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WHAT CAN INTERNATIONAL RELATIONS LEARN

FROM INTERNATIONAL LAW?

Jeffrey L. Dunoff
Laura H. Carnell Professor of Law
Director, Institute for International Law & Public Policy
Temple University Beasley School of Law
1719 N. Broad Street
Philadelphia, PA 19122
E-mail: jeffrey.dunoff@temple.edu

Mark A. Pollack
Professor of Political Science and Jean Monnet Chair
Temple University
Department of Political Science
461 Gladfelter Hall
Philadelphia, PA 19122
United States of America
E-mail: mark.pollack@temple.edu

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 or
cite 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 by
those familiar with that literature. Part II provides a primer of international legal
theory for political scientists, and can be skimmed by those who know that
scholarship. 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

What Can International Relations Learn From International Law?

WHAT CAN INTERNATIONAL RELATIONS LEARN FROM


INTERNATIONAL LAW?
Jeffrey L. Dunoff*
Mark A. Pollack**
International Relations (IR) has long enriched itself by
drawing conceptual frameworks and theoretical insights from
cognate disciplines with one curious exception. IR scholars are
centrally concerned with the causes and consequences of
international cooperation and, increasingly, international law and
legalization.
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 insights
from 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 writings
involve 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 legal
theory 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 nave in devoting substantial
attention 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

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 scholarship
is seen as excessively formalist, and legal thought is often
condemned for paying undue attention to the language of legal
rules 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 the
theoretical complexities and the empirical realities of the
international legal order. For example, contemporary IR accounts
of international law-making are dominated by a rational design
approach 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 lawmaking 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 of
international courts, misleadingly overlooking the numerous other
sites where interpretation and application occurs, including
committees, councils, and other subsidiary treaty bodies. Such
studies 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 that
can 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 which
diverse 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 implicitly
that international law consists of a series of unambiguous legal
rules embedded in international agreements, and that international
laws effects are most relevantly measured in terms of state
behavior that is (or is not) consistent with the terms of these rules.

What Can International Relations Learn From International Law?

But this formalist view of international law fails to account for the
wide variety of ways in which law is indeterminate; the ways in
which various actors use that indeterminacy; and the diverse
mechanisms through which international law may influence both
states and non-state actors.
In short, while IR writings have made enormous
contributions to our understanding of international legal
phenomena, when viewed from a perspective informed by current
international legal thought, IR accounts of international lawmaking, interpretation, and compliance are notable for their
occasional unwitting formalism, which in turn produces a number
of significant and persistent blind spots. As a result, IR scholars
often present a skewed picture of IL, which necessarily produces a
partial and misleading understanding of law and its effects on
states and the international order. We believe that IR scholars can
remedy these defects by drawing upon the theoretical frameworks
and empirical analyses of their counterparts in law. Hence, the
purpose of this paper is to begin a process of enriching IR
understandings, by exploring what the discipline of international
relations can learn from the discipline of international law.
To do so, this essay proceeds in three parts. Part I explores
why IR scholars have typically not drawn on IL thinking. It begins
with a thumbnail history of the relationship between the
disciplines. As is well known, the two fields were once in close
dialogue, but became estranged during the post-War era.
Understanding what triggered this estrangement, and the nature of
the recent rapprochement, sets the stage for our discussion of how
IR scholars can benefit from engaging with traditional and new
thinking in international law. However, disciplinary politics does
not fully explain why IL writings have not been influential. Thus,
Part I also surveys the epistemological obstacles to the use of
international legal thought by political scientists, including laws
strong orientation toward normative and prescriptive scholarship.
Despite these differences, we believe that legal scholarship offers
IR scholars significant conceptual, empirical and normative
insights.
Part II begins to identify those insights by providing a brief
primer on leading approaches to international law, with particular
emphasis on the most influential theoretical approaches developed
in the past half-century. This primer is designed to be a user-

What Can International Relations Learn From International Law?

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 overly
formalistic 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 law
approaches 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 political
scientists 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 contributions
of political science.
International relations scholars should thus understand this
paper as a prospectus, or as an introduction and invitation to use
international law theory, in much the same way that a previous
prospectus in a legal journal introduced IR theory to
international law scholars more than two decades ago (Abbott
1989; in the same spirit, see Hafner-Burton, Victor and Lupu
2012). 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 selfconsciously 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 that
international 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 international
lawyers are generally well acquainted with the dominant

What Can International Relations Learn From International Law?

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 the
sociology and politics of the two disciplines. The second is rooted
in different disciplinary approaches to the question of
epistemology.
Together, they help explain why the
interdisciplinary 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 ably
described by Anne-Marie Slaughter, Robert Keohane and others,1
we provide only a capsule review here. During the first half of the
20th 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 political
scientists 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 enforcement
mechanisms, it was folly to believe that international agreements
could meaningfully constrain state action (Morgenthau 1958). As
this realist approach gained dominance within political science, the
study of international law was marginalized within the field,
leading to a decades-long mutual estrangement between the two
disciplines.
Ironically, realisms ascendance eventually triggered the
intellectual developments that would lead each discipline to
rediscover the other, albeit decades later. Within international
law, the realist critique powerfully challenged international laws
raison dtre. In response, international lawyers developed new
approaches designed to demonstrate international laws practical
relevance to international affairs. As Slaughter explains, these
efforts involved three central analytic moves: First, all [the
efforts] sought to relate law more closely to politics . . . . Second,

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

What Can International Relations Learn From International Law?

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 (Krasner
1982: 185). Roughly contemporaneously, Robert Keohane and
others 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 the
likelihood of inter-state cooperation by reducing transaction costs,
generating information, reducing uncertainty, and increasing
expectations of compliance.
Kratochwil and Ruggies (1986) focus on the
intersubjective understandings associated with international
regimes sparked approaches that were more sociological and
contextual, and less materialistic and strategic. Eventually, a
constructivist 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; Brunne 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 the
demands 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 analytic
developments internal to each field created the conceptual tools
and 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

What Can International Relations Learn From International Law?

apparent revitalization of many international legal norms and


institutions and the proliferation of international courts raised
numerous research questions of interest to scholars from both
fields, resulting in several high-visibility calls for interdisciplinary
IL/IR research.
Kenneth Abbotts Modern International Relations Theory:
A Prospectus (1989) launched the current interdisciplinary
dialogue. Abbott argued that the ascendance of regime theory and
related theories of international cooperation offers a long-overdue
opportunity to re-integrate IL and IR (p. 338). Abbott introduces
international lawyers to key IR concepts, including collective
action problems and economic and political market failures. He
urges international lawyers to use these conceptual tools to become
functionalists rather than formalists, to better understand
international cooperation. Four years later, Anne-Marie Slaughter
(Burley) echoed Abbotts call in International Law and
International Relations Theory: A Dual Agenda (1993), published
in the AMERICAN JOURNAL OF INTERNATIONAL LAW, perhaps the
fields preeminent journal. The article reviews in considerable
detail 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 INTERNATIONAL ORGANIZATION devoted to Legalization and
World Politics (Abbott et al. 2000). Unlike the seminal articles in
legal journals, the Legalization volume is not an explicit call for
others to engage in interdisciplinary work.
However, the
prominence of the authors and journal clearly signaled to political
scientists that international legal phenomena were worthy of
sustained 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 claims
that IL and IR have much to contribute to each other, it quickly
becomes clear that the two disciplines respective contributions are
quite 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

What Can International Relations Learn From International Law?

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 the
theory (339-340). Slaughter presents much the same argument.
Although the term dual agenda might suggest a two-way street in
which scholars from both fields learn from each other, in fact both
elements of the dual agenda run in one direction from IR to IL.
Slaughters intended audience is international lawyers, and this
group is advised to pursue both the Institutionalist road to
interdisciplinary 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 is
substantially similar. The volumes organizers claim that their
framework is able to unite perspectives developed by political
scientists and international legal scholars and engage in a
genuinely collaborative venture (387). Yet, once again, to be
collaborative is not necessarily to contribute equally. The
volumes introduction notes that international law has chronicled
and categorized th[e] move to law but has largely failed to
evaluate 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 volumes 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 the
study 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 be
of 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, of
international treaties and judicial decisions, but no distinctive
theoretical or methodological insights, which are seen as the
exclusive province of political science.

What Can International Relations Learn From International Law?

One goal of this paper, however, is to challenge this vision


of 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 IR
scholars. 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 means
whereby 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 argue
that 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 and
Smith (1990: 12), who associate positivism with the stresson
experience (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 is
a more widespread epistemological consensus within the IR field
on positivism, broadly construed, than on any substantive theory of
international politics. The fields mainstream, including most of
the 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 selfaware 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 by
history, seriously as a modern intellectual discipline? Samuel
generally argues that we should not do so, largely on
epistemological grounds. The social sciences, Samuel argues,
generally pursue a broadly positivist enquiry paradigm, which

10

What Can International Relations Learn From International Law?

judges the validity of scientific claims against external sources


of evidence, and such an approach has made some degree of
headway in the legal community in the form of legal realism and
socio-legal scholarship, particularly in the Anglo-Saxon world. By
contrast, he continues, much legal scholarship particularly but
not 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 these
legal sources. By contrast with the externalist epistemology of
the social sciences, Samuel argues, doctrinal, formalist, or blackletter 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 of
law as a uniformly internalist discipline. Nevertheless, he
argues, 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 on
various areas of the law (Samuel 2009: 433), and this internalist
scholarship, he continues, has little to offer to empirically oriented
social scientists.
To some extent, we agree with Samuels analysis of much
traditional 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 lawmaking 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 of
legal materials, harmonizing apparent doctrinal inconsistencies,
and the like. A second common aim consists of justification, or
the demonstration that legal doctrines or decisions are related to
some plausible conception of the good. Third, traditional legal
scholarship is often prescriptive. That is, most mainstream legal
scholarship analyzes existing legal practice to identify its
shortcomings, and proposes doctrinal or institutional reforms
designed to improve practice.
Hence, positing and testing causal claims is not a primary
aim of traditional legal scholarship. Even legal realist scholars
who view legal doctrine as rooted in larger social phenomena

What Can International Relations Learn From International Law?

11

rarely adopt a logical positivist epistemology common to social


science, 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, the
realist 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 legal
scholarship incorporates, and extends, insights from a variety of
perspectives, including feminism, economics, sociology and other
fields.2 Thus, the traditional IR critique of IL thought as
excessively doctrinal and formalist is simply outdated and
inaccurate. 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

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 (see
the 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.

12

What Can International Relations Learn From International Law?

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 law
and 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 considered
mainstream international legal scholarship published in leading
U.S. and European journals. Moreover, given space constraints,
we necessarily summarize large bodies of thought rather rapidly
and 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 from
several 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 the
aftermath 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 substantial
energies to conceptualizing and justifying the emerging law of
nations. In general, these writers argued that rules governing
relations between states were based on natural law, or fundamental
principles of right and wrong that can be derived from right
reason; in Grotiuss words, the law of nature is a dictate of right
reason (1625). For many of the early writers, these fundamental
principles were derived from moral philosophy and theology, and
in particular from early and medieval Christian thought.

What Can International Relations Learn From International Law?

13

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, Grotius
argued 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 of
slavery. Natural laws indeterminacy proved its undoing: the
vagueness 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 naturalists
employed by them long to reduce international law to an ideology
of raison detat . . . (Schwartzenberger 1965).
Despite the general repudiation of natural law approaches,
elements of natural law reasoning remain relevant today. As
Murphy (2006) notes, many of international laws most
fundamental norms such as pacta sunt servanda (treaties must be
performed in good faith) and jus cogens norms such as the ban on
genocide or torture seem to be grounded on something akin to
natural law principles. And many modern treaty provisions such
as the UN Charters general prohibition on the use of force, and the
Geneva 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 invoked
to fill gaps in the law or decide cases that rules do not seem to
reach. 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 by


legal positivism, which holds that international law is no more or
less than the rules to which states have agreed through treaties,
custom, and perhaps other forms of consent (Ratner and Slaughter
1999: 293). Under this approach, states create international law

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What Can International Relations Learn From International Law?

through their affirmative (or positive) acts, and international


legal norms are binding upon states because states have consented
to those norms (Murphy 2006). The positivist view is well
captured in a passage from the Permanent Court of International
Justices decision in the Lotus case:
International law governs relations between
independent 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 and
established 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 interactions
among 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 call
an internal approach to understanding law.
In this
understanding, the careful and sustained study of legal text is
sufficient to provide an adequate understanding of law, and hence
there 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 of
deciding 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 and
to strengthen the role of international law in pursuit of its goals of
international peace and justice (Schachter 1977).

What Can International Relations Learn From International Law?

C.

15

The Legal Realist Critique

While jurisprudential debates between natural law theorists


and positivists persist, many legal scholars, including most
international law scholars, have moved well beyond these
approaches. In part, the impetus for this movement came from a
series 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 legal
realists argued that positivist legal rules are often too indeterminate
to generate particular results in specific disputes; in Oliver
Wendell Holmess famous articulation, General propositions do
not decide concrete cases. The legal realists argued that legal
rules are rationally indeterminate, first, because they do not cover
all fact patterns, and obviously cannot determine judicial decisions
in areas they do not reach. Second, rules inevitably contain gaps
and lacunae. And third, many legal standards are sufficiently
ambiguous or abstract (act in a reasonable manner) that they
admit of various applications in any particular circumstance. Legal
realists also claimed that the law is causally or explanatorily
indeterminate; 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 necessary
to 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 attention
to 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 of
legal authority are brought to bear on transnational actors
behavior.

For an excellent history of the American legal realist movement, see Horwitz
1992; for an application to international law, see Nourse and Shaffer 2009.

16

What Can International Relations Learn From International Law?

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 on
the 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 on
the interplay between rules and social process in the enunciation of
law 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 of
international 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 positivisms
internalist sensibility by explicitly analyzing international law
using tools from political science and other disciplines, and by
expressly 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 that
international law is not just a body of rules, but a process of
authoritative decisionmaking (Koh 2007).
Within that
decisionmaking process, McDougal and Lasswell wrote, our chief
interest is in the legal process, by which we mean the making of
authoritative and controlling decisions (McDougal and Lasswell
1959). Years later, Reisman would claim that international law is
a process of communication and argue that this communications
model 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 appropriate
future behavior must be considered as functional lawmaking
(Reisman 1981).
For New Haven scholars, international laws processes
were connected to a set of normative values, including respect,

What Can International Relations Learn From International Law?

17

power, enlightenment, well-being, wealth, skill, affection and


rectitude. 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 symposium
explored whether there is a new New Haven School, and how
the original McDougal and Lasswell framework can be fruitfully
applied to contemporary developments, such as the increasing role
of non-state actors (Dickinson 2006) and the emerging
transnational 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 international
law as process, but with a focus on the international legal
process. Pioneered by Harvard Law School Professor and former
Acting 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 interests
are 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, of
Columbia 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

18

What Can International Relations Learn From International Law?

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 Missile
Crisis (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
laws traditional doctrinal categories arms control, international
business, international organizations, etc. and illustrated
international laws various roles in different dimensions of
international affairs. These works illustrate how the legal process
allocates decisionmaking competence between national and
international decisionmakers, specifies particular regulatory
arrangements 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 approach
emphasizes 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 nave, 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 of
international law, so as to expose contradictions or antinomies of
legal 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, and
identified certain recurring rhetorical structures or patterns
within which legal argumentation takes place, leading to a
grammar of legal argument (Kennedy 1987). Other contributions
in this school highlight fundamental and enduring contradictions

What Can International Relations Learn From International Law?

19

within the international legal system, such as its apparently


inevitable oscillation between apology defending and
justifying state action and utopia setting forth aspirational
norms for state conduct but lacking the institutional infrastructure
to 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 how
international legal norms and structures reflect male dominance in
the international system. Although these scholars are often
particularly interested in questions of womens rights, they also
seek to uncover and undermine deep structural elements of
international law that are insufficiently attentive to the rights and
interests of women (Charlesworth et al. 1991; Charlesworth and
Chinkin 2000).
TWAIL brings a decidedly post-colonial
perspective into the scholarly dialogue. These scholars, often
hailing 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 ideas
for addressing North-South imbalances (Matua 2000). Such
critical approaches, needless to say, share both interests and
intellectual approaches with critical constructivist, feminist and
race theories in IR, yet cross-fertilization between these bodies of
work has been minimal.
G.

Rationalist Approaches

In various guises, the legal process approaches outlined


above have been a dominant influence on post-war international
legal scholarship. However, during the past two decades, two
prominent rationalist strands have emerged.
Since these
approaches 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 law
version 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 in
international relations are analogous to transactions in private
markets (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

20

What Can International Relations Learn From International Law?

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


jurisdiction to adjudicate (use domestic court proceedings) and
jurisdiction to enforce. International law can be understood as
focusing largely on the definition, exchange, and pooling of this
authority (id.). Although L&E approaches have not been nearly as
influential 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 commons
areas 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 other
developments, 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 and
methods 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 global
governance 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-known
international, 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).

What Can International Relations Learn From International Law?

21

GAL offers an intriguing challenge to conventional ways of


understanding 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 global
administrative space that includes international institutions and
transnational 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 range
of 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 alternative
approach that urges the application of constitutional principles to
improve the effectiveness and fairness of the international legal
order (Peters 2009; Tomuschat 1997).
Constitutionalist
approaches 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 its
more modest guises, the constitutionalist turn can be understood as
an 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 have
emerged. 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 Trachtman
2009b).
A second, normative constitutionalist approach
emphasizes human rights and judicial review in international
institutions (Petersmann 2008), and more ambitious approaches
that call for a legalization of transnational politics (Held and
Kumm 2004), or set out visions of a global order governed by an
identifiable constitutional text (Fassbender 2009).

22

What Can International Relations Learn From International Law?

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 recent
international 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 potentially
applicable 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 relative
merits 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 subjects
that 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 array
of 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 be
artificial, and in Part III of the paper, below, we identify valueadded insights for political scientists drawn from specific
theoretical traditions. Nevertheless, as prelude to that analysis, we
can 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 normative
approach 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 contains
guidelines for action; it tells its addressees what to do or what not

What Can International Relations Learn From International Law?

23

to do. The normative understanding also problematizes efforts to


link norms causally to changes in behavior. Laws normative
dimension means that law can guide, inspire, justify, or
legitimate behavior. This is perhaps most obvious in Francks
familiar discussion of laws compliance pull (Franck 1990), but
the appeal to laws normativity is a more general feature of
international legal scholarship. This perspective suggests one
important way that law influences outcomes, but it is exceedingly
difficult 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 the
more specific sense that, even in the eyes of legal scholars and
practitioners, they are often sufficiently vague that they cannot
determine definitively the legality of illegality of an action. This
feature of international law is hinted at in the framework of the
legalization 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 and
determinate, 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 the
concrete fact patterns of state behavior.
Third, legal rules and norms are plural, in the sense that
multiple 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 recognized
and theorized in sophisticated ways about this process of regime
complexity, focusing in particular on the strategic behavior of
states engaging in forum-shopping and regime-shifting in a context
of institutional proliferation. The legal literatures on legal
fragmentation, legal pluralism, and conflict of laws overlap in
part with this political science literature, but focus more intensively
on the implications of fragmentation for legal interpretation by
international courts and other actors, which as we shall see have
responded to this challenge in different ways.

24

What Can International Relations Learn From International Law?

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 can
more profitably be theorized in terms of process. Law, in this
view, is not simply a set of rules with which states can choose to
comply 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 and
unambiguous 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 laws 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 differ
systematically 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 a
resource 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 states
and/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 of
legal 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 a
discipline that is doctrinal, formalist, and politically nave 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

What Can International Relations Learn From International Law?

25

formalism that equates international law-making with the texts of


treaties, 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 blackletter law. Ironically, insights from international legal scholarship
can help political scientists avoid falling into the formalist trap.

III.

USING INTERNATIONAL LAW TO ENRICH INTERNATIONAL


RELATIONS

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 from
international 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 of
great 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 lawmaking, 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 as
customary 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 nonjudicial 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 highlight
laws indeterminacy, and explore how bureaucratic actors, and
others, use this indeterminacy to advance their goals within
bureaucratic struggles, and we conclude this section with a
discussion of the many ways in which international law can
influence international politics beyond compliance.

26

What Can International Relations Learn From International Law?

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 legal
concepts, 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, the
rational design (RD) project. While we could have chosen any IR
approach, 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 our
understanding 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; nonetheless
rational designs conceptualization of institutional design and
treaty architecture overlooks many of the most important aspects
of 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 the
more 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 scholars
interested in the making of international law focus almost
exclusively on treaties. As a result, the IR literature virtually
ignores 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

What Can International Relations Learn From International Law?

27

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 to
rebalance 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 the
causes 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 new
insights.
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 different
ways, and attempts to explain this variation.4 RD focuses
specifically 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 to
disseminate information, to reduce bargaining and transaction
costs, and to enhance enforcement.5
While centralization is
surely a critical element of treaty design, many lawyers would
suggest 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 of
these various centralization functions may vary independently
within any international agreement.

Institutions are defined as explicit arrangements, negotiated among


international actors, that prescribe, proscribe and/or authorize behavior.
Koremenos et al, supra note x, at 762.
5
Id. at 771.
4

28

What Can International Relations Learn From International Law?

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 to
identify the category of dispute resolution provisions as a feature
of treaty design risks being substantially overbroad, as different
dispute mechanisms exhibit substantially different institutional
features, including whether the dispute settlement bodys
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 decision
of 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 of
substantive 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 partys decision to invoke an
international 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 dispute
settlement 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, Rocke
and 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 attention
from 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

Id at 795.
Barbara Koremenos, If Only Half of International Agreements Have Dispute
Resolution Provisions, Which Half Needs Explaining?, 36 J. LEG. STUD. 189
(2007).
7

What Can International Relations Learn From International Law?

29

international law scholars. In the paragraphs that follow, we


demonstrate 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 responsible
for an internationally wrongful act is obliged to make full
reparation for the injury caused.8 Full reparation can take the
form of restitution, compensation, [and/or] satisfaction, as
appropriate to the circumstances.9 In addition to these general
norms, 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 the
nature 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 the
inter-American and European human rights systems presumably
faced similar cooperation problems, they created very different
remedies regimes. The Inter-American Court of Human Rights
can order fair monetary compensation for individuals who have

International Law Commissions Articles on Responsibility of States for


Internationally Wrongful Acts, in Report of the International law Commission
on the Work of its Fifty-third Session, UN GAOR, 56th 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.
8

30

What Can International Relations Learn From International Law?

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 The
treaty creating the European Court of Human Rights provides that,
in the event of a breach of the European Convention, and if the
domestic law of the state concerned allows only partial reparation
to be made, the Court has the power, if necessary, to afford just
satisfaction to the injured party.13 In contrast to the IACtHR, the
ECtHR is not authorized to grant other remedial orders that would
legally 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 certain
types of interim protection, monetary damages and any applicable
interest, 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 Yet
other 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 the
International Criminal Court permits victims of international
crimes within the tribunals jurisdiction to claim reparation for
wrongs suffered. In addition, the Statute provides for the creation
of a Trust Fund for the benefit of victims of crimes within the
ICCs 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.pdf
15
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).

What Can International Relations Learn From International Law?

31

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 legal
obligations to retaliate against another party that has violated its
own obligations. However, in the twentieth century, states began
to 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 to
historic monuments, civilian objects and the natural environment.
Another regime that has seen considerable evolution in the
treatment 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 complaining
state 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 were
appropriate for different types of violations. In most instances,
prevailing parties can suspend trade concessions in an amount
equal to the complainants level of injury from the violation;
however, different rules apply in cases involving WTO-illegal
subsidies.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 actionable
subsidies, trading states agreed on yet a different standard, namely
commensurate countermeasures.

32

What Can International Relations Learn From International Law?

perverse incentives for states to violate WTO law and drag out any
resulting dispute processes; others argue that the system cannot
meaningfully be invoked by small states against large states. As
part of an ongoing review of the WTO dispute system, both the
African Group and a group of least developed states have
submitted proposals that would permit collective retaliation by
all WTO members against a noncompliant state.17 Among other
proposals, Mexico proposed that the authorization to retaliate be
tradable,18 Ecuador introduced a proposal to raise the level of
retaliation permitted,19 and the EC introduced a proposal to
prohibit so-called carousel retaliation.20
As even this cursory review suggests, in trade and many
other issue areas, states do not simply debate centralization, or
even whether or not to have a dispute system. Rather, their
discussions and their subsequent design choices are
substantially more nuanced and fine-grained than the design
choices highlighted in RD scholarship. Thus, while RD provides a
logical springboard from which to theorize about variation across
agreements, greater attention to legal knowledge would enable RD
and other IR scholars to structure theorizing and data collection
more tightly focused upon the design elements that states
themselves focus on.
b) International Legal Scholarship on Remedies
Given their practical importance to the functioning of
international dispute settlement mechanisms, and the substantial
efforts that states devote to negotiating over remedies, this topic is
ripe for IR scholarship. Happily, should IR scholars choose to
explore this topic, they need not write on a blank slate; legal
scholars have devoted substantial energies to this topic.

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).

What Can International Relations Learn From International Law?

33

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, criminal
law, 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 is
agreed upon by the seller.
This modality requires little
centralized 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 buyers
and sellers. Most domestic legal systems do not permit individuals
to sell body parts, or to sell themselves into slavery, even if they
wanted to. These entitlements are immutable and nontransferable
or, in C&Ms term, inalienable.23

21

For example, on the law of international responsibility, see, e.g., THE LAW OF
INTERNATIONAL RESPONSIBILITY (James Crawford, Alain Pellet, and Simon
Olleson, eds. 2010); for rules regarding treaty breach, see, e.g., SHABBTAI
ROSENNE, BREACH OF TREATY (1985).
22
Guido Calabresi and A. Douglas Melamed, Property Rules, Liability Rules,
and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 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 neighbors tree falls
on my house or the government wishes to take it by eminent domain, and by an
inalienability rule when I am drunk or incompetent.

34

What Can International Relations Learn From International Law?

C&Ms innovative conceptual framework did more than


propose a novel taxonomy of legal entitlements. Their article also
proposed a taxonomy of normative considerations that judges and
other actors might consider when deciding how best to protect any
particular entitlement. These considerations helped spark a large
and sophisticated literature debating the circumstances under
which one or another rule should be used, such as Richard Posners
claim 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&Ms framework to
the 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 implement
liability 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 River26 provides a good example of the
way property rules can work in international settings. A 1944
treaty 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 renegotiate
the 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 as
they maximize contractual freedom and require the least amount of

24

RICHARD A. POSNER, THE ECONOMIC ANALYSIS OF LAW 29 (1972).


Jeffrey L. Dunoff & Joel P. Trachtman, Economic Analysis of International
Law, 24 YALE J. INTL 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.
25

What Can International Relations Learn From International Law?

35

collective intervention.27 Pauwelyn contrasts his position to what


he 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 competing
analysis 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 promotes
welfare.29
Under this welfarist approach, violations of
international law are not disfavored per se. Rather, breaches
should be permitted in several circumstances, including in
retaliation for noncompliance by other parties, and when when
contingencies increase the cost of performance above the other
partys 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 and
theoretical 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 writings
offer 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; we
think these arguments can and should be subject to empirical
27

JOOST PAUWELYN, OPTIMAL PROTECTION OF INTERNATIONAL 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 nonmonetizable
values 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. REV. 243 (2011).
30
Id at 264.

36

What Can International Relations Learn From International Law?

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 relatively
straightforward typology. Third, the legal literature problematizes
RD approaches to institutional design, as remedies regimes do not
correspond 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 human
rights 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 advocate
for 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 which
treaties 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 in
understanding 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 IR
literature 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 variations
across 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

What Can International Relations Learn From International Law?

37

important by both states and legal scholars but has been largely
ignored by political scientists. However, remedies hardly exhausts
the list of such features. While IR scholars have highlighted some
design features of international dispute settlement bodies (e.g., the
broad categories of delegation, access, and embeddedness in
Keohane, et al 2000), one can easily identify other important
features, including:

Ad hoc or permanent adjudication bodies? This is a truly


fundamental choice, which in theory is available to states
across 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? International
dispute 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 Sea
Convention offers yet another variant, requiring states to
accept the jurisdiction of some arbitrator or adjudicator, but
offering 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 international
dispute systems does not provide the option of appeal. And
yet several prominent dispute settlement systems such as
the 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 an
appellate 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 case
law. We would think that IR scholars could contribute
substantially to explaining the variation we observe in this
design feature.
Provisional remedies? Provisional remedies refers to the
ability of courts to order interim relief prior to the final
disposition of a dispute. Many international tribunals,

38

What Can International Relations Learn From International Law?

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 a
final judgment. But states have decided not to grant the
authority 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 vigorously
negotiate over these and related institutional features, and legal
scholars debate the normative costs and benefits of alternatives
over each of these, and other, dimensions. All of these represent
only 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 and
hence 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 of
international cooperation, to generate fresh perspectives and to
spark new insights.
For example, IR analyses of international
focuses almost exclusively on treaties. However,
perspective, the focus on treaties provides a
incomplete account of contemporary methods of

law creation
from a legal
substantially
law-making,

What Can International Relations Learn From International Law?

39

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 nonconsensual lawmaking processes.34 The failure to address these
other 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, in
contrast, 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 that
are 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 interests
or coordination, and is of limited use is solving cooperation
problems.35
But even these deeply skeptical accounts
acknowledge that customary international law remains an
important component of international law,36 and customary norms
continue to govern many foundational areas of international law,
including the rules concerning sovereign immunity, state
responsibility, territorial sovereignty, and the ability of states to
regulate 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


FUTURE: ESSAYS ON INTERNATIONAL 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.
REV. 71.
35
JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW
(2005).
36
Id. at 21.
THE

40

What Can International Relations Learn From International Law?

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 many
investment treaties that use the customary standard for
expropriation and fair and equitable treatment. Finally, newly
emergent 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 new
multilateral 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
laws dynamic dimension and in studying change over time will
find much in the writings of scholars from the New Haven school
and 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 for
the 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 new
normative arrangement stabilize than it, too, comes
under stress from new claims for change, in an
ongoing bargaining process between sometimes
rapidly 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

What Can International Relations Learn From International Law?

41

whole or in part, the practice becomes part of the


law. . . . 37
The claim-and-response nature of customary international
lawmaking 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 breaking
existing 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, the
concept of power is integral to the New Haven Schools
conception 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 in
which resources (material and symbolic) are manipulated, or the
strategies used by different participants involve the management of
resources aimed at optimizing preferred outcomes. Strategic
modes are considered along a persuasive-coercive continuum.

37

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


INTL L. 82 (2003).
38
Jonathan I. Charney, The Persistent Objector Rule and the Development of
Customary International Law, 56 BRIT. Y.B. INTL 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. INTL 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. INTL L. 64 (2006).

42

What Can International Relations Learn From International Law?

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 set
of capabilities, but also on the strategies and techniques
whereby states employ different power resources in international
legal 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 that
explore how custom operates as law, its legitimacy, whether it
serves efficiency or competing values, and its democratic
accountability. The most recent scholarly debate centers on
whether 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 substantial
literatures 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 international
law. Codification, for these purposes, consists of the formulation
and reduction to a written instrument of rules of law that elaborate
established [legal] doctrines and precedents.41 Particularly over
the last 100 years, states have undertaken a number of important
codification efforts. Among other efforts, the International Law
Commission has produced codifications of several foundational
doctrinal 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. REV. 1003 (2012).
42
Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S.
331.

What Can International Relations Learn From International Law?

43

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 international
investment 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 customary
norms can often be vague or ambiguous, codification permits states
to specify with greater precision customs requirements. This
precision, in turn, is thought to minimize costly disputes over the
laws content and enhance international coordination. Codification
is also thought to promote compliance.
Customary rules are
typically rules of conduct; such rules by themselves are not always
sufficient 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
rules status as domestic law, as many domestic systems
distinguish 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 in
increasing aggregate welfare unless they are able to increase their
individual share of the benefits of cooperation. Thus, Meyer
argues, the clarification thesis cannot explain codification in areas
in which there are sharp distributional consequences to clarifying
the law and when familiar bargaining problems prevent states from
creating a legal regime that redistributes the benefits of
cooperation. Similarly, compliance cannot fully explain many
codification 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. 95
44
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.

44

What Can International Relations Learn From International Law?

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 will
encounter 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 is
the product of a series of uncoordinated actions that results in
states coming to believe, based on each others actions, that a
customary rule exists. Powerful states have disproportionate
influence 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 to
custom (or an unfavorable shift in the balance of power). But
codification 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 treaty
settings 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 by
efficiency claims.

46

For example, the Vienna Conventions on Diplomatic and Consular Relations


contain 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; DAmato at 96.
49
Id. at 1023-24.

What Can International Relations Learn From International Law?

45

We highlight Meyers analysis not because we agree with


every 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 and
function 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 codify
international 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 testing
over the environmental features that make codification efforts
more or less likely to succeed, or explorations of the distributional
implications of specific codification efforts. Moreover, Meyers
conceptualization 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 creating
incentives 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 apply
themselves. 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 recently
international 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 have
moved 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 diverged
considerably. 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,

46

What Can International Relations Learn From International Law?

which provides that treaties shall be interpreted in good faith in


accordance 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 treatys
parties; the significance of travaux prparatoires; 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 foreground
questions 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 rational
design, 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 framework
which classified various international dispute settlement
mechanisms along three dimensions access, independence, and
embeddedness characterizing courts that were low in all three
dimensions 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 neutral
adjudication 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 design
features 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.

What Can International Relations Learn From International Law?

47

While a few legal studies had problematized and studied the


independence of specific international courts (e.g. Brown Weiss
1987), IL/IR scholarship has systematized such analysis, defining
judicial independence clearly and providing comprehensive
theoretical 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 to
establish, 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 independence
as 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 of
courts 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 and
under-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 territorial
disputes, Allee and Huth hypothesize that states are most likely to
refer international disputes to judicial settlement when the
domestic audience costs of making significant political
concessions are high. In such settings, they argue, international

48

What Can International Relations Learn From International Law?

judicial rulings can provide political cover for domestically


unpopular decisions, and their analysis of nearly 1,500 territorial
disputes provides support for the claim that state leaders opt for
legal dispute resolution when they are highly accountable to
domestic political opposition, as well as when the dispute is highly
salient 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 that
transnational dispute settlement systems, characterized by high
levels of access, independence and embeddedness, should show
greater dynamism over time, as individuals (not subject to
governmental 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 evergrowing case-loads (see also Helfer and Slaughter 1997; Stone
Sweet 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 research
questions and empirical subjects, while ignoring others that have
been studied far more extensively by international legal scholars.
Indeed, we would argue, international relations scholarship has
focused 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 should
interest 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

What Can International Relations Learn From International Law?

49

enrich future work. First, we suggest that the IR literature, while


examining international judicial behavior, has neglected almost
entirely the question of legal interpretation, and we identify some
recent work that approaches questions of interpretation in ways
that take account of doctrinal concerns while also asking socialscientific 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, as
opposed 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 us
consider 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 relative
neglect 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 existing
literature 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 some
important predictors of judicial behavior (Voeten 2013).
Yet in so doing most of the IR literature ignores other
aspects 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 Elsigs (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 consider
Pauwelyn and Elsigs 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 us
review this paper, and its implications, very briefly.

50

What Can International Relations Learn From International Law?

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 the
interpretive strategies they employ to reach those decisions. For
the sake of tractability, they reduce these strategies to choices
along five dimensions.
First, they identify a dominant
hermeneutic guiding judicial interpretation, which can focus
alternately on the plain meaning of legal texts (text), the intent of
the original drafters of the text (intent), or the underlying
objectives 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 prparatoires for the intent of the framers, and still
others (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 interpret
the terms of an agreement in line with their meanings at the time of
drafting, an originalist approach, or they can take an
evolutionary approach that interprets terms in line with their
contemporary meaning.
Third, courts can vary in their degree of activism, taking
either a work to rule approach that interprets legal texts
narrowly, or a gap-filling approach in which courts feel free to
develop 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 drawing
upon legal precedents when deciding new cases.
Fifth and finally, courts vary in what the authors call
linkage to other international legal regimes, in some cases
interpreting legal texts in a particular regime in splendid
isolation from the rest of the legal order, while in other cases
courts may be outward-looking, interpreting their constitutive

What Can International Relations Learn From International Law?

51

treaties with respect to general international law and to other


treaties in related issue-areas.
Pauwleyn and Elsig are careful not to claim that choices
along these five dimensions are determinative of substantive
outcomes in any individual case; indeed, they concede that, in
some cases, a tribunals interpretative method may be little more
than an ex post justification or faade for an outcome reached on
other grounds (2013: 449).
Nevertheless, they argue
persuasively, a given courts or even an individual judges
interpretive 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 Justices early decision
during 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 and
supremacy of European over national law. Similarly, the ECJs
strong tendency to rely on its own precedents, and its tendency
(reinforced in recent years) to treat the EU legal system as a
distinctive 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 have
varied 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. Just
as importantly, Pauwelyn and Elsig treat such choices not only as
doctrinal or normative decisions to be critiqued, but also as
outcomes to be explained in social-science terms.
Pauwelyn and Elsigs 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) the
supply-side interpretation incentives, defined as intrinsic
motivations of a tribunals 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 imprecision
of 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

52

What Can International Relations Learn From International Law?

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


principal-agent considerations such as the diversity of memberstate preferences and the control mechanisms created by them). In
some cases, they hypothesize, the interpretation space open to a
court may be constrained, e.g. by precise legal texts, a unified
membership and easy-to-use control mechanisms, while in other
cases courts may enjoy considerably greater latitude.
Where interpretation space is large, the courts choices will
be guided by interpretation incentives, which in turn relate to
institutional and normative factors. On the institutional side, three
institutional features a tribunals lifespan (permanent or ad hoc),
the composition of its constituency (whether non-state actors enjoy
standing), and the presence or absence institutional competition
from 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 judicial
choices 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 as
civil 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 lawyers
attention to doctrine, discourse, and process with the political
scientists effort to explain broad patterns of and variations in
behavior, and we believe it opens up a major new research agenda
for 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 in
international 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 IRs
formalist approach to law as written treaties international
relations scholars have thus far focused their analysis of
international legal interpretation almost exclusively on courts and

What Can International Relations Learn From International Law?

53

judges, effectively ignoring the large number of other quasijudicial or non-judicial actors who interpret international law on a
regular basis. A legal scholar, Cesare P.R. Romano (2011), has
catalogued the full range of international legal interpretation
bodies, noting that in many areas, the law is interpreted not by
international courts (which may be absent or lack compulsory
jurisdiction in a given case) but by other bodies such as treaty
secretariats or the various human rights and other committees that
interpret and apply often quite controversially the text of
international legal agreements. Strikingly, this broader canvas
reveals that much of the work of legal interpretation is carried out
not by judicial but by political bodies, the analysis of which might
be seen as a comparative advantage for political science scholars;
thus far, however, the work of these bodies has been examined
almost exclusively by legal scholars.
[Insert review of the existing legal scholarship on non-court
international legal interpretation bodies, e.g. environmental
implementation review and noncompliance systems and human
rights committees. IR scholars have begun to ignore the former
under the rubric of soft law and compliance studies, but have
ignored the latter.]
Finally, note that domestic governments also interpret
international law, as do domestic courts bridge to compliance
and internalization.]
C. Compliance
The subject of compliance with international law was long
neglected by both international law and international relations
scholars. Among legal scholars, there has been widespread
acceptance, and almost ritual incantation, of Louis Henkins (1979:
47) famous claim that almost all nations observe almost all
principles of international law and almost all of their obligations
almost all the time. Against this intellectual background, only a
handful of legal scholars sought to engage in any systematic
analysis of state compliance with international law prior to the
1990s. IR scholars similarly slighted the subject of legal
compliance until recently, assuming that law per se had no
independent causal influence on state behavior, with compliance
attributed largely to states instrumental calculation of their own

54

What Can International Relations Learn From International Law?

interests as well as to the shallowness of most international


agreements (Downs, Rocke and Barsoom 1996).
During the course of the 1990s, scholars from both
disciplines 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 and
Chayes 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 assumption
that 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. The
managerial school argues that sanctions are less useful than noncoercive managerial strategies in promoting compliance. Downs,
Rocke, and Barsoom, by contrast, argued that high levels of
compliance with treaty norms simply reveal the shallowness of
many international agreements. They claimed that as regimes
deepen and the gains from cooperation grow, so too do the
incentives to defect.
Thus, deeper agreements require
correspondingly 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 of
management techniques in precisely those situations where
compliance was most problematic as well as the naivet of IL
scholars. As Alexander Thompson (2013: 508) argues, however,
the debate formulation of the literature creates a tendency to
overlook 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

What Can International Relations Learn From International Law?

55

argued elsewhere, has made three signal contributions: a


conceptual contribution, clarifying the meaning of compliance and
its relation to other concepts such as enforcement and
effectiveness; a theoretical contribution, in which various authors
have 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 qualitatively
and 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 by
distinguishing among a number of related and sometimes confused
concepts, including compliance, implementation, enforcement, and
effectiveness (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 in
terms 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 have
now 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 undertake
significant 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 Brewsters
(2013) analysis of the relationship between international dispute settlement and
state reputation.

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What Can International Relations Learn From International Law?

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 and
enforcement to much more nuanced and fine-grained examinations
of the potential causal mechanisms whereby international law may
induce 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 predictions
of 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, the
impact 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 empirical
compliance 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, whereby
international 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 emerging
literature 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 to
the full range of domestic processes whereby international law is
or is not internalized into the domestic political and legal
systems, treating international law as more determinate than in
may be in practice, and ignoring potential effects of law other than

What Can International Relations Learn From International Law?

57

that of promoting (or failing to promote) compliance. More


concretely, 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 and
domestic 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 noninstrumental 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, which
excels 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-n
studies 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 particular
emphasis 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 international
law in terms of state ratification of treaties, thereby ignoring both customary
international law as well as the possibility that widely accepted international
legal norms might exert a normative impact even on states that had failed to
ratify them.

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What Can International Relations Learn From International Law?

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 a
great 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 the
Cuban 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 nave
regarding the real-world impact of international law. We therefore
take the liberty here of summarizing Chayes project, methods, and
findings, 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-ordeath security aspect of the crisis constitutes a hard case for those
who would claim an important causal role for international law.52
Chayes is clear that a legal position was obviously not the sole
ingredient of effective action for US officials in the crisis.53
However, in keeping with the aims of the broader ILP school,
Chayes notes,

It is the harshest test of international law, perhaps an unfair test, to ask


whether 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).
52

What Can International Relations Learn From International Law?

59

The series of studies of which this is one addresses


the 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 have
affected 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 substantial
among the relevant elements and considerations that
went into the amalgam of decision. (Chayes 1974:
4)
By political science standards, Chayes text lacks a clear
discussion of research design. Besides the selection of the Cuban
Missile Crisis as a hard case, explicit discussion of measurement
issues, and/or controlling for competing explanations for the
observed outcomes, is lacking. Yet Chayes offers not just a
riveting 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 implications
regarding 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-actor
model, 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 anthropomorphic
fallacy. 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 client
getting advice from his lawyer about whether a
proposed course of action is legal or not. The
role of law in the decisional process is settled by
whether the decision-maker followed this advice
particularly if it was negative (Chayes 1974: xx).

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What Can International Relations Learn From International Law?

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 to
different 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, Chayes
firmly 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 wide
latitude for interpretation by courts, states, and other actors:
Most people, laymen and lawyers alike,
typically think of law as a prohibition, a thou-shaltnot. It is a set of rules proscribing certain
conduct with penalties or sanctions attached to
violation. Whether from a desire to avoid the
sanction or otherwise, conduct is brought into
compliance with the applicable rule or norm. Noncomplying conduct is constrained.
A little reflection shows that this is only a
partial, and on the whole distorting, view of the
legal 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 case
of 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

What Can International Relations Learn From International Law?

61

common-law tradition, are very sensitive to nuances


of 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 of
lawyers 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 out
of 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 advice
must 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 is
especially true of international law, because of the diffuse modes
of establishing and clarifying rules. That is to say, because much
of 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 is
not adjudicated in court but is left to the multiple, competing
interpretations of states, international organizations, nongovernmental 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,

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What Can International Relations Learn From International Law?

there are many who still consider that legal advice or criticism in
the international field consists of laying the norm invoked beside
the challenged decision and seeing whether the latter squares with
the former (Chayes 1974: 101). In place of this view, Chayes
continues,
International law, in its normative sense, must be
seen as indeterminate with respect to much of the
array of concrete choices open in a particular
situation. Often the rules have no authoritative
formulation in words. Even when they do, the
terms are open to a broad range of interpretation
and emphasis (Chayes 1974: 101).
This inherent indeterminacy of international law, finally, is
highlighted when the conduct of the state is at issue, because the
state and even the executive branch on which Chayes
concentrates his attention is not a unitary actor but a group of
actors, each with personal and bureaucratic interests and
perspectives (Chayes 1974: 28).
For Chayes, these difficulties are not a counsel of despair
about the potential influence of international law on state behavior,
but they do provide methodological counsel about the ways in
which to observe that influence: not by naively laying the norm
invoked beside the challenged decision and seeing whether the
latter squares with the former, but rather by examining the
decision-making process of the state with an eye to the ways in
which lawyers and legal arguments actually find their way into the
decision-making process.
In empirical terms, Chayes who served as the State
Department legal advisor at the time of the crisis and was a
participant in the decision-making process concludes that law
influenced the behavior of the US government during the Cuban
missile crisis in three primary ways: (1) as a constraint on action,
with legal arguments helping to sway the governmental debate
from the option of an air strike toward the eventual naval
quarantine; (2) as the basis of justification or legitimation for
action; and (3) as providing organizational structures, procedures,
and forums, including most significantly the Organization of
American States (OAS) and secondarily (given the Soviet veto in
the Security Council) the United Nations (Chayes 1974: 7).

What Can International Relations Learn From International Law?

63

For current purposes, however, the primary interest of


Chayes 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 method
of 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 Chayess words:
First, law is not self-activating. On the whole, it
does 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 operating
officers. 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 and
his immediate client?... (Chayes 1974: xx)
Second, it is a mistake to consider law as a determinate set
of 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 and
analysis 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. The
corporate character of decision-making ensures that

64

What Can International Relations Learn From International Law?

these differentiating considerations will be pressed


home by the participants whose policy positions
they favor. The persuasive force of such arguments
and 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 is
unimportant. Rather, public acceptance of controversial policy
decisions requires a public legal justification of a governments
actions. In this context, justification consists of the defense and
explanation 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 action
and the kind of action that can be chosen. Some
of the characteristics of law give it special
importance for public justification. Because the
scope and variety of the audiences addressed, that
process must proceed in terms of more or less
universal and generalized criteria. [In addition to
moral 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. Law
thus becomes a prominent element in the
justification process. (Chayes 1974: xx)
In this context, Chayes is careful to emphasize that laws
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

What Can International Relations Learn From International Law?

65

requirement of legal justification can provide an important


substantive check on the legality of policy, and on the integrity of
decision-making processes.
Finally, Chayes emphasizes the central ILP insight
regarding laws role in allocating decision-making authority
among various institutions:
[xx] decision must take account of the international
organizational setting against which the action is
projected. Since the organizational setting is in a
strict 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 to
the legal elements of the position, because the
organizations themselves are dominated by
legalistic modes of procedure (Chayes 1974: 102104).
Our point in citing Chayes so extensively is not that he is
necessarily correct in his assessment of the role of international
law 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 the
United 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 necessarily
holding nave 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 that
international 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 United
States 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 Administrations actions.

66

What Can International Relations Learn From International Law?

made, and a resource for various actors in the process was once
commonplace among legal realist scholars, and yet is largely
forgotten by modern political science scholarship.
Chayes disaggregation of the state does, of course, find
echoes in some contemporary political science scholarship,
particularly in liberal studies like Simmons which examine how
not just executive but also legislative, judicial, and civil-society
actors use international law to bolster their arguments and
positions in domestic policy debates (see e.g. Simmons 2009;
others). And to some extent Chayes acknowledgment of the
potential indeterminacy of law arguably finds its way into
contemporary IR through the emphasis on precision as a variable
in the legalization framework. Yet we are aware of no
contemporary political science scholarship that explores the ways
in which an indeterminate international law offers multiple
constraints and resources to actors on multiple sides of domestic
policy debates.
Finally, to the extent that contemporary IR scholars do
examine the role of law in states domestic and foreign policies, we
arguably see a bias in favor of a few specific issue-areas, including
in particular human rights, and (with a few exceptions, such as
Morrow 2007) away from the national security decisions that were
the focus of Chayes work.
Perhaps the closest thing to a successor to Chayes that we
find in contemporary scholarship is another legal scholar, Jack
Goldsmith, who like Chayes seeks to understand the role of law in
US national security decisions. Like Chayes, Goldsmith was a
participant as a legal advisor (in the White House Office of Legal
Counsel) during a period of upheaval in national security, and who
in a pair of recent books assesses how a vague body of national
and international laws fed into the debates inside the Bush and then
the Obama administrations war on terror (Goldsmith 2007, 2012).
Like Chayes, Goldsmith explores the roles of law and of lawyers in
the policy process, examines frankly the disputes among lawyers
regarding permissible interpretations of sometimes vague
international laws, and underlines also the key question familiar
to students of epistemic communities but largely ignored with
respect to law of the relationship between legal advisors and their
political principals.

What Can International Relations Learn From International Law?

67

Also like Chayes, Goldsmith finds a significant role for


law, both domestic and international, in constraining and shaping
the response of the federal government to the national security
threat posed by international terrorism. Indeed, Goldsmiths books
serve 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 of
detainees, 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 reforms
in 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 Goldsmiths account are
almost entirely absent from Chayes account of the Cuban missile
crisis, 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.
Goldsmiths extensive focus on the role of the courts in
restraining presidential action raises a final point for this section,
regarding the reception of international law in national courts more
generally. Over the past two decades, IR scholars have of course
discovered 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 a
natural 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
EUs member states, where several generations of scholarship has
examined 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 and
executive 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 scholars
have been nearly silent on the question of international law in

68

What Can International Relations Learn From International Law?

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 unusually
ill-suited to the central social-scientific pursuit: the identification
and 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 per
year.
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 As 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. In
this 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, Martin
claims that the focus on compliance leads IR theorists into errors
of both omission and commission mistakenly attributing state
behavior to institutional participation, and underestimating the
influence 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 institutional
effects (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.

What Can International Relations Learn From International Law?

69

Significantly, Martins argument is not limited simply to


the claim that political scientists should redirect their attention to
changes in state behavior. Rather, she views IRs misplaced focus
on compliance rather than effectiveness more broadly as a
cautionary 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 be
cognizant of the differing aims of IL and IR scholarship, we
believe the moral of Martins story runs in precisely the opposite
direction. In fact, international legal scholars have long been
careful to disentangle the related, but hardly identical, concepts of
compliance and effectiveness. Moreover, lawyers have developed
much richer conceptualizations of compliance, noting that this
term is not exhausted by the notion of behavior in conformity
with rules and that laws impact can be measured in many ways
other than directly influencing state behavior. Thus, while
Martins review of the literature lead her to the conclusion that
attention to legal writings has led IR scholars astray, we think that
increased attention to IL scholarship can enrich IR thinking about
both compliance and international laws effectiveness.
A) Beyond Compliance as Conformity with Rules
Nearly two decades ago, legal scholar Benedict Kingsbury
argued 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 derives
meaning from theories [of law], so that different theories lead to
significantly different notions of what is meant by compliance.56
Kingsburys insight provides an important clue into how IL
writings 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. INTL L. 346, 346 (1998).

70

What Can International Relations Learn From International Law?

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 conformity
with rules is incomplete.
Rather, compliance is more
comprehensively described in terms of iterative processes that
involve relevant international institutions, interested states, and
other actors.
Weve described above how Chayess international legal
process approach addresses compliance. Here, we highlight
Harold Kohs competing transnational legal process approach.
Drawing on examples from human rights, environment, arms
control 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 the
situation. By so doing, the moving party seeks not
simply to coerce the other party, but to internalize
the new interpretation of the international norm into
the other partys internal normative system. The
aim is to bind that other party to obey the
interpretation 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 transactions
will 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).

What Can International Relations Learn From International Law?

71

Koh argues that through this three step process, domestic


decision making becomes enmeshed with international legal
norms, as institutional arrangements for the making and
maintenance of an international commitment become entrenched in
domestic 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 develop
institutional memory and create precedents to advance, rather than
conflict with, the internalized international norms.
To be sure, Kohs conceptualization of compliance may not
be fully satisfactory. As Robert Keohane has pointed out, Kohs
empirical illustrations of this theory may evidence selection
bias.59 Notably, Koh rarely attempts to justify or explain his case
selection, or to control for competing explanations of his data.
Moreover, his writings often highlight international laws success
stories, 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 produce
internalization 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 international
norms 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 and
is driven by state actors. The other causal pathway is triggered by
transnational norm entrepreneurs and involves pressure from
social groups and issue advocacy networks.61 This pathway is
primarily domestic and has many vertical components. Keohane
suggests 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.
Robert Keohane, When Does International Law Come Home?, 35 HOUSTON
L. REV. 699 (1999).
60
Id at 702.
61
Id. at 705.
59

72

What Can International Relations Learn From International Law?

and hence any strategies for enhancing compliance must identify


which pathway is of relevance.62
For current purposes, we are less interested in whether Koh
is 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 the
nature 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 potential
strength of the theory that calls for further refinement and testing.
The larger point is that engaging with Kohs work as that of
other process-based theorists highlights that the measure of
compliance 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 international
law.
B) Beyond the Compliance/Effectiveness Distinction
Martins central claim is that IR scholarship mistakenly
focuses on compliance, rather than the more relevant concept of
effectiveness. She argues that many IR writings conflate the
concepts 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 of
international agreements (Martin 2013: 593). As Martin notes,
however, legal scholars seem to be more sensitive to the
distinction between compliance and institutional effects than most
political scientists have been (Martin 2013: 600). Indeed, legal
scholars have long recognized the distinction between compliance
and effectiveness.
In 2000, legal scholar Kal Raustiala
foreshadowed Martins claims by noting that the prevailing
analytical focus on compliance is often misplaced and even
counterproductive as compliance with . . . treaty commitments is
in practice often inadvertent, coincidental, or an artifact of the legal

62

Id. at 709.

What Can International Relations Learn From International Law?

73

rule or standard chosen, the sheer fact of compliance with a given


commitment 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 of
International Laws 1997 Annual Meeting was devoted to
Implementation, Compliance and Effectiveness, and the
Michigan Journal of International Law ran a symposium on this
topic 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 reflect
coincidence, 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 of
these various phenomena should be the focus of scholarly
attention. For example, while Kohs theory explicitly seeks to
move parties from compliance to obedience, other international
lawyers counter that obedience is too ambitious a goal, and
pursuing it may undermine legal efforts to shift behavior in
desirable 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. RES. J. INTL L. 391 (2000).
64
Kal Raustiala & Anne Marie Slaughter, International Law, International
Relations and Compliance, in HANDBOOK OF INTERNATIONAL RELATIONS
(2002); Edith Brown Weiss, Understanding Compliance with International
Environmental Agreements: The Bakers Dozen Myths, 32 U. RICH. L. REV.
1555 (1999) (drawing, in part, from COMPLIANCE WITH INTERNATIONAL
ENVIRONMENTAL AGREEMENTS (Edith B. Weiss & Harold K. Jacobson eds.,
1996)); Ibrahim F.I. Shihata, Implementation, Enforcement, and Compliance
with International Environmental Agreements, 9 GEO. J. INTL ENV. L. 37
(1997).

74

What Can International Relations Learn From International Law?

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 and
more highly judicialized dispute processes, arguing that greater
legalization would increase compliance with WTO rules and hence
the 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 effectiveness
in other areas of international law, such as human rights, where
Helfer, and Cavallaro and Schaffer, have warned about the dangers
of 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 Martins paper, namely that
compliance levels reveal little about a rules causal impact, to
various 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 that
international law can impact behavior, and the various actors that
international law can impact. International lawyers have adopted
Louis Henkins advice to think beyond the substantive rules of
law 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. REV. 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.

What Can International Relations Learn From International Law?

75

opportunities it offers, the limitations it imposes.67 As a result of


the richer conceptions of the nature and workings of law outlined
above, international lawyers have generated a broader
understanding of laws effects than is commonly found in IR
writings. Weve already noted that Chayes emphasized that, in
addition to acting as a constraint on action, international law serves
as a basis of justification or legitimation for action and that law
allocates decision making authority among different
organizational structures, procedures and forums through which
decisions are reached.
In a recent paper, international legal scholars Robert Howse
and Ruti Teitel enumerate some of international laws 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 whether
an issue involves conflicting interests or claims of
right. For example, the recent debate over the
legality of targeted killings, and the release of
Department 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 not
formally 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 jurisdictions
may 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).


Robert Howse & Ruti Teitel, Beyond Compliance: Rethinking Why
International Law Really Matters, 1 GLOBAL POL. 127 (2010).
68

76

What Can International Relations Learn From International Law?

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 when
interpreting analogous provisions of the U.S.
constitution.69 Moreover, U.S. courts routinely hold
that federal statutes should not be interpreted so as
to conflict with the nations international legal
obligations. 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 states 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 negotiate
disputes, and, as Coase taught, impact both the
substantive 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 with
applicable 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).

What Can International Relations Learn From International Law?

77

In each instance, Howse and Teitel argue, international law


matters 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, Kohs transnational legal process approach and
Chayess 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 IR
scholarship. 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 in
our theorizing and empirical study of the effects of international
law. Contemporary legal theory suggests we can do so by focusing
less on states behavioral compliance with often indeterminate
legal norms than on how legal processes shift disputes into
alternative processes and decision making fora. These legal
approaches also teach that international laws effectiveness cannot
be measured simply through compliance with rules, but through
taking account of laws multiple effects on a broad range of
legislative, executive, judicial, and private actors.
CONCLUSION
IL scholars have learned much from IR theory; the
importation of insights and methods from IR over the past two
decades 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 two
disciplines 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 law
and 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,

78

What Can International Relations Learn From International Law?

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 approaches
like rational design, as well as shedding light on neglected issues
such as customary law. In terms of interpretation, IR scholarships
existing 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 and
effectiveness, 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 technical
scholarship, 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 in
making 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 appear
trivial 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 the
common aims of IL and IR scholarship. On both counts, we
welcome corrections and suggestions for improvement.

What Can International Relations Learn From International Law?

79

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