189

(2007).




international law scholars. In the paragraphs that follow, wedemonstrate that remedies regimes vary widely across different

legal regimes; that states devote substantial attention to questions

of remedies; and that international legal scholarship has produced both issue-specific and comprehensive analyses of remedies

regimes.

a) Variation in Remedies Regimes

Whenever a tribunal or other body hears a dispute, it must

decide not only the first order question of which side wins, but also

the second order question of what remedy to award the prevailing

party. As a matter of general international law, a state responsiblefor an internationally wrongful act is obliged to make “full

reparation for the injury caused.”8

Full reparation can take theform of “restitution, compensation, [and/or] satisfaction,” asappropriate to the circumstances.9 In addition to these generalnorms, the Vienna Convention on the Law of Treaties sets out

influential rules governing responses to treaty breaches, which

draw fine distinctions based on the impact of the breach and thenature of the underlying treaty.10

Notwithstanding these general norms, when negotiating

treaties, states are free to design the type and level of remedies, as

well as corresponding monitoring or adjudicatory mechanisms.11 And, in practice, states adopt widely divergent approaches to the

question of remedies, both within and across different regimes.

Consider, for example, the divergent remedies available in

two prominent human rights regimes. Although states creating theinter-American and European human rights systems presumably

faced similar cooperation problems, they created very different

remedies regimes. The Inter-American Court of Human Rightscan order “fair” monetary compensation for individuals who have

8 International Law Commission’s Articles on Responsibility of States for

Internationally Wrongful Acts, in Report of the International law Commissionon the Work of its Fifty-third Session, UN GAOR, 56 th Sess., Supp. No. 10, UN

Doc A/56/10 (2001).9 Id.10 VCLT, art. 60.11 The Articles on State Responsibility expressly recognize the ability of states

to create lex specialis for remedies. See art. 55.




suffered human rights violations. In addition, the court is

authorized to issue orders for the domestic trial and punishment of

human rights perpetrators and for changes in domestic law.12 Thetreaty creating the European Court of Human Rights provides that,

in the event of a breach of the European Convention, and if thedomestic law of the state concerned “allows only partial reparationto be made,” the Court has the power, if necessary, to “afford justsatisfaction to the injured par ty.”13 In contrast to the IACtHR, the

ECtHR is not authorized to grant other remedial orders that wouldlegally bind the offending state.

Different investment treaties provide for different remedies

in the event of breach. For example, the 2012 U.S. Model Bilateral

Investment Treaty explicitly authorizes tribunals to award certaintypes of interim protection, “monetary damages and any applicableinterest,” and/or “restitution of property.” The U.S. model treaty

explicitly disallows punitive damages.14 However, other

investment treaties permit compensation for moral damages.15 Yetother investment treaties are silent on remedies. For example, the

Energy Charter Treaty, which has been ratified by over 50

European states, the EC, and Euratom, and which is intended to protect foreign investments, does not address the remedies

available in the event of a breach.

Different international criminal courts similarly have very

different remedy schemes. The Rome Statute creating theInternational Criminal Court permits victims of international

crimes within the tribunal’s jurisdiction to claim reparation forwrongs suffered. In addition, the Statute provides for the creation

of a “Trust Fund” for the benefit of victims of crimes within theICC’s jurisdiction, and for the families of victims. In enacting

12 American Convention on Human Rights, opened for signature 22 November

1969, 1144 UNTS 123 (entered into force 18 July 1978), art 63(1).13 Convention for the Protection of Human Rights and Fundamental Freedoms ,

opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3

September 1953), art 41.14 2012 U.S. Model Bilateral Investment Treaty, available at

http://www.ustr.gov/sites/default/files/BIT%20text%20for%20ACIEP%20Meeti

ng.pdf15 See, e.g., Desert Line Projects v. Republic of Yemen, ICSID Case No.

ARB/05/17 (awarding $1,000,000 in “moral damages” in light of “malicious”nature of “physical duress exerted on executives of the Claimant”).




these provisions, states were plowing new ground, as similar provisions were not found in the instruments creating earlier

criminal tribunals, such as the ICTY and ICTR.

Finally, remedy regimes are rarely static. One prominent

example involves the laws of war. Until relatively recently, this body of law of war permitted “reprisals,” or violations of legalobligations to retaliate against another party that has violated its

own obligations. However, in the twentieth century, states beganto limit the right of reprisals. The 1929 Geneva Conventions

forbade reprisals against POWs, and the 1949 Geneva Conventions

extended this prohibition to treatment of civilians and the wounded

and sick. Additional Protocol I of 1977 extended this obligation tohistoric monuments, civilian objects and the natural environment.

Another regime that has seen considerable evolution in thetreatment of available remedies is the international trade system.

During the GATT era, decisions to impose remedies in response to breach required a consensus of GATT parties, including the

breaching state. Hence, while remedies were theoretically

available, they were unavailable in practice. When trading nations

created the WTO in 1995, they effectively granted a complainingstate the automatic power to impose trade sanctions on losing

parties that fail to comply with an adverse WTO dispute ruling.

Moreover, states decided that different levels of retaliation wereappropriate for different types of violations. In most instances,

prevailing parties can suspend trade concessions in an amountequal to the complainant’s level of injury from the violation;however, different rules apply in cases involving WTO-illegalsubsidies.16 This automatic retaliation power is subject to certain

safeguards, including WTO review of (1) the amount of retaliation;

(2) the appropriateness of the economic sector retaliated against;and (3) the threshold question of noncompliance itself, if this is

disputed.

In practice, this system has proved controversial. Many

states complain that, by awarding only prospective (and not

retrospective) damages, the WTO remedies regime created

16 For violations of the rules on prohibited subsidies, WTO parties provided for

“appropriate countermeasures.” For violations of WTO rules on actionablesubsidies, trading states agreed on yet a different standard, namely

“commensurate” countermeasures.




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 havesubmitted proposals that would permit “collective retaliation” byall 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 ofretaliation 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,” oreven 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 alogical 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 collectionmore tightly focused upon the design elements that states

themselves focus on.

b) International Legal Scholarship on RemediesGiven 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 toexplore this topic, they need not write on a blank slate; legal

scholars have devoted substantial energies to this topic.

17 See TN/DS/W/15, No. 6, and TN/DS/W/42, No IX (both submitted by the

African Group) as well as TN/DS/W/17 (LDC Group) 18 TN/DS/W/40 19 TN/DS/W/9 and TN/DS/W/33 20 See TN/DS/W/1, No II.D and subsequent legal text (EC).




A large literature addresses specific remedies regimes.21 Other legal writings address remedies from a more theoretical

perspective, including a literature that adopts (or critiques) a

conceptual framework originally developed for domestic law purposes by Calabresi and Melamed (C&M).22

C&M provided a simple and elegant way of

conceptualizing remedies that applied across various fields – contract law, tort law, property law, environmental law, criminallaw, the law of eminent domain – that had previously been

considered separately. Surveying a broad range of legal practice,

C&M argue that entitlements (i.e., legal rights) can be protected

under property, liability, or inalienability rules. Entitlements protected by property rules can only be transferred via “a

voluntary transaction in which the value of the entitlement isagr eed upon by the seller.” This modality requires littlecentralized intervention; once the initial entitlement is determined,the state does not attempt to determine its value. A liability rule,

in contrast, gives parties the ability to take or destroy an

entitlement upon the payment of an objectively determined value.Thus, a state can expropriate the property of a foreign investor, so

long as compensation is paid. Liability rules require a greater

amount of intervention than property rules insofar as a centralized body, such as a court, determines the value of an entitlement when

it has been transferred or destroyed. Inalienability rules do not

permit the transfer of entitlements, even as between willing buyersand sellers. Most domestic legal systems do not permit individualsto sell body parts, or to sell themselves into slavery, even if they

wanted to. These entitlements are immutable and nontransferable

– or, in C&M’s term, inalienable.23

21 For example, on the law of international responsibility, see, e.g., THE LAW OF

I NTERNATIONAL R ESPONSIBILITY (James Crawford, Alain Pellet, and Simon

Olleson, eds. 2010); for rules regarding treaty breach, see, e.g., SHABBTAI

R OSENNE, BREACH OF TREATY (1985).22

Guido Calabresi and A. Douglas Melamed, Property Rules, Liability Rules,and Inalienability: One View of the Cathedral , 85 HARV. L. R EV. 1089 (1972).23 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 neighbor’s tree fallson my house or the government wishes to take it by eminent domain, and by an

inalienability rule when I am drunk or incompetent.




C&M’s innovative conceptual framework did more than propose a novel taxonomy of legal entitlements. Their article also

proposed a taxonomy of normative considerations that judges andother actors might consider when deciding how best to protect any

particular entitlement. These considerations helped spark a largeand sophisticated literature debating the circumstances under

which one or another rule should be used, such as Richard Posner’sclaim that liability rules were more likely than property rules to

promote efficient outcomes when transaction costs were high.24

In recent years, scholars have applied C&M’s framework tothe international system. For example, Dunoff and Trachtman

noted the dominance of property-type rules in international law,

notwithstanding the frequent presence of high transaction costs.25 They suggested that a liability system, which requires extensive

institutionalization or tribunals for assessing damages, possesses

many of the characteristics of a public good, and that efforts to

construct the institutional machinery necessary to implementliability rules implicate a series of familiar collective action

problems.

Pauwelyn extended this analysis with an argument that

international entitlements generally are, and should be, protected by property rules. A recent U.S.-Mexico agreement regarding

waters of the Colorado River 26 provides a good example of the

way property rules can work in international settings. A 1944treaty between these parties addressed water allocation issues. But

the agreement did not satisfactorily resolve all outstanding issues,

and periodically each side has alleged that the other has violated

the agreement. In such cases, the parties can and do renegotiatethe allocation of water rights; the new agreement reportedly

allocates water quantities in cases of water surplus and drought.

For Pauwelyn, property rules like this are normatively desirable asthey maximize contractual freedom and require the least amount of

24 R ICHARD A. POSNER , THE ECONOMIC A NALYSIS OF LAW 29 (1972).25 Jeffrey L. Dunoff & Joel P. Trachtman, Economic Analysis of International

Law, 24 YALE J. I NT’L L. 1 (1999).26 Ian Lovett, U.S. and Mexico Sign a Deal on Sharing the Colorado River , NEW

YORK TIMES, Nov. 20, 2012, at A16.




collective intervention.27 Pauwelyn contrasts his position to whathe calls “European absolutism,” which favors hard inalienability

for all international legal norms, and “American voluntarism,”

which favors simple liability rules in virtually all circumstances.28

More recently, Posner and Sykes offered a competinganalysis that favors use of liability over property rules. Their

argument begins from the premise that compliance with

international law is justified only when doing so promoteswelfare.29 Under this “welfarist” approach, violations ofinternational law are not disfavored per se. Rather, breaches

should be permitted in several circumstances, including in

retaliation for noncompliance by other parties, and when “whencontingencies increase the cost of performance above the other

party’s valuation of performance,” i.e., so-called efficient breach.Posner and Sykes argue that in cases of efficient breach, a liability

rule should be used: “an ideal remedy is monetary reparations[equal to] expectation damages: the wrongdoing state simply

transfers and amount equal to the loss to the victim state measured

against the baseline of full performance.”30

In short, the issue of remedies is of immense practical andtheoretical interest – but remains underexplored in IR scholarship.

In contrast, IL scholars have devoted significant energies on

remedies in ways that can benefit IR analysis. First, IL writingsoffer granular details on the effects of different remedies, and

develop normative arguments in favor of one or another remedy in particular contexts. These normative arguments often suggest that

certain remedies regimes should be used in certain contexts; wethink these arguments can and should be subject to empirical

27 JOOST PAUWELYN, OPTIMAL PROTECTION OF I NTERNATIONAL LAW:

NAVIGATING BETWEEN EUROPEAN ABSOLUTISM AND AMERICAN VOLUNTARISM

(2008).28 That said, Pauwelyn acknowledges that property rules are not appropriate in

all settings, including where there are significant concerns over hold-outs and

free riders, or high transaction costs, and thus where a liability rules are more

appropriate; or where there are significant externalities, or nonmonetizablevalues are at stake, such as in jus cogens norms, and when inalienability rules

are appropriate. Id.29 Eric A. Posner & Alan O. Sykes , Efficient Breach of International Law:

Optimal Remedies, “Legalized Noncompliance,” and Related Issues, 110 MICH.

L. R EV. 243 (2011).30 Id at 264.




testing. Second, legal scholarship offers conceptual frameworks

that help to organize what might otherwise appear to be a

hopelessly complex set of practices into a relativelystraightforward typology. Third, the legal literature problematizes

RD approaches to institutional design, as remedies regimes do notcorrespond in any straightforward way to underlying problem

structures. Thus, liability rules are used to address collective

action/prisoner dilemmas in the trade context, externalities in

environmental contexts, and commitment problems in humanrights contexts. And treaty entitlements across numerous different

legal regimes are protected by property rules. Hence, the variation

in remedy regimes poses a puzzle that falls outside the extant IR

analysis of treaty design.

That said, it should be noted that international lawyers by

and large have not addressed many of the questions that would

come quite naturally to political scientists, such as the political

question of what states – or what kinds of states – might advocatefor one or another system of remedies. Hence, the politics, and the

political economy, of remedies remains a puzzle, which seems ripe

for analysis using political science as well as legal theories,including not only RD but also liberal or IPE theories that offer

accounts of variation in state preferences over institutional choices.

To be clear, we are not arguing that IR scholars should

ignore “centralization” or that studying the frequency with whichtreaties in different issue areas provide for dispute settlement is

somehow unimportant. We are, however, arguing that broad

categories such as “centralization” – or even the slighly more

precise “dispute settlement” – are at best a tentative first step inunderstanding treaty design. And it is also emphatically to say that

the actual design choices that states make are significantly more

fine-grained than the dependent variables identified in the IRliterature to date. Finally, it is to claim that legal analysis offers

broad frameworks that can be used to conceptualize and analyze

underexplored topics such as remedies. For example, legal

approaches to remedies provide a framework for coding variationsacross and within legal regimes, and for theorizing about the

different approaches states take to protecting legal entitlements.

We hasten to add that we emphasize remedies by way of

example as just one design element that is recognized as vitally




important by both states and legal scholars but has been largelyignored 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:

Ad hoc or permanent adjudication bodies? This is a truly

fundamental choice, which in theory is available to statesacross a wide range of cooperative endeavors. While

international lawyers have analyzed this issue, we are not

aware of any systematic effort to either theorize or

empirically explain the resulting range of choices.

Compulsory or non-compulsory jurisdiction? Internationaldispute bodies vary dramatically along this dimension, with

some tribunals, such as the WTO, possessing compulsory jurisdiction, while others, such as the ICJ, allow opt-outs or

opt-ins to compulsory jurisdiction. The Law of the SeaConvention offers yet another variant, requiring states to

accept the jurisdiction of some arbitrator or adjudicator, butoffering states a choice of four alternative fora. Once

again, this is a topic of enormous interest to lawyers, but

we know of no effort to explain, in rational design or other

terms, this range of design choices.

A right of appeal? The structure of most internationaldispute systems does not provide the option of appeal. And

yet several prominent dispute settlement systems – such asthe EU court system and the WTO Dispute Settlement

Body – contain an appellate mechanism, nominally to

ensure the consistent interpretation of laws by judicial

panels, chambers, and lower courts. Whether to have anappellate procedure has most recently been debated in the

investment context, where the absence of an appellate

process is said to contribute to inconsistency in the caselaw. We would think that IR scholars could contribute

substantially to explaining the variation we observe in thisdesign feature.

Provisional remedies? Provisional remedies refers to theability of courts to order interim relief prior to the final

disposition of a dispute. Many international tribunals,




including the ICJ, ECJ, ITLOS, ICSID tribunals, the East

African Court of Justice, and the African Court on Human

and Peoples’ Rights, are expressly authorized to issue“provisional measures,” or interim relief prior to issuing afinal judgment. But states have decided not to grant theauthority to issue provisional measures to a number of

other important tribunals, including the Permanent Court of

Arbitration, and the WTO dispute settlement system

(including the Appellate Body).

These are all dimensions of institutional design that both

states and lawyers recognize as important. States vigorouslynegotiate over these and related institutional features, and legal

scholars debate the normative costs and benefits of alternativesover each of these, and other, dimensions. All of these representonly a subset of real-world design choices, relevant to the design of

dispute settlement systems, and all of them merit further study,

both for their inherent importance and as a testing ground for an

expanded and enriched approach to institutional design. Finally,all of them highlight the ways in which increased attention to legal

scholarship would enable IR scholars to identify more accurately

and more precisely the topics that states actually bargain over andhence to analyze the design features that states truly care about.

2. New Questions, New Areas of Inquiry: Lawmaking

Beyond Treaties

While using IL to extend IR insights in new directions is

useful, IL scholarship can make a more substantial contribution to

IR by identifying new research questions and areas of inquiry for political scientists interested in the legalization of international

relations. In this sense, international legal thinking can be used

not only to support a deeper and broader understanding of familiar

IR claims, but also to identify and illuminate unexamined areas ofinternational cooperation, to generate fresh perspectives and to

spark new insights.For example, IR analyses of international law creation

focuses almost exclusively on treaties. However, from a legal

perspective, the focus on treaties provides a substantiallyincomplete account of contemporary methods of law-making,




which include a wide variety of non-treaty forms of lawmaking,31 notably including customary international law, as well as judicial

precedent,32 global administrative processes,33 and various non-

consensual lawmaking processes.34 The failure to address theseother important law-making processes necessarily leads IR

scholarship to present an incomplete, and therefore misleading,

picture of international law making, potentially undermining IR

efforts to understand lawmaking. International lawyers, incontrast, devote substantial attention to non-treaty lawmaking

processes. Some of these writings examine familiar IR questions,

but do so in new contexts; some elaborate and extend insights

found in IR scholarship; and some suggest new areas of research.

a) Customary International Law

For current purposes, we highlight customary international

law, which arises out of general and consistent state practices thatare followed out of a sense of legal obligation. Perhaps IR

scholars downplay custom in light of influential accounts

suggesting that custom typically reflects a coincidence of interestsor coordination, and is of limited use is solving cooperation

problems.35 But even these deeply skeptical accounts

acknowledge that “customary international law remains animportant component of international law,”36 and customary normscontinue to govern many foundational areas of international law,

including the rules concerning sovereign immunity, stateresponsibility, territorial sovereignty, and the ability of states toregulate extraterritorially. In each of these areas – as well as other

important areas of international relations – no multilateral treaty

exists, and the governing norms emerge out of state practice.

31 Daniel Bodansky, Prologue to a Theory of Non-Treaty Norms, in LOOKING TO

THE FUTURE: ESSAYS ON I NTERNATIONAL LAW 119 (M.H. Arsanjani, et al. eds,

2011).32 The role of courts in interpreting, elaborating and developing legal doctrine is

discussed in part 3 below.33

See, e.g., Benedict Kingsbury, Nico Krisch, and Richard Stewart, The Emergence of Global Administrative Law, 68 L. & CONTEM. PROB. 15 (2005).34 Laurence R. Helfer, Nonconsensual International Lawmaking , 2008 U. ILL. L.

R EV. 71.35 JACK L. GOLDSMITH & ERIC A. POSNER , THE LIMITS OF I NTERNATIONAL LAW

(2005).36 Id. at 21.




Moreover, even in issue areas where treaties exist, custom

continues to play an important role. For example, many treaties

explicitly or implicitly invoke customary norms, such as the manyinvestment treaties that use the customary standard for

expropriation and fair and equitable treatment. Finally, newlyemergent issues – ranging from Internet freedom to

nanotechnology to cyberwarfare – will often lack a governing

treaty for some period of time, particularly in light of the

increasing difficulty of reaching global consensus on newmultilateral treaties; in the interim, any relevant applicable rules of

international law are likely to be customary rules.

b) Custom and Topics of Interest to IR Scholars

IR scholars will find much of interest in the large IL

literature on custom. For example, IR scholars interested in the

law’s dynamic dimension and in studying change over time will

find much in the writings of scholars from the New Haven schooland other process-based theorists who foreground the dynamism

implicit in the making of customary international law:

International law is still largely a decentralized

process, in which much lawmaking (particularly forthe most innovative matters) is initiated by

unilateral claim, whether explicit or behavioral.

Claims to change . . . [any] part of the law, ignite a process of counterclaims, responses, replies, and

rejoinders until stable expectations of right behavior

emerge. Since every legal regime perforce benefits

some actors more than others, no sooner does a newnormative arrangement stabilize than it, too, comes

under stress from new claims for change, in an

ongoing bargaining process between sometimesrapidly shifting coalitions. Hence the ceaseless

dialectic of international law: Whether by

diplomatic communication or state behavior, one

state claims from others acquiescence in a new practice. Insofar as that new practice is accepted in




whole or in part, the practice becomes part of thelaw. . . . 37

The claim-and-response nature of customary internationallawmaking gives rise to an intriguing paradox: states that wish to

change a customary rule (as opposed to overriding it by treaty)should violate the rule, offer principled legal and policy

justifications for doing so, and hope that other states accept the

new practice. That is, “[n]ations forge new law by breakingexisting law, thereby leading the way for other nations to

follow.”38 While international lawyers debate the normative

impacts of processes that require lawbreaking for lawmaking, a

system of law that contains the seeds of its own violation surely provides a fascinating counterpoint to most political science

models of how legal systems evolve over time.Writings on custom also illustrate some of the ways that IL

scholars incorporate power into their analysis.39 For example, theconcept of power is integral to the New Haven School’sconception of international lawmaking; for this approach, law – including prominently customary international law – is a process

of authoritative decision-making grounded in effective power .According to one leading New Haven scholar, to understand

lawmaking, one should analyze power by examining “the ways inwhich resources (material and symbolic) are manipulated, or thestrategies used by different participants involve the management of

resources aimed at optimizing preferred outcomes. Strategicmodes are considered along a persuasive-coercive continuum.

37 W. Michael Reisman, Assessing Claims to Revise the Laws of War , 97 AM. J.

I NT’L L. 82 (2003).38 Jonathan I. Charney, The Persistent Objector Rule and the Development of

Customary International Law, 56 BRIT. Y.B. I NT’L L. 1, 21 (1985).39 Thus, these writings address the frequent claim that legal scholars undervalue

the role of power in international affairs: “[o]ne of the major distinctions between research in IR and international law has been that the former usually

starts with power, whereas most research on public international law, with

important exceptions, places its emphasis elsewhere.” Emilie M. Hafner-Burton,David G. Victor, and Yonatan Lupu, Political Science Research on

International Law: The State of the Field , 106 AM. J. I NT’L L. 47, 51 (2012). In

fact, however, virtually all of the leading schools of international legal thought

foreground the importance of power in international lawmaking processes.

Richard H. Steinberg and Jonathan M. Zasloff, Power and International Law,

100 AM. J. I NT’L L. 64 (2006).




They include diplomatic, propagandistic, economic, and military

techniques in varying ensembles” (Reisman 2007: 578). Of

particular interest here is the emphasis, not just on power as a setof capabilities, but also on the “strategies” and “techniques”whereby states employ different power resources in internationallegal fora – an approach which contemporary IR theory, with its

emphasis on correlational (and often statistical) analysis, has

largely lost.

More broadly, IR scholars who turn their attention to

customary international law will find large legal literatures thatexplore how custom operates as law, its legitimacy, whether it

serves efficiency or competing values, and its democratic

accountability. The most recent scholarly debate centers onwhether states can or should be able unilaterally to withdraw from

international custom40 – a question that should be of interest to IR

scholars given their focus on flexibility and escape mechanisms in

treaties.

c) From Custom to Treaty

As noted above, treaties and custom are two of the central

tools used to make contemporary international law, and substantialliteratures address each of these topics, as well as the choice

between them. But less attention has been paid to question of what

motivates states to shift between custom and treaty, and particularly when states seek to “codify” customary internationallaw. Codification, for these purposes, consists of the “formulationand reduction to a written instrument of rules of law that elaborate

established [legal] doctrines and precedents.”41 Particularly overthe last 100 years, states have undertaken a number of important

codification efforts. Among other efforts, the International Law

Commission has produced codifications of several foundationaldoctrinal areas of international law, including the law of treaties,42

40 Curtis A. Bradley & Mitu Gulati, Withdrawing from International Custom,

120 YALE L.J. 202, 208 (2010).41 Timothy Meyer, Codifying Custom, 160 U. PA. L. R EV. 1003 (2012).42 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S.

331.




diplomatic and consular immunities,43 and the law of the sea.44 More recently, efforts have been made to codify parts of

international criminal law in the Rome Statute creating the

International Criminal Court and elements of internationalinvestment law in negotiations at the OECD and the WTO.

The conventional wisdom among international lawyers is

that states codify custom to clarify the law and to promote

compliance with international legal norms. Given that customarynorms can often be vague or ambiguous, codification permits states

to specify with greater precision custom’s requirements. This precision, in turn, is thought to minimize costly disputes over the

law’s content and enhance international coordination. Codificationis also thought to promote compliance. Customary rules are

typically rules of conduct; such rules by themselves are not alwayssufficient to induce desirable levels of compliance. Treaties can

include not only rules of conduct but also a variety of mechanisms,such as reporting, monitoring, or dispute settlement provisions,

that can improve compliance. Moreover, codification can affect a

rule’s status as domestic law, as many domestic systemsdistinguish between treaty and customary norms.

In a recent paper, Timothy Meyer challenges this

conventional wisdom. Meyer argues that the “clarification thesis” – the claim that states codify customary law because it is to their joint benefit – “is limited by the realities of the way states behave

when making legal rules.”45 That is, states have little interest inincreasing aggregate welfare unless they are able “to increase theirindividual share of the benefits of cooperation.” Thus, Meyerargues, the clar ification thesis “cannot explain codification in areasin which there are sharp distributional consequences to clarifying

the law and when familiar bargaining problems prevent states fromcreating a legal regime that redistributes the benefits of

cooperation.” Similarly, compliance cannot fully explain manycodification efforts, as many of these initiatives lack mechanisms

43

Vienna Convention on Diplomatic Relations art. 47.2(b), Apr.18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 9544 Convention on the High Seas, Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S.

11. See also United Nations Convention on the Law of the Sea pmbl., Dec. 10,

1982, 1833 U.N.T.S. 397 (citing codification of the law of the sea as a main

purpose of the convention). 45 Meyer, supra note 41.




thought to induce compliance.46 Moreover, efforts to enhance

compliance face a threshold question of whether the joint costs of

creating compliance-inducing mechanisms outweigh the benefits.47 States most likely to be noncompliant have little interest in raising

the costs of noncompliance, and efforts to compensate them willencounter familiar transaction cost and hold-out problems.

So why might states engage in codification? Meyer notes

that custom is formed in a process of claim and response that is

largely unstructured by procedural rules. Claims are backed by

action, often in the context of specific disputes. Thus, custom isthe product of a series of uncoordinated actions that results in

states coming to believe, based on each other’s actions, that acustomary rule exists. Powerful states have disproportionateinfluence in this process, both because they are more likely to

prevail in individual disputes and because they are generally more

effective at formulating their claims in ways likely to impact

custom.48

Powerful states might seek codification to move the

customary rule in a direction favorable to their interests, or to “lock in” a rule and thus guard against unfavorable future changes tocustom (or an unfavorable shift in the balance of power). Butcodification can be attractive to less powerful states as well.

Weaker states can use procedural norms (such as voting rules) and

bargaining tactics (such as coalition building) available in treatysettings that are unavailable in the specific disputes that typically

generate customary norms. Thus, codification is understood as “a battleground on which international actors – principally, but not

exclusively, states – compete on the basis of their political and policy interests to define and interpret rules that will advantage

them in their interactions with other actors.”49 Meyer concludes

that codification is driven by distributional concerns, and not byefficiency claims.

46

For example, the Vienna Conventions on Diplomatic and Consular Relationscontain no mandatory dispute resolution procedures or enforcement or

monitoring obligations. Rather, each creates an optional protocol on disputes.47 See, e.g., Andrew Guzman, (arguing that enforcement mechanisms are often

negative sum, and hence rarely used in international law.48 Meyer, supra note x. at 1022; D’Amato at 96. 49 Id. at 1023-24.




We highlight Meyer’s analysis not because we agree withevery argument, but because it combines IR concerns over power,

distributional issues, and attention to bargaining dynamics; a deep

and nuanced understanding of the rich IL literature on the role andfunction of custom; a rich knowledge of the nuts and bolts of

international lawmaking; and enlightening discussions of

numerous codification efforts, ranging from the successful effort to

codify a ban on the slave trade to the unsuccessful efforts to codifyinternational investment rules. This combination of IR and IL

knowledge permits Meyer to develop a highly original thesis that

not only challenges conventional IL understandings, but also lends

itself to further refinement – perhaps including empirical testingover the environmental features that make codification efforts

more or less likely to succeed, or explorations of the distributional

implications of specific codification efforts. Moreover, Meyer’sconceptualization of codification as type of forum shopping (an

effort to shift lawmaking from one forum to another) and as

increasing the fragmentation of international law (by creatingincentives for groups of states to codify their preferred

interpretation of customary norms) contributes to the large IL and

IR literatures on both of these important topics.

B. Interpreting International Law

While law creation is a critical element of international law,

it is hardly exhausts international legal processes. Once enacted,legal texts do not announce their own meaning or applythemselves. Thus, legal interpretation and application lie at the

heart of every legal order. In domestic orders, legal interpretation

often takes place in courts, but until relatively recentlyinternational courts were not frequently utilized. However, in

recent years the number of international courts and cases have

multiplied considerably, and as a result international tribunals havemoved from the periphery to the center of many issues of

international law and policy.

In response, scholars from both IL and IR have devoted

substantial attention to international courts and tribunals.However, the research foci of the two disciplines have divergedconsiderably. When lawyers study international courts, they tend

to focus on the rules and methods of treaty interpretation, with

particular focus on the Vienna Convention on the Law of Treaties,




which provides that treaties “shall be interpreted in good faith inaccordance with the ordinary meaning to be given to the terms of

the treaty in their context and in the light of its object and purpose.” International legal scholars have debated the relative

weight to be given to factors such as the intent of the treaty’s parties; the significance of travaux préparatoires; the importance

of subsequent practice; whether the same interpretative approach is

appropriate for all treaties; and the legitimacy of functional or

teleological approaches to interpretation (Hollis 2012).

In contrast, IR scholarship in this area tends to foregroundquestions of institutional design and international judicial politics,

illuminating – albeit selectively – four significant questions or

themes: (1) the design of dispute settlement bodies; (2) judicial

behavior , with an emphasis on judicial independence; (3) the

behavior of litigants (both state and non-state); and (4) the dynamic

evolution of dispute settlement systems over time.

First, in keeping with the increasing focus on rationaldesign, a handful of IR scholars have sought systematically to

understand and explain the design of international dispute

settlement bodies. For example, Keohane, Moravcsik and

Slaughter (2000) provided an influential analytical frameworkwhich classified various international dispute settlement

mechanisms along three dimensions – access, independence, and

embeddedness – characterizing courts that were low in all threedimensions as “interstate” courts and those that were high as“transnational” courts. Such differences in design, they argued,largely determine how frequently and by whom courts were used,

whether those courts provide for the credible and neutraladjudication of disputes, and whether the resulting decisions would

have immediate effects in the legal orders of their member states.

Other recent work (Koremenos 2007, Koremenos and Betz 2013)goes further still, seeking to explain the conditions under which

states design particular types of dispute settlement bodies – although, as we have suggested above, this work can and should be

more fine-grained, particularly insofar as it engages with designfeatures highlighted by international legal scholars.

A large and well-developed second strand of IL/IR

scholarship has focused on explaining the nature, extent and

determinants of international judicial behavior and independence.




While a few legal studies had problematized and studied theindependence of specific international courts (e.g. Brown Weiss

1987), IL/IR scholarship has systematized such analysis, defining

judicial independence clearly and providing comprehensivetheoretical frameworks identifying a wide range of potential

control mechanisms available to states (see the review in Voeten

2013). Just as significantly, this research agenda has given rise to

a spate of qualitative and quantitative empirical work seeking toestablish, despite considerable methodological challenges, the

nature and sources of judicial independence in the ECJ (cf. Pollack

2003; Carubba, Gabel and Hankla 2008, 2012; Stone Sweet and

Brunell 1998, 2012a, b), the ECtHR (Voeten 2008), the ICJ(Posner and Figueiredo 2005), and the WTO Appellate Body

(Elsig and Pollack 2012), among others. Interestingly, Voeten

(2013) suggests that, in addition to studying judicial independenceas dependent variable, scholars increasingly ask whether judicial

independence as an independent variable may help to explain other

phenomena, including the effectiveness of international courts (c.f.Helfer and Slaughter 2005; Posner and Yoo 2005). This research

in turn raises the intriguing concept of optimal judicialization. In

an influential paper, Helfer (2002) asks whether international

human rights law has become “overlegalized,” prompting a backlash against such treaties by Caribbean nations, and similar

concerns have been raised in the trade context by Goldstein and

Martin (2000) and Dunoff (1999), each of whom has warned of the

potential over-rigidity of dispute settlement and limitations ofcourts in addressing highly politicized disputes. Voeten (2013)

concludes that identifying optimal levels of judicialization

represents one of the frontier subjects for future IL/IR research.

A third major contribution of IR scholarship has been to

problematize, theorize, and study empirically patterns of state

behavior as litigants in international dispute settlement. As Todd

Allee (2004: 3) notes, the “decision to sue” is an important andunder-studied question, of interest not only for its own sake but

because the cases that actually reach international courts constitute

a small – and potentially biased – subset of the universe of

international legal disputes. In one study of international territorialdisputes, Allee and Huth hypothesize that states are most likely to

refer international disputes to judicial settlement when the

domestic audience costs of making significant politicalconcessions are high. In such settings, they argue, international




judicial rulings can provide “political cover” for domesticallyunpopular decisions, and their analysis of nearly 1,500 territorial

disputes provides support for the claim that “state leaders opt forlegal dispute resolution when they are highly accountable to

domestic political opposition, as well as when the dispute is highlysalient to domestic audiences” (Allee and Huth 2006: 219; for a

similar argument applied to international trade disputes, see Davis

2012). Other work, particularly on state behavior in WTO dispute

settlement, points to other potential influences on state litigation behavior, including state power (Horn and Mavroidis 2007), actor

estimates of the probability of winning (Allee 2004), regime type

(Busch 2000), and previous litigation experience (Davis and

Bermeo 2009).

Fourth, and most tentatively, IR scholars have begun to

develop and test hypotheses on the conditions under which, and the

ways in which, international dispute settlement systems develop

dynamically over time. IL/IR scholars have suggested thattransnational dispute settlement systems, characterized by high

levels of access, independence and embeddedness, should show

greater dynamism over time, as individuals (not subject togovernmental gatekeeping) bring cases that are likely to be decided

independently and enforced through domestic legal systems,

creating a feedback loop of ever more developed law and ever-

growing case-loads (see also Helfer and Slaughter 1997; StoneSweet and Brunell 1998; Keohane, Moravcsik and Slaughter 2000;

Moravcsik 2013).

Despite these substantial contributions, this IR scholarship

arguably suffers from a systematic bias in favor of certain researchquestions and empirical subjects, while ignoring others that have

been studied far more extensively by international legal scholars.

Indeed, we would argue, international relations scholarship hasfocused almost exclusively on the behavior of international courts

and litigants, with a particular focus on outcomes of interstate

disputes, while neglecting questions of interpretation which have

long interested international lawyers and which we argue shouldinterest IR scholars as well.

More specifically, we focus here on just two questions

where we believe the IR literature is incomplete or lacking, and

where we believe that careful consideration of IL scholarship could




enrich future work. First, we suggest that the IR literature, whileexamining international judicial behavior, has neglected almost

entirely the question of legal interpretation, and we identify some

recent work that approaches questions of interpretation in waysthat take account of doctrinal concerns while also asking social-

scientific questions about patterns and causation. Second, we

argue that, rather ironically, IR scholarship of the past two decades

has suffered from an overemphasis on international courts, asopposed to other actors, including explicitly political actors,

engaged in the interpretation of international law, and we suggest

that political scientists could indeed enjoy a comparative advantage

in the study of other, non-court legal interpretation bodies. Let usconsider each of these, very briefly, in turn.

1. Judicial Behavior and Judicial Interpretation A significant limit of existing IR scholarship in this area is

its almost exclusive emphasis on judicial behavior and its relativeneglect of legal interpretation per se. With its increasingly

extensive use of quantitative methods to detect patterns of

international judicial decision-making as well as correlations

between judicial rulings and other factors, much of the existingliterature reduces judicial rulings to a single dimension, namely

whether a court ruled for or against any given state on a particular

issue. The results of these studies have been valuable,demonstrating the ability of at least certain courts to rule against

the interests of powerful states as well as identifying someimportant predictors of judicial behavior (Voeten 2013).

Yet in so doing most of the IR literature ignores otheraspects of judicial interpretation, including questions about the

principles used to guide interpretation, the formal or informal use

of precedent, the nature of legal arguments, etc. A notable

exception to this trend is Pauwelyn and Elsig’s (2013)interdisciplinary effort to conceptualize the dependent variable of

international judicial interpretation along five dimensions, and to

explain judicial choices with a model of what they call

interpretation space and interpretation incentives. We considerPauwelyn and Elsig’s analysis to be ground-breaking and to open

up an exciting interdisciplinary research agenda that draws on the

tools of both international law and international relations, so let usreview this paper, and its implications, very briefly.




To begin, Pauwelyn and Elsig suggest that existing

international tribunals make highly varied choices, not only in

terms of the winners and losers of individual decisions, but in theinterpretive strategies they employ to reach those decisions. For

the sake of tractability, they reduce these strategies to choicesalong five dimensions. First, they identify a “dominanthermeneutic” guiding judicial interpretation, which can focusalternately on the plain meaning of legal texts (text), the intent of

the original drafters of the text (intent), or the underlyingobjectives of the treaty (object). Judges in different courts (as well

as different judges on the same court, or in different cases) have

historically made different interpretive choices, with, for example,

ICJ judges reading international treaties with respect to the

ordinary meaning of the words contained therein, while other judicial bodies (for example, early GATT panels) have looked at

the travaux préparatoires for the intent of the framers, and stillothers (most notably the ECJ) have taken a teleological approach

seeking to advance the broad objectives of a treaty or organization.

Along a second dimension of “timing,” judges can interpretthe terms of an agreement in line with their meanings at the time ofdrafting, an “originalist” approach, or they can take an“evolutionary” approach that interprets terms in line with theircontemporary meaning.

Third, courts can vary in their degree of “activism,” takingeither a “work to rule” approach that interprets legal textsnarrowly, or a “gap-filling” approach in which courts feel free todevelop new legal principles to fill the gaps in what are often

vague and outdated international agreements.

Fourth, while international law contains no formal rule of

stare decisis, international courts can vary in their treatment of

precedent, either ignoring precedents and addressing each case

afresh on its own merits, or alternatively building and drawingupon legal precedents when deciding new cases.

Fifth and finally, courts vary in what the authors call“linkage” to other international legal regimes, in some casesinterpreting legal texts in a particular regime in “splendidisolation” from the rest of the legal order, while in other casescourts may be outward-looking, interpreting their constitutive




treaties with respect to general international law and to othertreaties in related issue-areas.

Pauwleyn and Elsig are careful not to claim that choicesalong these five dimensions are determinative of substantive

outcomes in any individual case; indeed, they concede that, “insome cases, a tribunal’s interpretative method may be little morethan an ex post justification or ‘façade’ for an outcome reached on

other grounds” (2013: 449). Nevertheless, they argue persuasively, a given court’s or even an individual judge’sinterpretive strategy can be as significant or even more significant

than the substantive outcome of any particular case, as for example

with respect to the European Court of Justice’s early decisionduring the 1960s to adopt a teleological, gap-filling approach to the

interpretation of the EEC Treaty (rather than, say, an originalist,work-to-rule approach), which in turn opened the door to decisions

creating the legal or constitutional principles of direct effect andsupremacy of European over national law. Similarly, the ECJ’sstrong tendency to rely on its own precedents, and its tendency

(reinforced in recent years) to treat the EU legal system as adistinctive legal order separate from other areas of public

international law, has clearly shaped the subsequent development

of the EU legal order. To be sure, interpretive strategies havevaried over time and across decisions in the ECJ and in other

courts, yet the authors argue that various courts demonstrate

“central tendencies” to adopt particular interpretive strategies. Justas importantly, Pauwelyn and Elsig treat such choices not only asdoctrinal or normative decisions to be critiqued, but also as

outcomes to be explained in social-science terms.

Pauwelyn and Elsig’s explanatory framework is complex,and a full explication of it is beyond the scope of this paper, but put simply the authors hypothesize that “interpretation choice is a

result of the interaction of two key variables: (a) the demand-side

interpretation space that is made available to a tribunal and (b) thesupply-side interpretation incentives, defined as intrinsic

motivations of a tribunal’s members when operating within this

space” (2013: 459). Briefly, they argue that the interpretation space open to a court is a function of the precision or imprecisionof the legal text in question (with less precise texts giving courts

greater leeway to make adventurous interpretive choices) and the

ease or difficulty of coordinated response by member-state




principals to court decisions (which are in turn a function of

principal-agent considerations such as the diversity of member-

state preferences and the control mechanisms created by them). Insome cases, they hypothesize, the interpretation space open to a

court may be constrained, e.g. by precise legal texts, a unifiedmembership and easy-to-use control mechanisms, while in other

cases courts may enjoy considerably greater latitude.

Where interpretation space is large, the court’s choices will be guided by interpretation incentives, which in turn relate to

institutional and normative factors. On the institutional side, threeinstitutional features – a tribunal’s lifespan (permanent or ad hoc),the composition of its constituency (whether non-state actors enjoy

standing), and the presence or absence institutional competitionfrom other courts – can make courts prone to adopt particular

interpretive strategies. Permanent courts, to take just one example,

are more likely to adopt a rule of precedent than ad hoc tribunals.

On the normative side, finally, the authors suggest that judicialchoices will be influenced by concerns about legitimacy, the

importance of a broader interpretative community surrounding the

court and its legal order, and the possible legal traditions such ascivil and common law. Pauwelyn and Elsig emphasize that their

approach is exploratory, and they simply illustrate the plausibility

of their framework with examples rather than conduct any

systematic test, but their approach brings together the lawyer’sattention to doctrine, discourse, and process with the political

scientist’s effort to explain broad patterns of and variations in

behavior, and we believe it opens up a major new research agendafor international relations scholars to study doctrinal questions

systematically using the tools of social science.

As an example of best practice in this area, consider the

small and very recent literature on the use of precedent ininternational courts. [Examples/best practice in the systematic

study of international legal interpretation: Lupu and Voeten (2011)

and Pelc (2012) on precedent in international courts and tribunals.]

2. Interpretation: By Whom?

Finally – and here is another irony, to sit alongside IR’sformalist approach to law as written treaties – internationalrelations scholars have thus far focused their analysis of

international legal interpretation almost exclusively on courts and




judges, effectively ignoring the large number of other quasi- judicial 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 thatinterpret 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-courtinternational legal interpretation bodies, e.g. environmental

implementation review and noncompliance systems and human

rights committees. IR scholars have begun to ignore the formerunder 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 complianceand 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 widespreadacceptance, and almost ritual incantation, of Louis Henkin’s (1979:

47) famous claim that “almost all nations observe almost all principles of international law and almost all of their obligationsalmost 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 the1990s. IR scholars similarly slighted the subject of legalcompliance 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




interests as well as to the shallowness of most international

agreements (Downs, Rocke and Barsoom 1996).

During the course of the 1990s, scholars from bothdisciplines finally put issues of compliance front and center,

resulting in the famous “management vs. enforcement debate,”which pitted a team of international legal scholars (Chayes andChayes 1993, 1995) against skeptical political scientists (Downs,

Rocke and Barsoom 1996). Abram and Antonia Chayes set forth a

“managerial” theory of compliance premised on the assumptionthat states have a propensity to comply with their legal obligations.They argued that most cases of noncompliance are inadvertent, and

result from ambiguous treaty language, low national capacity, or

unavoidable time lags between commitment and compliance. Themanagerial school argues that sanctions are less useful than non-

coercive managerial strategies in promoting compliance. Downs,

Rocke, and Barsoom, by contrast, argued that high levels of

compliance with treaty norms simply reveal the “shallowness” ofmany international agreements. They claimed that as regimes

deepen and the gains from cooperation grow, so too do the

incentives to defect. Thus, deeper agreements requirecorrespondingly harder enforcement mechanisms.

A common perception among political scientists is that the

management vs. enforcement debate was essentially “won” by the

enforcement side, which demonstrated the limited usefulness ofmanagement techniques in precisely those situations where

compliance was most problematic – as well as the naiveté of IL

scholars. As Alexander Thompson (2013: 508) argues, however,

the “debate” formulation of the literature creates a tendency “tooverlook the extent to which these arguments are complementary,”as well as the phased use of both management and enforcement

mechanisms in many areas of international law (cf. Talberg 2002).For this reason, the debate between the management and

enforcement schools, and the implication that one must choose

between the insights of legal and political science scholars, is a

false one.Building on these early studies, IL/IR scholars have

launched an intensive research program into the extent, the causal

mechanisms, and correlates of state compliance with international

law across a wide range of issue-areas. This literature, we have




argued elsewhere, has made three signal contributions: aconceptual contribution, clarifying the meaning of compliance and

its relation to other concepts such as enforcement and

effectiveness; a theoretical contribution, in which various authorshave identified numerous potential causal mechanisms that might

explain compliance with international law; and a methodological

contribution, in which scholars have attempted to both measure

and explain compliance with international law, both qualitativelyand quantitatively, while controlling for competing explanations

and in particular for the problem of endogeneity and selection

effects (Dunoff and Pollack 2013: 639). We consider each, very

briefly, in turn.

First, with respect to conceptual issues, Raustiala and

Slaughter (2001) did much to clear the intellectual underbrush bydistinguishing among a number of related and sometimes confused

concepts, including compliance, implementation, enforcement, andeffectiveness (c.f. von Stein 2013; and Martin 2013). The most

commonly used term in the literature, compliance, is typically

defined, as von Stein (2012) does, as “the degree to which state behavior conforms to what an agreement prescribes or

proscribes.”50 So defined, the question of compliance is

conceptually separable from that of implementation (defined interms of state efforts to administer policy directives) and

effectiveness (the extent to which a treaty solves the problem that

prompted its formation). Indeed, as a number of scholars havenow pointed out, states may comply perfectly with (shallow)international agreements without engaging in any form of

implementation, and without producing any effect with respect to

the aims of the agreements. Conversely, states may undertakesignificant efforts to implement deep and demanding international

agreements, resulting in effective efforts to address the stated

problem, but fall short of full compliance (cf. Raustiala and

Slaughter 2001; von Stein 2013; Martin 2013).

50 Von Stein also offers another important distinction, between first-order

compliance (adherence to rules) and second-order compliance (adherence to

rulings of international judicial bodies), which emerges as vital in Brewster’s(2013) analysis of the relationship between international dispute settlement and

state reputation.




Second, in theoretical terms, the primary contribution of

recent scholarship at the intersection of law and political science

has been to move beyond broad debates about management andenforcement to much more nuanced and fine-grained examinations

of the potential causal mechanisms whereby international law mayinduce compliance or effectiveness. Von Stein (2013) provides a

comprehensive review of these mechanisms, which she divides

into instrumentalist and normative categories. Instrumentalist

mechanisms comport largely with the assumptions and predictionsof rational choice theory, and include international inducements,

retaliation, reciprocity, reputation, and the strategic actions of

domestic actors and institutions. Normative mechanisms,

according to von Stein, are diverse but “united in the view that

compliance with international legal rules is not primarily motivated by states’ concerns about ex post costs”; examples here include

explanations emphasizing expertise and capacity-building, theimpact of law on norms and identity, and issues of legitimacy and

fairness (Stein 2013: 485).

Third and finally, IL/IR scholarship has produced a

dramatic increase in the number and sophistication of empiricalcompliance studies, in areas such as human rights law (Hathaway

2002, 2003; Goodman and Jinks 2003; Hafner-Burton 2005;

Simmons 2009), international criminal law (Kelley 2007), and

international humanitarian law (Valentino, Huth and Croco 2006;Morrow 2007). Many if not most of these studies are quantitative,

and the best of these works are sensitive to and attempt to control

for problems of endogeneity and selection effects, wherebyinternational treaties may act to screen states rather than to

constrain them (von Stein 2005, 2013; Simmons and Hopkins

2005; Koremenos and Betz 2013).

Despite these strengths of IR scholarship, this emergingliterature has by and large ignored the substantial insights of

mainstream international legal scholarship, and have in the process

adopted a conception of international law, and compliance with

that law, that is needlessly formalistic, paying too little attention tothe full range of domestic processes whereby international law is

or is not “internalized” into the domestic political and legalsystems, treating international law as more determinate than inmay be in practice, and ignoring potential effects of law other than




that of promoting (or failing to promote) compliance. Moreconcretely, we suggest, in keeping with the framework spelled out

above, that political science scholarship (a) could learn from legal

scholarship about the mechanisms whereby both governments anddomestic courts internalize international law, and (b) could also

learn from recent international legal scholarship about the full

range of effects of international law, only some of which may be

related to state compliance.

1. Causal Mechanisms and Internalization of International

Law

We have argued above that the central theoretical

contribution of the political science literature of the past decade

has been the specification of a wide range of instrumental and non-instrumental mechanisms that could lead states to comply with

international law, including most notably the prospect that states

may internalize the law. This emphasis on causal mechanisms,however, stands in strong tension to the primary methodological

contribution of the political science literature, what von Stein

(2013: 495) calls the quantification of compliance studies, whichexcels in establishing correlations among variables but not at

illuminating causal mechanisms.51 The solution to this mismatch,

obvious in principle if extraordinarily challenging in practice, is for

scholars to engage in multi-method research, combining large-nstudies of compliance among large numbers of states with in-depth

case study analysis allowing scholars to identify and trace complex

causal mechanisms in action. Simmons’ Mobilizing for Human

Rights (2009) represents the most successful such effort to date,

but more such work is needed to establish whether, and under what

conditions, the many hypothesized mechanisms for international

law compliance actually explain observed behavior, with particularemphasis on the reception of international law among national

governments on the one hand, and national courts on the other. In

51 In addition, although von Stein does not emphasize this point in her chapter,

the vast majority of quantitative compliance studies operationalize “internationallaw” in terms of state ratification of treaties, thereby ignoring both customaryinternational 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.




both cases, we argue, political scientists stand to learn a great deal

from little-read and in some cases long-forgotten legal scholarship.

We offer just two examples.

First, with respect to the reception of international law in

governments, we of course have several off-the-shelf IR theories,

including most notably constructivist hypotheses about persuasion,acculturation, and diffusion of global norms. Yet these accounts

often fail to distinguish between the impacts of legal and non-legal

norms (Finnemore 2000), and many of them take a large-n,

quantitative approach (citations to World Society literature,diffusion literature), failing to examine the micro-processes

whereby national government officials take international law “on board.” In this respect, we argue, political scientists could learn agreat deal from the international legal process school discussed in

Part I of this paper, and in particular from the classic of that genre,

Abram Chayes’ exploration of the role of international law in theCuban Missile Crisis. In our experience, Chayes’ long-out-of-print book is rarely read among either lawyers or political scientists

today, yet offers important insights and puts the lie to the notion of

international legal scholarship as doctrinal, formalist, or naïveregarding the real-world impact of international law. We therefore

take the liberty here of summarizing Chayes’ project, methods, andfindings, before exploring their implications for political science

scholarship.

Chayes selects the Cuban Missile Crisis for his study, in

part because he had been an active participant in the crisis as legal

advisor to the State Department, but primarily because the life-or-

death security aspect of the crisis constitutes a hard case for thosewho would claim an important causal role for international law.52

Chayes is clear that “a legal position was obviously not the soleingredient of effective action” for US officials in the crisis.53 However, in keeping with the aims of the broader ILP school,

Chayes notes,

52 “It is the harshest test of international law, perhaps an unfair test, to askwhether and how it affected the decisions and acts of men, who saw themselves

as grappling with issues of national survival.” Chayes 1974: 1. 53 Abram Chayes, Law and the Quarantine of Cuba, Foreign Affairs (April

1963).




The series of studies of which this is one addressesthe question “how” law enters the policy-making

process, not “how much”…. We are not asking for a

catalogue of the ways in which law might haveaffected the course of action chosen. We are asking

about the ways in which it did influence action. To

be included in the catalogue any particular “way”must, at least arguably, have been substantialamong the relevant elements and considerations that

went into the amalgam of decision. (Chayes 1974:

4)

By political science standards, Chayes’ text lacks a cleardiscussion of research design. Besides the selection of the Cuban

Missile Crisis as a hard case, explicit discussion of measurementissues, and/or controlling for competing explanations for the

observed outcomes, is lacking. Yet Chayes offers not just ariveting empirical account, but also a compelling set of theoretical

arguments about the nature of law and the nature of governmental

decision-making, both of which have methodological implicationsregarding the correct method whereby scholars might assess the

impact of the former on the latter. On both questions, Chayes

argued, IR scholarship was characterized by “transparent but pervasive misconceptions” (Chayes 1974: 101) which obscured

understanding of the real relationship between international law

and state behavior.With respect the nature of governmental decision-making,

Chayes is clear in his denunciation of the unitary rational-actormodel, “the tendency to think of government decisions as the

product of a single, rationally calculating brain.”

Discussion of the role of law in foreign-policy

decision is especially prone to this anthropomorphicfallacy. Both analyst and audience tend to see the

law as a rule or norm, typically a prohibition,

addressed to a man, or to a monolithic subject of

law. The decision-maker is visualized as a clientgetting advice from his lawyer about whether a

proposed course of action is “legal” or not. Therole of law in the decisional process is settled bywhether the decision-maker “followed” this advice – particularly if it was negative (Chayes 1974: xx).




By contrast with this view, Chayes, drawing on the bureaucratic

politics model of Graham Allison, argues that “decision-making is

a corporate process in which individual participants react todifferent constellations of personal, bureaucratic, and political

motives and constraints” (Chayes 1974: 101).

While this conception of state action will be familiar to any political scientist, Chayes’ conception of international law runs

sharply contrary to the caricature of the international lawyer as a

doctrinal, black-letter positivist, who believes in the clarity and

determinacy of law. Drawing primarily from legal realism, Chayesfirmly rejects what we might call the “law as rules” approach.Instead, Chayes presents a view of law, and especially

international law, as being inherently vague and often“indeterminate” as to the legality of any given action, leaving widelatitude for interpretation by courts, states, and other actors:

Most people, laymen and lawyers alike,

typically think of law as a prohibition, a thou-shalt-not. It is a set of rules proscribing certain

conduct… with penalties or sanctions attached toviolation. Whether from a desire to avoid the

sanction or otherwise, conduct is brought intocompliance with the applicable rule or norm. Non-

complying conduct is constrained.

A little reflection shows that this is only a partial, and on the whole distorting, view of thelegal system….

[E]ven if conduct violates a relatively

determinate legal standard, it does not necessarily

follow that the action was unaffected by the law.Do we believe that the behavior of a man travelling

65 miles an hour on a super-highway with a 60-mile

speed-limit was not constrained by law?

[I]n most cases [however] the applicable law

is by no means as clear as the speed-limit. In caseof any difficulty, it is not possible to say

categorically in advance whether the proposed

course of action is “lawful” or not. Partly this is because legal consequences, especially in the




common-law tradition, are very sensitive to nuancesof fact-setting and the concrete details of the

challenged activity. These do not emerge until the

action is taken. The relevant facts are, in a sense,defined by the action.

The indeterminacy of the law, however, runs

deeper…. In principle, under the conventions of the

American system, no lawyer or collection oflawyers can give a definitive opinion as to the

legality of conduct in advance. Only an entity,

usually a court, officially empowered for the

purpose and duly invoked in accordance with procedures by which it is authorized to act, can give

a conclusive answer to a question of legality…. In these circumstances, it may not be too

difficult to advise a client whose aim is to stay outof entanglement with the law at all costs. The legal

advice will be not to act. But in most cases the

objective of avoiding legal difficulties will not be

the primary one, nor should it be. Legal advicemust come to the client in the form of an assessment

of risks and probabilities, with the client, by and

large, making the choice of which he will bear…(Chayes 1974: 27).

If, in Chayes’ view, “law is not a set of fixed, self-defining

categories of permissible and prohibited conduct,” the same isespecially true of international law, “because of the diffuse modesof establishing and clarifying rules.” That is to say, because muchof international law is often vague, consisting of murky customary

international law norms or of vague treaty provisions that reflect

political disagreement – and because much of international law isnot adjudicated in court but is left to the multiple, competing

interpretations of states, international organizations, non-

governmental organizations and legal scholars – international law

cannot be thought of as a set of determinate rules, to which the behavior of states can be easily and unproblematically compared in

order to determine conclusively whether a given state is in

compliance.

And yet, Chayes pointedly notes, in a comment that could be applied to much contemporary political science scholarship,




“there are many who still consider that legal advice or criticism inthe international field consists of laying the norm invoked beside

the challenged decision and seeing whether the latter squares withthe former” (Chayes 1974: 101). In place of this view, Chayes

continues,

International law, in its normative sense, must beseen 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, theterms are open to a broad range of interpretation

and emphasis (Chayes 1974: 101).

This inherent indeterminacy of international law, finally, ishighlighted “when the conduct of the state is at issue,” because thestate – 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 norminvoked beside the challenged decision and seeing whether the

latter squares with the former,” but rather by examining thedecision-making process of the state with an eye to the ways inwhich 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 foraction; and (3) as “providing organizational structures, procedures,and forums,” including most significantly the Organization ofAmerican States (OAS) and secondarily (given the Soviet veto in

the Security Council) the United Nations (Chayes 1974: 7).




For current purposes, however, the primary interest ofChayes’ book is not his substantive findings about the Cuban

Missile Crisis, the story of which has in any event been clarified by

the subsequent release of archival materials, but rather the methodof investigation, the subtle conception of the interrelation of law

and politics, and the tentative but generalizable conclusions that

Chayes draws from his case study. Chayes himself identifies four

general findings.

The first is that the law is not self-activating. Legal rules

do not announce their scope of application. Rather, much depends

on the skill and knowledge of legal professionals, and on the

contingencies of their personal relationships with other bureaucratic actors. In Chayes’s words:

First, law is not self-activating. On the whole, itdoes not project itself into the deliberations on its

own motion. Someone must call the lawyers in….The impact of the legal presentation will depend on

how much time is available for careful and

considered development and how early and how

insistently it is put before the responsible operatingofficers. This in turn depends on factors that

condition all lawyer-client relations, public and

private. How do the legal offices fit into the particular bureaucratic structures involved? What

are the personal relations between the lawyer andhis immediate client?... (Chayes 1974: xx)

Second, it is a mistake to consider law as a determinate setof rules that compel certain outcomes. Rather, legal rules are often

indeterminate, meaning that it is invoked differently by actors

advocating for competing policy outcomes. As Chayes (1974:

102-103) writes:

. . . if legal precepts are not exogenous data,

dividing the universe into choices of the permissible

and impermissible, if legal analysis is always

indeterminate, then at best legal reasoning andanalysis will impact on alternatives in terms of more

or less, not yes or no. Law cannot determine

decision, and it is an essential point of this study

that we should not expect it to do so…. Thecorporate character of decision-making ensures that




these differentiating considerations will be pressed

home by the participants whose policy positions

they favor. The persuasive force of such argumentsand their final influence will depend on infinitely

complex moral, psychological, and interpersonal processes of group decision-making.

Quantification, as we have said, must always elude

us. But the position that the ultimate impact is de

minimus cannot be maintained.

Third, indeterminacy does not mean that law isunimportant. Rather, public acceptance of controversial policy

decisions requires a public legal justification of a government’sactions. In this context, “justification” consists of the defense andexplanation of an action in terms of international legal rules and

principles. Chayes argues that “ ‘mere’ justification carries greater practical importance for the success or failure of great decisions

than is commonly supposed by the analysts.” As Chayes explains,

. . . the requirement of justification suffuses the

basic process of choice. There is continuous

feedback between the knowledge that the

government will be called upon to justify its actionand the kind of action that can be chosen…. Someof the characteristics of law give it special

importance for public justification. Because thescope and variety of the audiences addressed, that

process must proceed in terms of more or less

universal and generalized criteria…. [In addition tomoral and ideological considerations,] legal principles are also regarded as quasi-universal or at

least generally accepted. They are thus well

adapted to the needs of public justification…. Lawthus becomes a prominent element in the

justification process. (Chayes 1974: xx)

In this context, Chayes is careful to emphasize that law’s

indeterminacy does not mean that all arguments are equally persuasive. Instead, solid legal analysis can “distinguish a persuasive from a specious rational, a responsible and serious

performance from a trivial one.” Law, in other words, may be

indeterminate, but it is not infinitely malleable. In this sense, the




requirement of legal justification can provide “an importantsubstantive check” on the legality of policy, and on the integrity ofdecision-making processes.

Finally, Chayes emphasizes the central ILP insight

regarding law’s role in allocating decision-making authorityamong various institutions:

[xx] decision must take account of the international

organizational setting against which the action is

projected. Since the organizational setting is in astrict sense the product of international law, this

amounts to identifying a major and continuing legal

influence on decision. International institutions,

moreover, are a focused and intensified arena of

public justification. They are peculiarly sensitive tothe legal elements of the position, because the

organizations themselves are dominated bylegalistic modes of procedure (Chayes 1974: 102-

104).

Our point in citing Chayes so extensively is not that he is

necessarily correct in his assessment of the role of internationallaw in US decision-making, either during the Cuban Missile Crisis

or otherwise.54 Indeed, it is worth noting that Chayes limited his

focus to the executive, remaining virtually silent on the role of

either Congress or the courts. And he confined his analysis to theUnited States, making no effort to consider how international law

might influence policy-making in other types of political systems.

Nevertheless, a careful reading of Chayes should put to rest

any preconceived notions of international lawyers as necessarilyholding naïve views about the nature of law or its influence on

state behavior. Chayes’ dual approach – disaggregating the state

and in particular the executive branch, and recognizing thatinternational law can act not so much as an unambiguous rule as

much as a process through which claims and counter-claims are

54 We acknowledge, in particular, the contrary views of Dean Acheson, who was

a member of the Executive Committee that advised President Kennedy during

the crisis, and who argued that “The power, position and prestige of the UnitedStates had been challenged by another state; and law does not deal with such

questions of ultimate power,” as well as those who challenged the legality of the

Kennedy Administration’s actions.




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, findechoes in some contemporary political science scholarship,

particularly in liberal studies like Simmons’ which examine hownot 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 variablein the “legalization” framewor k. Yet we are aware of nocontemporary 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, wearguably see a bias in favor of a few specific issue-areas, including

in particular human rights, and (with a few exceptions, such asMorrow 2007) away from the national security decisions that were

the focus of Chayes’ work.

Perhaps the closest thing to a successor to Chayes that wefind in contemporary scholarship is another legal scholar, JackGoldsmith, 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 LegalCounsel) 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 vagueinternational laws, and underlines also the key question – familiarto students of epistemic communities but largely ignored with

respect to law – of the relationship between legal advisors and their

political principals.




Also like Chayes, Goldsmith finds a significant role forlaw, both domestic and international, in constraining and shaping

the response of the federal government to the national security

threat posed by international terrorism. Indeed, Goldsmith’s book sserve as testimony to the changes in both domestic and

international law in the five decades since the Cuban Missile

Crisis. For, despite the many and ongoing legal debates of the

status of the Guantanamo Bay detention facility, the treatment ofdetainees, the use of wireless wiretapping and other personal data,

and the use of drones to target suspected terrorists around the

world, Goldsmith finds an “accountable presidency,” not to say a presidency “ensnared by law,” as a result of Congressional reformsin the 1980s (e.g., the War Powers Act, the Foreign Intelligence

Surveillance Act), the increasing activism of U.S. courts in

supervising the actions of the executive, and the subsequent fear of prosecution among national security officials (Goldsmith 2007,

2012). These prominent features of Goldsmith’s account arealmost entirely absent from Chayes’ account of the Cuban missilecrisis, and point to a dramatically changed legal landscape in

which international and national law clearly inform and constrain

presidential action in national security far more than they had in

the past.

Goldsmith’s extensive focus on the role of the courts inrestraining presidential action raises a final point for this section,

regarding the reception of international law in national courts moregenerally. Over the past two decades, IR scholars have of coursediscovered and studied international courts, yet if we are interested

in the internalization of and compliance with international law,

then the reception of international law by national courts is anatural topic of interest. Here, we find a very large and

sophisticated political science scholarship on one specific question,

the reception of European Union law among national courts in the

EU’s member states, where several generations of scholarship hasexamined the ambiguous relationship between the European Court

of Justice (ECJ) and national courts, which have served alternately

as allies of the ECJ, empowered by their special relationship and

their ability to engage in judicial review of legislative andexecutive action, and as sources of resistance to the impingement

of the EU on national legal and constitutional orders (Stone Sweet

2010). Outside the EU context, however, political science scholarshave been nearly silent on the question of international law in




domestic courts, a topic that has been left almost exclusively to

legal scholars.55

2. Against Compliance, or Beyond Compliance?

In an important and provocative paper, Lisa Martin flips

our thesis on its head and effectively argues that IR scholars have

paid too much attention to international legal scholars (Martin

2013: 606). In particular, Martin criticizes political scientists’ focus on compliance when trying to understand the effects of

international institutions and organizations on state behavior.

Martin argues that “compliance is a legal concept that is unusuallyill-suited to the central social-scientific pursuit: the identificationand measurement of causal effects” (Martin 2013: 591).

Martin illustrates her claim with a stylized example,

already alluded to above. Imagine that state A and B enter into an

environmental treaty limiting emissions of a pollutant to X tons peryear. Suppose that state A already has strong domestic

environmental laws that are more stringent than the norms set out

in the treaty. State A would be fully in compliance with the treaty, but the treaty would have no causal effect on A’s behavior.Suppose that state B had very lax domestic environmental laws. In

response to the treaty, state B might decrease emissions

substantially, although not enough to meet treaty requirements. Inthis case, state B would be criticized for not being in compliance

with the treaty – even though the treaty has triggered significant

behavioral changes. Extrapolating from similar examples, Martinclaims that the focus on compliance leads IR theorists into “errorsof both omission and commission – mistakenly attributing state

behavior to institutional participation, and underestimating theinfluence on states that are not ‘in compliance’” (Martin 2013:591-2). To remedy this problem, Martin urges that compliance be

“dropp[ed]. . . as a central concept in the study of in stitutionaleffects” (id. at 592)

55 Indeed, in a later iteration of this paper we propose to undertake a review of

the legal literature on the use of international law both in the U.S. Supreme

Court, which has been the subject of intense and systematic scrutiny by legal

scholars, and comparatively. See, respectively, Sloss, Ramsey and Dodge 2011,

and Nollkaemper et al. 2012.




Significantly, Martin’s argument is not limited simply tothe claim that political scientists should redirect their attention to

changes in state behavior. Rather, she views IR’s misplaced focus

on compliance rather than effectiveness more broadly as “acautionary tale about the risks associate with celebrating

interdisciplinarity without careful attention to the different

demands and purposes of various disciplines” (Martin 2013: 606).

While we have argued above that scholars should indeed becognizant of the differing aims of IL and IR scholarship, we

believe the moral of Martin’s story runs in precisely the oppositedirection. In fact, international legal scholars have long been

careful to disentangle the related, but hardly identical, concepts ofcompliance and effectiveness. Moreover, lawyers have developed

much richer conceptualizations of compliance, noting that thisterm is not exhausted by the notion of “behavior in conformitywith rules” and that law’s impact can be measured in many waysother than directly influencing state behavior. Thus, while

Martin’s review of the literature lead her to the conclusion thatattention to legal writings has led IR scholars astray, we think thatincreased attention to IL scholarship can enrich IR thinking about

both compliance and international law’s effectiveness.

A) Beyond Compliance as Conformity with Rules

Nearly two decades ago, legal scholar Benedict Kingsburyargued that “the concept of compliance with law does not have,and cannot have, any meaning except as a function of prior

theories of the nature and operation of the law to which it pertains.

‘Compliance’ is thus not a free-standing concept, but derivesmeaning … from theories [of law], so that different theories lead to

significantly different notions of what is meant by ‘compliance.’”56

Kingsbury’s insight provides an important clue into how ILwritings can deepen IR understandings of both compliance and

law.

In much IR scholarship, law is understood as a set of rules

or norms, and compliance is straightforwardly understood as behavior in conformity with those norms. However, as highlighted

56 Benedict Kingsbury, The Concept of Compliance as a Function of Competing

Conceptions of International Law, 19 MICH. J. I NT’L L. 346, 346 (1998).




in part II above, the centrality and significance of rules to law

varies enormously across the range of theoretical approaches that

characterize contemporary international legal scholarship. In particular, many modern conceptions of law foreground process,

and from these perspectives, viewing compliance as conformitywith rules is incomplete. Rather, compliance is more

comprehensively described in terms of iterative processes that

involve relevant international institutions, interested states, and

other actors.

We’ve described above how Chayes’s “international legal process” approach addresses compliance. Here, we highlight

Harold Koh’s competing “transnational legal process” approach.Drawing on examples from human rights, environment, armscontrol and other areas, Koh develops a theory of compliance that

envisions three distinct “phases,” which Koh labels interaction,interpretation, and internalization. As Koh explains, compliance

occurs when

One or more transnational actors provokes

an interaction (or series of interactions) with

another, which forces an interpretation or

enunciation of the global norm applicable to thesituation. By so doing, the moving party seeks not

simply to coerce the other party, but to internalize

the new interpretation of the international norm intothe other party’s internal normative system. Theaim is to ‘bind’ that other party to obey theinterpretation as part of its internal value set. Such

a transnational legal process is normative, dynamic,and constitutive. The transaction generates a legal

rule which will guide future transnational

interactions between the parties; future transactionswill further internalize those norms; and eventually,

repeated participation in the process will help to

reconstitute the interests and even the identities of

the participants in the process.57

57 Harold Hongju Koh, Why Do Nations Obey International Law?, 106 YALE L.

J.. 2599 (1997).




Koh argues that through this three step process, domesticdecision making “becomes ‘enmeshed’ with international legalnorms, as institutional arrangements for the making and

maintenance of an international commitment become entrenched indomestic legal and political processes. Domestic institutions adopt

symbolic structures, standard operating procedures, and other

internal mechanisms to maintain habitual compliance with the

internalized norms.”58 In this way, institutions developinstitutional memory and create precedents to advance, rather than

conflict with, the internalized international norms.

To be sure, Koh’s conceptualization of compliance may not be fully satisfactory. As Robert Keohane has pointed out, Koh’sempirical illustrations of this theory may evidence “selection

bias.”

59

Notably, Koh rarely attempts to justify or explain his caseselection, or to control for competing explanations of his data.

Moreover, his writings often highlight international law’s successstories, but these hardly constitute a representative sample, as

states do not always domesticate international legal norms, and

many efforts to use transnational legal process to produceinternalization are less than entirely successful. Perhaps more

importantly, Keohane argues that Koh has identified two different

causal pathways through which compliance occurs. One is through“exclusion from the club,” where failure to follow internationalnorms results in denial of the benefits of cooperation, and

potentially leads to conflicts with club members.

60

This process,which occurs at the international level, is primarily horizontal andis driven by state actors. The other causal pathway is triggered by

“transnational norm entrepreneurs” and involves pressure fromsocial groups and issue advocacy networks.61 This pathway is primarily domestic and has many “vertical” components. Keohanesuggests not only that Koh fails to adequately distinguish between

these two pathways, but also that the distinction is crucial because

the reasons “for success or failure are different across pathways,”

58 Id. at xxx.59 Robert Keohane, When Does International Law Come Home?, 35 HOUSTON

L. R EV. 699 (1999).60 Id at 702.61 Id. at 705.




and hence any strategies for enhancing compliance must identify

which pathway is of relevance.62

For current purposes, we are less interested in whether Kohis guilty of selection bias or has failed to disentangle multiple

causal pathways than in the implication of the underlying move

away from a focus on rules to an alternative conception of thenature and workings of international law. This move leads to an

alternative conception of compliance. Assuming, as critics suggest,

that this alternative understanding had led Koh to identify multiple

pathways that promote compliance, we take this as a potentialstrength of the theory that calls for further refinement and testing.

The larger point is that engaging with Koh’s work – as that of

other process-based theorists – highlights that the measure ofcompliance and identification of mechanisms that promote

compliance necessarily rest upon a prior conception of the nature

and workings of international law, and that international legal

theory has developed a rich palate of conceptions of internationallaw.

B) Beyond the Compliance/Effectiveness Distinction

Martin’s central claim is that IR scholarship mistakenlyfocuses on compliance, rather than the more relevant concept of

effectiveness. She argues that many IR writings conflate theconcepts of compliance and cooperation (see, e.g., Kelley 2007,

Morrow 2007), or focus on factors that promote compliance, but

that such information reveals little about the causal impact ofinternational agreements (Martin 2013: 593). As Martin notes,

however, “legal scholars seem to be more sensitive to thedistinction between compliance and institutional effects than most political scientists have been” (Martin 2013: 600). Indeed, legalscholars have long recognized the distinction between compliance

and effectiveness. In 2000, legal scholar Kal Raustialaforeshadowed Martin’s claims by noting that “the prevailing

analytical focus on compliance is often misplaced and evencounterproductive” as “compliance with . . . treaty commitments isin practice often inadvertent, coincidental, or an artifact of the legal

62 Id. at 709.




rule or standard chosen, the sheer fact of compliance with a givencommitment tells us little about the utility and impact of that

commitment.”63

Significantly, legal scholars not only note this distinction,

but have moved beyond it. For example, the American Society ofInternational Law’s 1997 Annual Meeting was devoted to“Implementation, Compliance and Effectiveness,” and theMichigan Journal of International Law ran a symposium on thistopic in 1998. At roughly the same time, Anne Marie Slaughter

and Kal Raustiala, Edith Brown Weiss, and Ibrahim Shihata

insisted on the importance of distinguishing among

implementation, compliance, enforcement and effectiveness.64 Harold Koh introduced a slightly different categorization, arguing

that congruence between behavior and norm can reflectcoincidence, conformity (actors follow the rule when it is

convenient, but without a sense of obligation to do so), compliance (actors follow the rule to obtain benefits or avoid costs), or

obedience (when actors internalize the norm into their internal

value system).

The legal literature provides a lively debate over which ofthese various phenomena should be the focus of scholarly

attention. For example, while Koh’s theory explicitly seeks tomove parties from compliance to obedience, other internationallawyers counter that obedience is too ambitious a goal, and

pursuing it may undermine legal efforts to shift behavior indesirable ways (Ratner 2013). Moreover, several branches of IL

scholarship have extensively explored the complex relationships between compliance and effectiveness. An early example of such

work is found in an extended debate between two leading trade law

63 Kal Raustiala, Compliance and Effectiveness in International Regulatory

Cooperation, 32 CASE W. R ES. J. I NT’L L. 391 (2000).64 Kal Raustiala & Anne Marie Slaughter, International Law, International

Relations and Compliance, in HANDBOOK OF I NTERNATIONAL R ELATIONS

(2002); Edith Brown Weiss, Understanding Compliance with International Environmental Agreements: The Baker’s Dozen Myths, 32 U. R ICH. L. R EV.

1555 (1999) (drawing, in part, from COMPLIANCE WITH I NTERNATIONAL

E NVIRONMENTAL AGREEMENTS (Edith B. Weiss & Harold K. Jacobson eds.,

1996)); Ibrahim F.I. Shihata, Implementation, Enforcement, and Compliance

with International Environmental Agreement s, 9 GEO. J. I NT’L E NV. L. 37

(1997).




scholars, John Jackson and Robert Hudec, over the impact of

greater legalization of the trade system on state compliance with

trade rules. Jackson long urged a shift to more certain rules andmore highly judicialized dispute processes, arguing that greater

legalization would increase compliance with WTO rules and hencethe effectiveness of the WTO system. In contrast, Hudec

highlighted the dangers of over-legalization, and warned that an

increased emphasis on compliance could spark a backlash that

could actually undermine the effectiveness of the trade regime.These themes were developed and extended in various directions

primarily, although not exclusively, by IL scholars writing about

trade (Dunoff 1999, Trachtman 1999, Davey 2000, Goldstein and

Martin, 2001). Other IL scholars, some influenced by IR, have

examined the relationships between compliance and effectivenessin other areas of international law, such as human rights, where

Helfer, and Cavallaro and Schaffer, have warned about the dangersof overlegalization,65 and environment, where Raustiala has

examined which compliance strategies are more likely to produce

effective outcomes.66 Thus, the legal literature has long moved beyond the central insight of Martin’s paper, namely thatcompliance levels reveal little about a rule’s causal impact, tovarious case studies that explore how compliance can enhance or

undermine effectiveness.

C) Beyond influencing state behavior

Finally, to the extent that IR studies of compliance focus on

whether state behavior is consistent with applicable legal norms,

this literature fails adequately to account for the diverse ways thatinternational law can impact behavior, and the various actors that

international law can impact. International lawyers have adopted

Louis Henkin’s advice to “think beyond the substantive rules oflaw to the function of law, the nature of its influence, the

65 Laurence R. Helfer, Overlegalizing Human Rights: International Relations

Theory and the Commonwealth Caribbean Backlash Against Human Rights

Regimes, 102 COL. L. R EV. 1832 (2002); James L. Cavallaro & Emily J.

Schaffer, Less as More: Rethinking Supranational Litigation of Economic and

Social Rights in the Americas, 56 HASTINGS L. J. 217 (2004)66 Raustiala, supra note x.




opportunities it offers, the limitations it imposes.”67 As a result ofthe richer conceptions of the nature and workings of law outlined

above, international lawyers have generated a broader

understanding of law’s effects than is commonly found in IRwritings. We’ve already noted that Chayes emphasized that, inaddition to acting as a constraint on action, international law serves

“as a basis of justification or legitimation for action” and that lawallocates decision making authority among different“organizational structures, procedures and forums” through whichdecisions are reached.

In a recent paper, international legal scholars Robert Howse

and Ruti Teitel enumerate some of international law’s effects beyond inducing states to conform their behavior to international

rules,

68

including: international legal norms can impact the

ways that policy makers and other elites understand

particular problems and conflicts, such as whetheran issue involves conflicting interests or claims of

right. For example, the recent debate over the

legality of targeted killings, and the release ofDepartment of Justice White Paper on the issue,

have overshadowed broader political and strategic

considerations that might inform debate over this

policy;

international legal norms may provide benchmarks for a wide range of private actions,

including by multinationals and other transnational

actors, even when the relevant norms are notformally addressed to private action or particular

private actors. Thus, when the EU adopts certain

international regulations for chemicals or food

additives, private producers in other jurisdictionsmay well change production processes so that they

can continue to access EU markets, even if the

producers’ home jurisdiction did not adopt these

chemical regulations. Similarly, multinational

67 LOUIS HENKIN, HOW NATIONS BEHAVE 4-5 (2d ed. 1979).68 Robert Howse & Ruti Teitel , Beyond Compliance: Rethinking Why

International Law Really Matters, 1 GLOBAL POL. 127 (2010).




banks, accounting firms, and other service providers

may adopt international standards, even if they are

not formally bound by these standards;

international legal norms may impact

domestic legal developments, even when the

international norms are not directly binding,including by influencing the interpretation of

domestic law. Thus, in a series of controversial

decisions, the United States Supreme Court

referenced international legal norms wheninterpreting analogous provisions of the U.S.

constitution.69 Moreover, U.S. courts routinely hold

that federal statutes should not be interpreted so asto conflict with the nation’s international legalobligations. The Second Circuit recently relied on

this principle in dismissing a claim that foreign

airlines had in violation of state antitrust law.70 Other states have used similar canons of

construction to interpret domestic statutes consistent

with the state’s international legal obligations.

international legal norms may influence

the outcomes of bargaining among public and/or private actors. Legal rules obviously change the

strategic environment in which states negotiatedisputes, and, as Coase taught, impact both thesubstantive and distributional consequences of any

agreements reached. Thus, international legal rules

will affect state behavior, even if the resulting

agreement is not entirely in compliance withapplicable legal norms. Much the same analysis

applies to bargains or transactions among private

parties.

69 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.70 In re Air Cargo Shipping Services Antitrust Litigation, 697 F.2d 154 (2d Cir.

2012).




In each instance, Howse and Teitel argue, international lawmatters in ways that impact a diverse range of actors, all of which

would be missed by a simple focus on compliance as the

correspondence of behavior and rules.

In short, Koh’s “transnational legal process” approach andChayes’s “international legal process” approach – as well as other

international legal theories -- offer alternative understandings of

the effects and effectiveness of law to those found in much IRscholarship. These claims may sound deceptively similar to those

Martin makes. However, these legal analyzes go much further

than Martin does. Rather than being against compliance, as Martin

is, these legal approaches urge us to move beyond compliance inour theorizing and empirical study of the effects of international

law. Contemporary legal theory suggests we can do so by focusingless on states’ behavioral compliance with often indeterminatelegal norms than on how legal processes shift disputes intoalternative processes and decision making fora. These legal

approaches also teach that international law’s effectiveness cannot be measured simply through compliance with rules, but throughtaking account of law’s multiple effects on a broad range oflegislative, executive, judicial, and private actors.

CONCLUSION

IL scholars have learned much from IR theory; theimportation of insights and methods from IR over the past twodecades has significantly advanced the discipline (Hafner-Burton,

Victor and Lupu 2012; Dunoff and Pollack 2013). To date,

however, the direction of intellectual influence between these twodisciplines has been largely in one direction, with legal scholars

absorbing lessons from IR but with political scientists largely

ignoring legal scholarship. IR scholarship has paid a price, we believe, for its overreliance on off-the-shelf theoretical concepts

from international relations and its neglect of the insights of

international relations scholarship, adopting in many cases an

impoverished and unwittingly formalist view of international lawand its role in international politics.

The burden of this paper has been to outline why it is time

for the intellectual influence to run in both directions. We believe

that IR scholars can learn much from IL theory and scholarship,




and that doing so can promote a variety of scholarly undertakings.

In terms of the making of international law, we have argued, IL

scholarship can enrich the application of IR-theoretical approacheslike rational design, as well as shedding light on neglected issues

such as customary law. In terms of interpretation, IR scholarship’sexisting focus on judicial behavior stands to be enriched by greater

attention to judges’ interpretive choices and strategies, and also by

a greater focus on the many other actors that engage in

international legal interpretation. In terms of compliance andeffectiveness, finally, we argue that legal scholarship promises a

richer view of the ways in which a frequently indeterminate

international law is internalized (or not) and influences (or does not

influence) state behavior, in ways that go beyond the simple

question of compliance or noncompliance.

We recognize that making this argument to a political

science audience is uphill work, as we are asking scholars to read

and engage with an unfamiliar and sometimes technicalscholarship, and one that was in most cases written toward

normative ends that are far from the positivist, explanatory aims of

most contemporary political science. We also recognize that inmaking our arguments we may be engaging in what statisticians

call type 1 or type 2 errors. We may, that is, be reporting false

positives, insofar as we identify a positive contribution in legal

scholarship whose value-added contribution may in fact appeartrivial to political scientists. Or we may be reporting false

negatives, in the sense that we fail to identify and report the most

promising value-added contributions of legal scholarship to thecommon aims of IL and IR scholarship. On both counts, we

welcome corrections and suggestions for improvement.




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