14 International Law

Beth Simmons

The study of international law and interna- foreshadowed the current sharp upswing in tional relations has flourished in the past interest in international law. Not only are decade. This should hardly be surprising. scholars increasingly interested in the grow- These two disciplines have closely entwined ing “legalization” of international affairs, historical roots in the traditional study of they are making tremendous strides in theo- interstate relations and diplomacy (Jeffery rizing and documenting the consequences of 2006). The role of international law in inter- international legal norms and agreements for national relations has for a least a century our understanding of international affairs been at the heart of some of the most impor- more generally. This has led to new fields of tant debates in international relations schol- inquiry in international relations that were arship. Something of an intellectual wedge barely apparent two decades ago. was driven between these two disciplines The first section of this essay defines a few when the social sciences and international key terms and provides some historical back- relations in particular took a behavioralist ground on the relationship between interna- turn in the 1940s and 1950s. The normative tional law and international relations. The and doctrinal approach of many legal schol- second section discusses the major theoreti- ars seemed to have little intersection with the cal approaches, from those that highlight increasingly social scientific concerns of material incentives to those that rest on more international relations scholars to explain, ideational foundations. The third section interpret, and increasingly to predict interna- discusses international law development – tional politics. For a brief period coinciding concepts of legalization, judicialization, con- with the apogee of structural realism of the stitutionalization, and global administrative 1970s and 1980s, international law was law. The fourth section reviews theories widely viewed as irrelevant to the study of and empirical studies of compliance with international relations. public international law. The final section The drought of scholarly work linking concludes that theory has become less com- international law with international relations partmentalized by “school” and empirical ended by the mid-1990s. The study of inter- research has become more rigorous over the national regimes in the 1970s and 1980s past decade.

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BACKGROUND Some scholars and practitioners make refer- ence to “soft law.” In international relations, Scope and Definitions this can have two meanings. One refers to any written international instrument, other International law can be defined as a body of than a treaty, containing principles, norms, principles, customs, and rules recognized as standards, or other statements of expected effectively binding obligations by sovereign behavior. Or, it sometimes is used to refer to states in their mutual relations. “What dis- the more hortatory or promotional provi- tinguishes law from other types of social sions within a legally binding treaty (Shelton ordering is not form, but adherence to 2009: 69). specific rules of legality: generality, prom- International law is found not only in trea- ulgation, non-retroactivity, clarity, non- ties but in the body of custom that has devel- contradiction, not asking the impossible, oped over time among states. Customary constancy, and congruence between rules international law is based on state practice, and official action” (Brunnée and Toope combined with an understanding that such 2010). International law’s distinguishing practice has developed into an obligatory feature – that which sets it apart from an norm (opinio juris). When a stable practice institution, practice, or political agreement – develops among a sufficiently broad number is its acceptance in principle as binding. of states, and when a large number of them Public international law comprises a set of view the practice as legally binding, it binding rules among states. Increasingly we becomes recognized as a binding principle of can find instances in which such rules international law. Ius Cogens norms are con- govern individuals (international criminal sidered the most fundamental principles of law and some aspects of the laws of war, for customary international law, from which example), but only states (or in some cases, derogation is not ever allowed. While no organizations of states) can enter into inter- single authoritative list of such norms exist, national legal agreements, or treaties. This some examples include prohibitions against binding state-to-state quality distinguishes aggressive war and crimes against humanity. international law from the broader concept A similar set of basic norms are sometimes of international institutions, which can termed erga onmes – obligations owed to all. include nonbinding practices and which, Examples include obligations to refrain from many would agree, can also include rules slavery and torture. Legal scholars have also and principles devised by nonstate actors given attention to a growing body of what (see the chapter by Martin and Simmons in they refer to as “interstitial law,” that is, the this volume). implicit rules operating in and around explicit Study and research on international law is normative frameworks (Lowe 2000). While also distinct from that of international an important source of international law in organizations. While intergovernmental many areas, customary and interstitial inter- organizations are usually based on an inter- national law have been the subject of rela- national legal agreement (the various bodies tively little attention in international relations, of the United Nations are obvious exam- perhaps because they can be difficult to ples), they are also actors in their own right, establish empirically and their causal influ- and are often studied as such. Many interna- ence is hard to study rigorously (Goldsmith tional legal agreements give rise to thin or and Posner 2005). Since much of interna- even no international organizational struc- tional custom – from the law of the seas to tures whatsoever. An extradition treaty, for prohibitions against torture to the law of trea- example, creates no international organiza- ties – has now been codified, IR scholars tion whatsoever. The parties to the agree- have largely concentrated on treaty law. This ment decide when and how to carry it out. article will do the same.

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International law in history the European international law actually became valid as universal law of the world in Some form of international system of rules the geographical sense” (Yasuaki 2000). has governed relations between independent Most international law histories can therefore political entities for centuries if not millen- be considered the history of European tradi- nia. David Bederman argues that there was tions and structures, developed in the wake “a coherent sense among ancient peoples of the crumbing Holy Roman Empire, the from Near East and Mediterranean traditions scourge of repeated wars, and the rise of that state relations should be conducted in trade and maritime transportation (Nussbaum accordance with established norms and 1954; Butler and Maccoby 1928). values” (Bederman 2009: 115). He notes that ancient law among nations was first and fore- most an instrument for order, used to secure not only stable power relations among sover- THEORETICAL APPROACHES eigns but also to bolster their internal legiti- macy. While the prehistory of legal The Early Twentieth Century agreements between organized groups of humans has been lost in the mists of history, International law and international relations as early as 2500 BCE evidence can be found scholars began an intense, self-conscious of third party arbitration awards regarding dialog in the early twentieth century. One arable land among cities, as well as nonag- window into this conversation is the implicit gression pacts (frequently violated) among debate that took place during the interwar the same (Altman 2004). Ancient Sumerians years on the role of international law in concluded “international” agreements regard- reducing violent conflict among nations. In ing dynastic marriage alliances between many ways, of course, this was a subset of rulers, arbitration in city-state conflict man- the more general debate about the role of agement, and the laws of travel and extradi- power, morality, and law that took place tion for runaway slaves, refugees, and among a variety of so-called legal idealists deserting soldiers at the dawn of recorded and realists in the 1920s and 1930s. E.H. history (Altman 2009). Carr was one of the most prominent com- It is not the purpose of this article to mentators for the latter (and, in fact, is the develop a history of the development of likely source for the “idealist” label). The international law. However, many such histo- “idealists” held in common the notion that ries note that international law has roots in progress in international relations post World the rules and principles developed by the War I was indeed possible, and would likely Roman Empire to govern interactions be built upon the pillars of international between Roman citizens and citizens of the trade, international organizations, and domes- outside world (jus gentium, or the law among tic democratic governance (Zimmern 1934; peoples, rather than jus civile, or the law Angell 1911). Many expected international among citizens of Rome). For centuries – at law to play a significant role in the interna- least until but perhaps well beyond Grotius’s tional order of the time. Indeed, as the United treatise on The Laws of War and Peace States rose to power in the early twentieth (Grotius 1962) – international law was widely century, it found itself with a weak foreign viewed as grounded in natural law, divine in policy structure, but a well-developed notion origin. Of course, as Yasuaki reminds us, of the role of law in ordering human affairs. “The overwhelming majority of the human Steinberg and Zasloff argue that it was there- species lived in the areas where ‘universal’ fore natural that the United States would see natural law had no impact at all. It was only international politics through a legalistic around the end of the nineteenth century that lens, as epitomized by such statesmen as

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Elihu Root and Woodrow Wilson (Steinberg tended to become at variance with and in and Zasloff 2006). large measure irrelevant to the reality of In many ways, the interwar “debate” international politics” (Morgenthau 1985: 8). between the Idealists and realists has been The central problem with international law, exaggerated (Simpson 2001). Woodrow as he saw it, was its decentralized and essen- Wilson himself spoke publicly of law gener- tially unenforceable nature (Morgenthau ally as ‘subsequent to the fact;” as reflective 1985: ch. 18). The message of the classical of rather than transformative of social reali- realists was pretty clear: nothing of real ties (Wilson 1911). Yet realists such as E.H. importance in international relations could Carr emphasized what they saw as naiveté in be achieved through international law. As the hope that international law could contrib- Raymond Aron put it, “One does not judge ute much to the post-war peace, much less international law by peaceful periods and stave off general war in the 1930s. His work secondary problems” (Aron 1981: 733). At is enlightening as a succinct expression not most, the classical realists thought that inter- only of classical realism: “... a state whose national law could function in a limited way interests were adversely affected by a treaty when the underlying balance of power kept commonly repudiated it as soon as it could the most violent ambitions of states in check. do so with impunity ...” (Carr 1964: 169). But shifting power balances exposed interna- Carr can also be read as a precursor of criti- tional law’s weaknesses and “created oppor- cal legal theory. In his discussion of the post– tunities for chaos” (Hoffmann 1987: 166). World War I order, he described treaties as Kenneth Waltz’s influential structural real- devoid of moral content, espoused by those ism stripped law, rules, and norms away satisfied with the status quo to secure their completely, until the only thing of relevance interests (Carr 1964: 166). High on his to a theory of international politics was agenda was the project of deflating the pre- “structure” – defined as power relations sumption that international law was particu- among states in a system of anarchy (Waltz larly moral or legitimate1 – a message that 1979: 70–101). “Structure” thus defined, resonates with critical theory today. Waltz admitted, was “certainly no good on detail” (Chapter 2) – which is the status to which he evidently relegated international Post–World War II: International economic relationships, protection of the Law in a “Science” of Politics environment, and human rights. With these “details” removed from international poli- Continuing many of the themes developed in tics, law became largely irrelevant to the the 1930s, the classical realists of the 1940s study of international relations. By the late through 1960s can be read to have under- 1970s, the study of international law in the stood law as largely epiphenomenal, or worse social sciences was nearly moribund. yet, irrelevant to the more basic forces of Nearly, but not completely, and not for international politics. The “science” of inter- long. The realist view of the world raised national politics was designed explicitly to some uncomfortable theoretical puzzles. One leave behind the normative wishful thinking was to explain why such a useless institution of legal idealists, and to describe not the as international law existed at all. Surely world one might wish, but the world as it there were costs involved in negotiating actually is. And the lessons of World War II international legal agreements, seeking ratifi- were fairly clear in this regard: power could cation, and dreaming up ways to fit specific not be contained by fragile legal tenets. agreements logically under broader norma- Morgenthau, for example, complained that tive principles to which many if not most “the very structure of international relations – state adhered. Moreover, states seemed for as reflected in … legal arrangements – has the most part to be guided by the rules they

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were negotiating. Morgenthau himself noted Stephen Krasner, was an effort to understand that “The great majority of the rules of inter- a world that, while quite obviously anarchic, national law are generally observed by all was nonetheless highly organized (Krasner nations without actual compulsion, for it is 1983a). A cluster of scholars in the early generally in the interest of all nations con- 1980s began to work out theories of the for- cerned to honor their obligations under inter- mation, transformation, and decline of formal national law” (Morgenthau 1985: 112-3). and informal arrangements they referred to as Echoes of this sentiment could be heard “international regimes,” or rules, norms, and years later in the writing of a scholar with decision-making procedures that shape actors’ realist roots who took the possibility of expectations and thereby influence relations “international society” seriously. As Hedley among other states and between states and Bull wrote, “The fact that these rules are other actors (Krasner 1983b: 2). The early believed to have the status of law ... makes regimes literature was theoretically eclectic. possible a corpus of international activity It ranged from structural/strategic approaches that plays an important part in the working of that linked the rise of regimes with specific international society” (Bull 1977: 136). In power relations among states (Stein 1983; these views, we find two openings for theo- Keohane 1983) most especially with the rizing the conditions under which interna- hegemony, or dominance of a major power, to tional law can influence the actions of more “Groatian” approaches that assumed a sovereign states; via their interests, and via common social purpose among states and to their shared conceptions of appropriate some extent other actors (Ruggie 1982). behavior. Each of these has found expression Two distinctive theoretical traditions found in recent approaches to the study of interna- in this early regimes literature continue to tional law in international relations flourish in the social sciences today. To sim- plify the matter greatly, they were inspired by the seminal theoretical work of Robert Contemporary Theories Keohane and to a lesser extent Stephen Krasner on the one hand and John Ruggie Resistance to the utter irrelevance of interna- and to a lesser extent Friedrich Kratochwil tional law has developed in two fairly distinct on the other. Keohane’s theory of the demand theoretical traditions in the past two decades. for “international regimes” spawned a hugely Both “rationalists” – a broad term used here influential research agenda constructed on to designate theorists who emphasize instru- rationalist/functionalist premises to explain mental behavior to achieve specific, often the rise and development of international material ends – as well as constructivists – regimes (Keohane 1983). Strongly influ- broadly, those who believe in the constructed enced by institutional economics, Keohane nature of social reality – were intrigued by proposed a “functional” theory of interna- the puzzle of international law’s very exist- tional regimes that analyzed why states would ence. Many wondered whether realism had demand such structures, arguing that the any theoretical purchase on understanding a existence of rules norms and agreed-upon world in which rules, norms, dispute settle- procedures helped to reduce transactions ment procedures, and other law-like struc- costs among states, reduce uncertainty, and tures were proliferating. create focal points around which states could One of the most important theoretical coordinate their behaviors and policies. Some developments in international relations to regimes were also theorized to provide influence later scholarship on international information that would assist in developing law explicitly eschewed any connection to reputations, thereby reinforcing agreements law per se. The “international regimes” litera- for states that wanted to benefit from future ture, exemplified in a volume edited by contracting.

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This general functional approach to inter- compliance – only has meaning when it is national institutions has had a tremendous constructed by a community of actors about impact on the study of international law in which a specific actor cares. the social sciences, despite the fact that it In constructivist theory, rules and norms was not conceived as a theory of interna- are important, not only because they solve tional law per se.2 Many of the same assump- problems, but also because they condition tions, concepts, and modes of reasoning actors’ self-understandings, references, and could be found in the IR/IL theories that fol- ultimately their behavior. Indeed, rules are lowed. Charles Lipson, for example, concen- crucial in determining who is a legitimate trated on the focal qualities of international actor in world politics. The basic tenet of sov- treaties and in particular their explicitness ereign state equality that serves to privilege and precision which he and many others states as the relevant actors in international argue raises the reputational costs of non- law itself is a social construction, and there- compliance. States use very formal agree- fore open to contention and redefinition. ments (international law) when they have Among the original “regimes theorists,” strong motives to try to overcome coopera- John Ruggie’s work represented and tion dilemmas; treaties are a way to be advanced this intersubjective approach. One explicit and to signal seriousness in a way of his much-cited articles interpreted the that distinguishes them from less formal postwar set of rules governing international agreements (Lipson 1991). Abbott and Snidal trade, not simply as rules about reciprocity drew on the idea of transactions costs to and market access, but in terms of the explain why states would want to develop broader social purpose of achieving employ- “hard law” agreements (Abbott and Snidal ment and income security as well (Ruggie 2000). A similar rationalist logic character- 1982). The trade regime, he noted was gov- izes a number of scholar-practitioners as erned not only by material power distribu- well, from international jurist Rosalyn tions, but also by what actors had come to Higgins to Justice Department legal counsel regard as “acceptable” behavior, and what Jack Goldsmith (Higgins 1994; Goldsmith was acceptable was the product of intersub- and Posner 2005). Agreements regarding the jective meaning, not coercion or narrow law of the seas (Posner and Sykes 2009), material payoffs alone. trade liberalization, arms control, and even These insights have influenced a broad the laws of war (Morrow 2007) have been range of constructivist theorizing about inter- theorized as areas in which joint gains and national law. Christian Reus-Smit, for exam- the expectation of a future stream of benefit ple, argues that rules and norms are important have been theorized in rationalist-functional- because they “condition actors’ self-under- ist terms (see below). standings, references and behavior…” (Reus- Yet, rationalist theories have a number of Smit 2004: 3) Or as Friedrich Kratochwil put bind spots that more social constructivist it, “Law is always more than simply an theories have to some extent been deployed instrument of regulating present interfer- to address. For example, it is quite obvious ences and the inevitable conflicts among that focal points have to be intersubjectively self-interested actors; … it is one of the pri- recognized to be helpful at coordinating mary means of making sense in individual behavior. “Law” can only raise expectations and collective life” (Kratochwil 2009: 56) of compliant behavior if actors share a mutu- The reciprocity on which law depends for its ally constructed notion of its special obliga- existence – its very character as obligatory – tory status (Brunnée and Toope 2010). Most “can only exist when actors collaborate to evidently, the concept of a reputation – the build shared understandings …” (Brunnée mechanism on which rationalists typically and Toope 2010: 7). Reciprocity in this view depend for reciprocity and ultimately is deeper than a series of contracts for mutual

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advantage. It is fundamental for the construc- Critical legal scholars generally agree with tion of communities of mutual obligation. the realists that international law almost In contrast to the more rationalist always operates to favor the powerful, approaches, constructivists emphasize how wealthy, and dominant elites of any society. rhetoric, deliberation, and persuasion influ- The two branches of critical legal studies ence actors’ preferences. When actors debate that are most relevant to international affairs the content, interpretation, and application of include postcolonial studies and feminist international law, they simultaneously engage theory (see the chapters by Zehfuss, and in activities that potentially feed back into Sjoberg and Tickner, in this volume). their understanding of their identities and Historical critical legal theory offers a strong therefore their preferences. Many scholars of critique of international law in the context of international law insist that legal discourse colonial and postcolonial studies. Marti is distinctive in this regard. Christian Reus- Koskenniemi describes the role of interna- Smit claims, for example, that legal discourse tional law – and, in particular, international differs from extra-legal discourse because it lawyers – in legitimating the categories of structures the discussion toward multilateral- “civilized” versus “uncivilized” while at the ism, obligation, and legal justification (Reus- same time striving in an honorable if pater- Smit 2004: 5). Legal discourse, relying as it nalistic fashion to protect the latter from the does on rules, facts, precedents, and agree- worst forms of exploitation by such private ments, is a way to structure discussions that entrepreneurs as Cecil Rhodes (Koskenniemi encourage actors to internalize broadly 2002). More generally, critical legal scholars accepted principles rather than narrow con- are concerned with “the management of the ceptions of interest (Johnstone 2003). The non-European world by international law and central issue for constructivists is how actors institutions” (Anghie 2005: 246). They insist come to accept certain rules and the interna- that international law be analyzed not only tional legal system itself as legitimate. For it from the point of view of its generators, but is the legitimacy of these rules, and the extent from the vantage point of the peoples who to which they are widely viewed as “fair,” were in fact subject to it. Critical legal schol- that helps to explain their importance in ars such as David Kennedy come to the con- international affairs. clusion that law in general and international A broad range of scholarship has had an law specifically rarely delivers on its hyped- important presence in law schools, but has up promises, for example, in the human had a weaker influence in international rela- rights arena (Kennedy 2004). tions or political sciences departments, or in Feminist theories of international law echo the social sciences more generally. Critical the thrust of critical theory above, only the legal theory, for example, became a fairly focus is on the public and the patrimonial well-developed school of thought in the nature of the international legal system, and 1970s, at about the time that regime theory hence its systematic silencing of issues of was developing. Critical legal theory devel- concern to women (Buss and Manji 2005). oped from a radical left ideology, but in fact As in other areas of international relations, has much in common with realist theories of feminist theorists stress the disempowerment international relations (aside from the of women, in this case via “the role of the assumption of state centrism, which it does legal system in creating and perpetuating the not particularly espouse). Along with real- unequal position of women” (Charlesworth ists, critical legal scholars generally viewed et al. 1991: 613). In particular, the feminist law in general and international law in par- critique is that public international law is just ticular as indeterminate; its general provi- that – public – and is construed as relating sions hardly dictated necessary outcomes, to the male world of states rather than and there was a lot of room for manipulation. the “private” world of women’s issues

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(Charlesworth et al. 1991: 627). Using human CENTRAL PUZZLES: INTERNATIONAL rights law as an example, feminists argue that LAW DEVELOPMENT the emphasis on such public acts as free speech and political participation, while The “legalization” of important, hardly challenge the true rights international relations abuses that women suffer daily in their private lives: a lack of reproductive auton- International relations scholars seem to have omy, battery, rape, and prostitution to name (re)discovered not only that world politics but a few (Stetson 1995). are organized, but also quite legalized While distinctive theoretical strands of toward the end of the 1990s. The creation of international law scholarship can certainly the International Criminal Court, the appar- be discerned in the literature, increasingly, ently growing authority of the European empirical researchers are problem driven and Court of Justice, and the development of use a combination of these theoretical dispute settlement procedures within the insights to guide their inquiry. Much research WTO all seemed to signal that perhaps the attempts theoretical synthesis (see the chap- post-Cold War years would indeed be a ter by Checkel in this volume) or at least period of intense legalization of interna- displays declining respect for sharp theoreti- tional affairs. At a minimum, these develop- cal boundaries (Simmons 2009a). Long- ments drew scholars’ attention to the nature standing theoretical traditions continue to and extent of variation in regarding legal inform research. But today’s realists are arrangements. more likely to stress international law’s epi- To explain patterns of legalization, phenomenality rather than its utter irrele- Kenneth Abbot and his co-authors have pro- vance to international politics (Downs et al. posed a multidimensional continuum rang- 1996; Goldsmith and Posner 2005), and ing from an ideal-typical “highly legalized” some acknowledge the possibility that inter- setting to a weakly legalized, or even non- national law might influence state behavior – legalized, one. They distinguish three “ele- even in wartime – by theorizing and testing ments” of legalization: obligation, by which for its possible influence in their research they meant the extent to which “state or (Valentino et al. 2006). The “irrelevance” of other actors are [legally] bound by a rule or international law to international politics no commitment”; precision, or the extent to longer has the status of a self-evident truth which “rules unambiguously define the con- among realist theorists. Meanwhile, theorists duct they require”; and delegation, or the of such processes as legalization and judi- extent to which third parties have been cialization draw on both functionalist and “granted authority to implement, interpret, constructivist insights in explaining thicken- and apply the rules; to resolve disputes, and ing international legal structures and institu- (possibly) to make further rules” (Abbott tions (Sandholtz and Stone Sweet 2004). et. al., 2000: 401). Critical scholars are more explicitly norma- Many scholars have used this framework tively driven, but come to conclusions that to understand the varying density of legaliza- would hardly surprise their conservative tion across time and space. Drawing on func- realist counterparts. One of the most gratify- tionalist logic, Kenneth Abbot and Duncan ing aspects about the research on interna- Snidal argued that “international actors tional law and international relations is that choose to order their relations through inter- debates over meta-theoretical orientations national law and to design treaties and other have to some extent become muted in the legal arrangements to solve specific substan- interest of going after genuine puzzles tive and political problems” (Abbott and (Simmons 2010), to which we turn in the Snidal 2000: 421). They hypothesized that following section. hard law was especially useful (and therefore

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predicted) when actors wanted to make strong Lawrence Helfer and his co-authors develop credible commitments, where the actors a similar argument about uncertainty to faced high transaction costs, and when they explain derogations in international human anticipate problems arising from incomplete rights treaties, which they argue are a response contracting. On the other hand, soft law to domestic political uncertainty, enabling arrangements were rationally preferred, governments facing serious domestic threats Abbott and Snidal surmised, when it would to buy time to confront crises while signaling be politically costly to get states to agree, and to various external or domestic audiences when actors were uncertain about the conse- “that rights deviations are temporary and quences of an agreement in the future. While lawful” (Helfer et al. 2011). Alexander Abbot and Snidal claimed their approach Thompson finds good support for the propo- “combines the rational incentives associated sition that uncertainty helps to explain flexi- with ‘contracts’ and the normative considera- bility in the international law relating to tions associated with ‘covenants’” (Abbott climate change (Thompson 2010). In short, and Snidal 2000: 455), their explication uncertainty has been a key explanation for clearly has its theoretical heavy foot in the variance along at least one of Abbott et. al.’s rational world of contracting. (2000) three dimensions of legalization: the The framework on which the legalization extent and nature of legal obligation. project is based resonates with a number of There are some trends in world politics rationalistic studies about the nature and that the functionalist vision advanced by the especially the form of international legal legalization project has a hard time explain- agreements. The obverse of obligation is ing. One is the spatial variation in the phe- flexibility, and a number of studies have nomenon: why so much legalization in sought to use a rationalist framework to Europe but not in East Asia, for example? explain why it is that governments enter into Miles Kahler tries to grapple with this in his binding agreements, only to design them discussion, but ultimately accepts that the with huge loopholes through which they can Association of Southeast Asian Nations’ escape their obligations? Barbara Koremenos (ASEAN’s) fairly recent acceptance of cer- notes that such an apparent contradiction tain processes such as third party adjudica- reflects states’ efforts to cope with uncer- tion of territorial disputes supports “demand tainty, which is rife in international coopera- driven” or possibly “strategic” explanations tion problems (Koremenos 2005). States for Asia (Kahler 2000). Another puzzle, from cannot predict the effects that various random this perspective, is the growth of the interna- shocks will have on the distribution of bene- tional law in the area of human rights. While fits from a particular agreement. The larger in some loose sense “demand driven,” it is the variance in these shocks, more likely certainly hard to understand why rational states are to include renegotiation clauses self-interested states would find it in their (though, curiously, not escape clauses) in interest to create binding international agree- international agreements (Koremenos 2005). ments to treat their own citizens with respect. The extent and conditions of legal obliga- Beth Simmons argues that it might have been tions are also influenced by uncertainty in more “functional,” from the point of view of Milner and Rosendorf’s model of interna- state demand, to contract to maintain mutual tional trade agreements. In their case, the silence in this issue-area (Simmons 2009a). uncertainty arises from domestic reactions to And yet the legal regime for international trade conditions; the less sure governments human rights has increased and hardened can be about how a trade agreement will substantially over the course of the past five affect domestic political demands, the more decades. likely they are to assent to optimal escape The approach forwarded by the Legalization clauses (Rosendorff and Milner 2001). Project drew fairly immediate fire. The idea

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of studying legalization struck legal scholars hear and render views on complaints of as a peculiar self-created puzzle that “it pre- individuals alleging noncompliance by their supposes that a legal void is coming to be governments with their treaty obligations. filled, without properly questioning whether It is always possible to dismiss these devel- that void existed to begin with” (Klabbers opments as window dressings, but that raises 2009: 8). Moreover, its narrow rationalist, its own puzzles: Why bother creating interna- formalist, and liberal approach drew criti- tional tribunals? And why take the risk of an cism from constructivists in both law and the adverse decision and bad publicity, should social sciences. Most irksome was the one rule against you? project’s effort to single out three dimensions The judicialization of international politics of legalization, an exercise that seemed arbi- has been explained in several different ways. trary and not well justified to critics. Martha One theme is to note that domestic politics Finnemore and Stephen Toope argued that are increasingly judicialized (Tate and legalization was not in any sense dependent Vallinder 1995), and we should therefore not on precision or delegation, and pointed to be surprised to see these domestic forms of entire areas of law governed by vague princi- politics spreading to the international system. ples of “equity” and whole international legal Some scholars attribute this global judiciali- regimes such as human rights that involve zation to economic liberalization, which very little delegation at all (Finnemore and introduces new actors, increases demands for Toope 2001: 747–8). What the project really transparency, and extends the market for legal missed, according to these scholars, was a services globally (Kelemen and Sibbitt 2004; good grip on obligation as a subjective sensa- but for a critique, see Levi-Faur 2005). tion. For these critics, the focus on formal Judicialization is central to the develop- agreements unnecessarily bureaucratized the ment of governance institutions more gener- notion of law and stripped it of its central ally. Alec Stone Sweet has developed a claim on human action: acceptance of its theory that links judicialization to the inter- legitimacy. ests of pairs of state actors, but his account links the process of deciding specific cases to the development of international norms. Judicialization and delegation Blending elements of rationalist theorizing with constructivist ideational elements, he If explaining legalization proved to be a bite views judicialization as an essential aspect of too big to chew, it has been somewhat more normative development and change. Conflicts tractable to explain a related phenomenon: develop out of dyadic state interactions, and international judicialization. One of the most states have a strong interest in developing conspicuous developments in international rules for the settlement of these disputes. law in the past few decades has been the Judicialization involves two disputants and a emergence of authoritative third party bodies “resolver” whose narrow purpose it is to to help to settle international legal disputes settle the dispute at hand, but whose broader among states, and sometimes between states social purpose includes the reproduction and and individuals (Alter 2011: Romano 1999: reinforcing of broader norms of rule interpre- Spelliscy 2001). Examples of new interna- tation and behavior. At root, this is a func- tional judicial institutions include those with tionalist account: the dyadic form “generates a functional remit, such at the International a massive functional demand for dispute Tribunal for the Law of the Sea and those resolution in the form of rule interpretation” with little more than a “quasi-judicial” (non- (Stone Sweet 1999: 154). As in most tradi- litigious, nonbinding) character, such as the tional functionalist accounts, states turn to recently acquired powers of the Committee third parties because they want to continue to on Economic Social and Cultural Rights to enjoy the benefits of contracting with other

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states. Stone Sweet relies on “identity” argu- judicialization, with varying consequences ments to make this point: the parties have to for law development and law compliance. understand their interests as being served by Keohane and his co-authors were careful to pursuing a common interest, and not as distinguish between two ideal types of “judi- exclusively competitive with other states. cialization” (Keohane et al. 2000): on the one “Resolvers” in turn are characterized as stra- hand, transnational adjudication is much tegic: they try to choose solutions to disputes more independent from the interests of the within the “overlapping bargaining space” of disputing parties, and tends to be relatively the disputants. (Stone Sweet 1999: 156). In easy for individuals and other actors to the process, however, the “resolver” responds access. On the other hand, state-to-state dis- to and generates social change. pute resolution bodies tend to be character- Rational functionalist logic does seem to ized by a low degree of independence from dominate the empirical research explaining the disputants, and are harder for nonstate the turn to third party dispute settlement. In actors to access whether as parties or “friends some accounts, the logic of turning to an of the court.” authoritative third party flows from domestic Scholars disagree about the extent to which politics. For example, Christina Davis finds international courts can effectively act inde- that democratic governments turn to third pendently from states. International legal party dispute settlement at the WTO when scholars have advanced impressionistic executives face relatively protectionist legis- notions, largely drawn from the European latures. Under these circumstances, using the experience, to claim that independent tribu- dispute settlement panels of the WTO allows nals are quite likely to be effective in settling a leader to appear to be “doing something” to disputes among states (Helfer and Slaughter stand up to protectionism without responding 1997). However, legal realists Eric Posner with protectionist measures of their own and John Yoo contend that “independent tri- (Davis 2012). Beth Simmons makes a similar bunals pose a danger to international coop- argument about domestic dysfunctionality to eration because they can render decisions explain the resort to third party arbitration to that conflict with the interests of state parties. settle territorial disputes (Simmons 2002). Indeed, states will be reluctant to use interna- While they deal with completely different tional tribunals unless they have control over issues, these studies share a logic that sees the judges. On our view, independence pre- the turn to international dispute settlement as vents international tribunals from being a strategy states adopt to circumvent the effective” (Posner and Yoo 2005: 7). Posner problems associated with divisive politics at and Yoo argue that there is a narrow set of home. circumstances in which states find “inde- Others locate the impulse to delegate not pendent” tribunals useful: when the tribunal in internal politics, but to external bargaining can provide neutral, credible information pressures. The trend in the international law about the law or about some set of facts that of investment is an interesting example of would be difficult otherwise to obtain. Only judicialization as the results of hard-nosed when states want to settle a legal problem, bargaining: capital exporting companies are and have an interest in such information, do lobbied by international firms to demand Posner and Yoo acknowledge that interna- international arbitration clauses in their tional courts are likely to play a useful dis- investment agreements, and tend to get more pute settlement role. stringent delegation from capital-importing The empirical work to support these claims countries in weak negotiating positions of the effectiveness of international judicial (Allee and Peinhardt 2010; Simmons 2011). institutions has been relatively unsystematic. The example of investor protection draws For one thing, not nearly enough care has attention to the fact that there are varieties of been given to conceptualizing and measuring

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“effectiveness” in this context. Posner and comes to cases decided by the European Yoo advance three “highly imperfect” meas- Court of Human Rights. In that context, he ures: “compliance,” “usage,” and “overall found fairly convincing evidence that judges effectiveness” to try to establish that inde- did indeed have policy preferences over pendent courts are no more effective than rights (and, in fact, judges from previously ones that are more controlled by states socialist governments were more likely to (Posner and Yoo 2005: 28–9). We will have rule against their governments than in their more to say on compliance below, but note favor) but that judges do not use the tribunal here that there is a growing literature on to make larger, geopolitically relevant points compliance with the decisions of interna- (Voeten 2008). Voeten also finds that govern- tional arbitral and/or adjudicative bodies ments choose judges for the ECtHR that (Paulson 2004). But because of the serious reflect their preferences for EU expansion problem of designing research that takes (Voeten 2007), but this is not to say that these good account of the processes whereby states judges rule in a nationalistic way or are choose judicial dispute settlement (these beholden to their appointers. processes vary, but all involve some form of consent), it is hard to draw strong inferences about the impact of international tribunals on Global constitutionalism and Global dispute settlement. There seems to be a Administrative Law – Solutions to growing recognition that international courts Global Governance? cannot be completely independent from states; if judges are concerned that their deci- Globalization and its consequences have had sions be implemented, they must to some a tremendous impact on the way that scholars extent anticipate how the executives and leg- are thinking about international law. Several islatures in the countries concerned will concerns arise: the international legal system implement their decisions (Carrubba et al. is growing increasingly complex, with law 2008; Busch and Pelc 2010). and jurisprudence developing at various Debates about the nature of international levels of governance (global, regional, courts and their relationship with states have national) and across distinct issues areas spawned research into judicial behavior at (trade, human rights, the environment). the international level. Much of this literature International law is traditionally state-centric, is clearly inspired by the domestic literature yet modern problems raise issues of how to on courts and judicial behavior. The general regulate the activities of nonstate actors. finding that international judges – no less International law has traditionally not been than domestic judges – can behave strategi- especially transparent; that is, diplomatic cally has opened up research into how inter- traditions have influenced its development, national judges are appointed and whether and participation by stakeholders has hardly they can be considered mere puppets of state been a traditional core concern. Several actors. Consistent with their realist perspec- research programs have developed – prima- tive, Posner and de Figueredo run regressions rily in legal academies – in the past decade to that suggest judges of the International Court address some of these issues. I discuss them of Justice favor the states that appoint them, in this section under the headings of constitu- as well as states at or near their own develop- tionalization, global administrative law, and mental level (Posner and de Figueiredo private governance. 2005). But it is hard to know whether this Regional experience with supranational constitutes “bias” since there is no clear law has led to some significant differences yardstick for a “fair” decision. Erik Voeten between Europeans and the rest of the world comes to a completely different conclusion with respect to the possibilities of a more about international judicial behavior when it coherent and consistent international legal

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system (Weiler and Wind 2003). While Where do scholars look for evidence of a American scholars are quick to note the waxing global constitution? The United limits of international law and Asian voices Nations Charter is the usual candidate, by are scarcely heard in the IL/IR literature, virtue of its attention to broader governance Europeans have begun to theorize and to issues, to defining community membership, assess the extent to which “… international and to setting up a hierarchy of values law is increasingly starting to look like the (Fassbender 1998). The Universal Declaration sort of legal order we are familiar with from of Human Rights (UDHR), sometimes in our domestic legal systems” (Klabbers 2009: conjunction with the International Covenant 11). As law has become more fragmented on Civil and Political Rights and the across legally defined issue areas, is it pos- International Covenant on Economic, Social sible to articulate a more coherent set of and Cultural Rights, is sometimes said to principles for ordering the international legal resemble and indeed to function as an system? A constitutional order is one that “International Bill of Rights” (Gardbaum spells out relationships of authority among 2008). As the Security Council has taken political institutions, how those institutions actions in the name of peace and security that are to be controlled, and the fundamental impinge on the rights of individuals (the rights of individuals vis-à-vis those public maintenance of individuals on terrorist black- authorities. Moreover, “Constitutionalism lists, for example), some scholars believe it promises to settle the score once and for all, has become urgent to think through the prin- by giving either jus cogens priority, or trade, ciples that govern the relationship between or human rights, or erga omnes principles” international authority and individual rights. (Klabbers 2009: 18). Moreover, there is the question of the proper Two branches of literature have developed: relationship between international legal a normative literature that analyzes the prob- authority and regional legal authority. The lems of a fragmented international order, and European Court of First Instance’s 2005 an empirical literature that – much like the decision3 that the EU is bound by interna- legalization literature discussed above – that tional law as decided by the Security Council tries to assess the extent to which a constitu- certainly does pose “constitutional” ques- tional order is developing or, in fact, already tions of the highest order. exists (Klabbers 2009: 4). International rela- Others point to governance within issue- tions scholar have noted what might be specific functional areas as evidence that called “constitutional bargains” associated international law is becoming more “consti- with the end of great wars (1815, 1914, and tutional” in nature. Deborah Cass argues 1945) after which great powers design inter- that the decisions of the appellate body of national institutions in their own interests, the WTO, for example, reflect growing locking other states into these structures, and attention to what one might term constitu- yet creating stability in a “hegemonic” fash- tional principles: concerns about democracy ion by institutionalizing rules of the game and governance, constitutional design, fair- (Ikenberry 2001). Legal scholars claim that ness, and allocation of policy responsibility constitutionalism has recently been on the (Cass 2005). Others disagree, and indeed rise around the world (Ackerman 1997). are puzzled by debates of “the WTO’s (non- Joseph Weiler argues that this is a response to existent) constitutional features” and believe globalization, the erosion of state sover- the debate over constitutionalism reflects eignty, and the attendant need to regulate the anxieties about the status of international activities of nonstate actors – all of which law rather than its real characteristics seem to have put the credibility of the inter- (Dunoff 2006). national legal system under some stress The desirability of a constitutional moment (Weller 2009). for international law is hardly universally

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embraced, of course. If something as foun- legality, and by providing effective review of dational as an international constitution is the rules and decisions they make” (Kingsbury developing, this raises serious concerns for et al. 2005: 17). By concentrating on what the way in which a robust international con- they view as the more technical administra- stitutional structure is adopted. One critique tive side of governance, this approach hopes focuses on the contribution that a global to downplay the role for grand (and contro- constitution in principle makes to the demo- versial) global values, and concentrates on cratic deficit posed by international law how international institutions make the deci- more generally. Indeed, Buchanan and sions they do (Klabbers 2009: 28). The study Powell warn against the process of interna- of global administrative law is related to tional law’s slow accretion of constitutional concerns among normative social scientists status, charging that “public constitutional about the extent to which international law is deliberation and popular choice has been compatible with acceptable levels and modes conspicuously absent” from the process of accountability generally (Buchanan and (Buchanan and Powell 2008: 346). Powell 2008). Democratic theorists chafe at the easy assumption that self-governance at the local level can be preserved without a significant if not Herculean effort at “contextualization, COMPLIANCE WITH INTERNATIONAL interpretation, and vernacularization by self- LEGAL AGREEMENTS governing peoples” (Benhabib 2009). Perhaps it is best modestly to conclude, as One of the greatest growth sectors in the does Andrew Hurrell, that if the international study of international law and international legal system is indeed constitutionalizing, it relations in the past decade has been on the will at most evolve toward a “common law questions of compliance and effectiveness. constitution” – one that is likely to be identi- Dogged by the realist challenge to show fied over time rather than ratified in toto that international law and institutions matter (Hurrell 2007). to outcomes we may care about (Mearsheimer On a more quotidian level, globalization 1994–95), and the growing recognition even has led to some very practical problems that among international legal scholars that there demand the attention of scholars. The rapid are limits to international law’s influence growth of international and transnational on state behavior (Goldsmith and Posner regulatory regimes with administrative com- 2005), scholars have devoted tremendous ponents and functions governing activities – attention to designing research that can from banking and finance (Büthe and Mattli address the question of whether interna- 2011) to labor standards (Macdonald and tional agreements facilitate anything more Macdonald 2006) to the investment decisions than shallow cooperation; that is, do they of the World Bank (Fourie 2009) – has cre- influence states to behave in ways or to take ated an accountability deficit in the growing policies that they might otherwise not have exercise of transnational regulatory power. done, were it not for the existence of an One response has been an effort to document international legal norm (Downs et al. and theorize the development of “global 1996)? And does it matter whether a given administrative law … comprising the mecha- state has explicitly subscribed to these nisms, principles, practices, and supporting norms through ratification? social understandings that promote or other- In parallel with the discussion of theories wise affect the accountability of global of international law above, it is possible to administrative bodies, in particular by ensur- distinguish two general clusters of theories of ing they meet adequate standards of transpar- law compliance: theories of material pres- ency, participation, reasoned decision, and sures, and theories that depend primarily

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on ideas, identity arguments, and persuasion. Surprisingly few studies of international It may be also useful to distinguish theories law compliance rely exclusively on state-to- that locate the primary source of compliance state coercion to explain international law pressure at the interstate, transnational, and compliance. In the nineteenth century, local levels. It is essential to reiterate, how- Krasner characterizes the enforcement of ever, that few actual accounts of compliance international law as episodic and based on are clean examples of one causal mechanism. various forms of retaliation. He argues, for Most draw on both material pressures as well example, that toleration of religious minori- as nonmaterial influences. Many span more ties primarily resulted from a concern about than one level of causal analysis. Moreover, retaliation against one’s own nationals and almost all recognize different compliance not out of respect for treaties protecting their mechanisms have varying relevance across a rights (Krasner 1999: 82). Studies of the laws variety of issue areas. of war have found that international norms that are not enforced – for example, norms proscribing the intentional killing of civil- Material “enforcement”: ians – are likely to be sacrificed to military from international coercion exigencies, an outcome not affected by inter- to domestic constraints national law. Valentino et al. found that the intentional killing of civilians was correlated Perhaps the most common theory of compli- with the strategy chosen to prosecute the war, ance with international law is most closely but not influenced at all by ratification of the aligned with realist thinking: compliance relevant treaty for the time period under depends on the willingness of states to question. (Valentino et al. 2006). Realists enforce agreements, using material pres- have long asserted that “most human rights sures if necessary. This is the case especially practices are explained by coercion or coinci- if the issue-area at stake is one regarding dence of interest” (Goldsmith and Posner which governments are likely to renege on 2005: 262); consequently, early quantitative (arms control, prohibitions on the use of studies of human rights agreements that torture, trade liberalization). In the absence found little improvement in rights practices of material pressures to comply, we are only upon their ratification assumed that this was likely to see compliance based on a coinci- because they were unlikely to be enforced dence of interests (Goldsmith and Posner (Hathaway 2002). Emelie Hafner-Burton 2005) or very shallow compliance at best infers state-to-state enforcement is important (Downs et al. 1996). Examples of state-to- for compliance with international human state efforts to use material pressures to rights norms from an observed correlation enforce international law include the use of between trade agreements with stringent authorized retaliation by the dispute settle- human rights provisions and rights improve- ment panels of the WTO, the linkage of ments (Hafner-Burton 2005), although the trade to legal human rights practices , and nature of these agreements is likely highly enforcement actions authorized (or not) by endogenous to rights programs in the “target” the United Nations Security Council. The country in the first place. One tantalizing basic theory is simple: unless states face possibility is that states use multilateral significant costs, they will violate the law if forums to manipulate sanctions to enforce it is in their interest to do so. The approach international law. James Lebovic and Erik predicts better compliance rates, other things Voeten for example have shown that resolu- being equal, where states face a credible tions of the Human Rights Commission are threat of material punishment for their trans- linked with reductions in aid from the World gressions by their peers or international Bank (Lebovic and Voeten 2009). State-to- organizations. state enforcement is certainly an important

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part of trade law under the WTO dispute set- largely by default. Theories that posit that tlement panels, and while the decisions of international law is weak because it is not these panels enjoy extremely high rates of enforced are likely to assume the converse: compliance, these rates are not plausible material coercion increases compliance. The linked to material coercion. There seems to indeterminacy of the decades-long debate be no clear relationship between the magni- about the effectiveness of sanctions – even in tude of retaliation and the likelihood of the unlikely event that states decide to bear compliance with a WTO panel. the burden of imposing them (Hovi et al. One twist on coercion models assumes 2005) – should cast some doubt on the easy that states want to expose themselves to assumption that international material coer- external enforcement. The assumption of cion alone increases compliance with inter- credible commitment theory is that many national law. Scholars and observers, of states are unable to enjoy the “joint gains” course, have long recognized that with few implied by international agreements pre- exceptions enforcement – from military cisely because their potential partners do not action to economic sanctions to diplomatic know if they will carry them out. Incentives hardball – itself is costly. If we want to think to misrepresent true intentions aggravate the of adherence to international law as an contracting problem. Almost all theories of “international public good,” then no one credible commitments rest on the assumption actor is likely to want to bear the burden, and, of time-inconsistent preferences: it may be as realists and others have noted, interstate rational in time t to promise to behave enforcement of all kinds is likely to be under- according to an agreement, but in time t+1 it supplied. Indeed, the observation that states is likely that one or both parties will face rarely use available enforcement mechanisms incentives to renege on the agreement. One to enforce international legal norms (Chayes way to reduce these incentives is to increase and Chayes 1995) – even in such important costs a government will face if it reneges on areas as arms control – has led to a search for an agreement. By tying their hands, govern- other plausible explanations for compliance ments may be able to conclude profitable with international norms. contracts that would have been difficult to The dominant rationalist rival to the com- conclude in the absence of high ex post pliance-by-coercion theory is the theory of violation costs. Enforcement in such models self-enforcing agreement. Most international is a desirable feature of agreements that norms are not, in fact, enforced though the facilitate the realization of joint gains. Several pressure of third parties or the explicit sanc- scholars have argued that agreements that tions of a treaty partner. Rather, they are contain monitoring, arbitration, prosecution, enforced simply by the threat of withdrawing or dispute settlement mechanisms are efforts from the agreement itself, and the risk of to make commitments more credible by ram- losing or reducing the future flow of benefits, ping up ex post costs. Examples include not by third party sanctions. Reciprocity and peace agreements that create international reputation are the key enforcement mecha- “audience costs” (Fortna 2003) the nisms. Robert Keohane’s early theories of International Criminal Court (Simmons and compliance with international regimes fol- Danner 2010), bilateral investment treaties lowed this logic (Keohane 1984). Since (Elkins et al. 2006), territorial agreements “enforcement” depends largely on reciprocity, with provisions that tend to tie the parties’ this framework is useful for explaining stable hands by raising ex post costs (Mattes 2008), trade agreements (Goldstein et al. 2007), and the more institutionalized provisions of some aspects of the laws of war, where mili- some alliance pacts (Long et al. 2007). taries risk retaliation in kind (Morrow 2007), Overall, the coercion hypothesis domi- and obligations whose violation might pro- nates the international relations literature voke negative market reactions, as is plausible

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in the area of monetary affairs and investment services over the past several decades. Indeed, (Simmons 2000). although recent experience demonstrates that Theories of self-enforcing agreements and multilateral trade agreements are difficult to especially those based on reciprocity and the reach, compliance tends to be high. Judith value of a reputation for compliance for pur- Goldstein and her co-authors have shown poses of contracting have inspired a rich that there has been “enough” compliance empirical literature, much of it in the area of with the various treaty obligations to make a war fighting and security. James Morrow’s marked positive impact on bilateral trade study of eight different subissue areas, includ- (Goldstein et al. 2007). Moreover, there ing aerial bombardment, armistice/ceasefire, seems to be a good deal of consensus that chemical and biological weapons, treatment while some 90 of all adopted decisions of of civilians, protection of cultural property, WTO involve a finding of a violation, in conduct on the high seas, treatment of pris- practically every case the violator complies oners of war, and treatment of the wounded with the decision of the panel (Wilson 2007). suggests that reciprocity is key to establish- Why such a high compliance rate, especially ing stable compliance with international given that many of these cases that escalate norms on war-fighting, and that treaties play to a formal panel decision are politically a special role in facilitating this reciprocity “hard” cases to solve (Guzman and Simmons (Morrow 2007). He argues that treaties clar- 2002; Davis 2012)? Daniel Kono’s study of ify what is, and what is not acceptable behav- how trade dispute settlement mechanisms ior, which allows adversaries in war more facilitate reciprocity provides a potential precisely to respond to violations in kind. answer (Kono 2007). He argues that defiance Alliance commitments may have self-enforc- of WTO decisions inflicts too heavy a repu- ing features as well, that work largely through tational toll. It is not the threat of retaliation reputational mechanisms. Douglas Gibler as much as a loss of potentially rich contract- produces evidence that governments (note: ing arrangements that inspires states to not “states”) that abrogate their alliances are comply with their trade agreements. less likely to be able to negotiate alliance Most international norms and agreements relationships for the rest of their terms, do not, of course, have strong external making it harder to deter potential aggressors enforcement mechanisms. Some interna- (Gibler 2008). Alliance treaties tend to be tional legal norms, such as human rights, do “self-enforcing agreements” in that the ex not even involve international reciprocity in post consequences of abrogation entail very any clear way (Simmons 2009). Increasingly, real risks to national security into the future. research on compliance reflects the possibil- Consistent with this view, Leeds and Savun ity that some of these norms are enforced found that states do not abrogate alliance primarily through domestic rather than agreements lightly, but typically when they through international mechanisms. A grow- experience a drastic change in circumstances ing research stream now focuses on the from those prevailing when the treaty was domestic “audience costs” associated with ratified (Leeds and Savun 2007). noncompliance with international law. The The self-enforcing nature of much interna- notion that international legal commitments tional law is perhaps best illustrated by com- engage domestic audiences has reoriented mercial norms and agreements. In the area of some of the theoretical literature toward trade, the role of reciprocity is thought to be domestic and comparative politics. Xinyuan so strong that there is no realistic option to Dai theorizes that “toothless” international compliance; no state would want to risk institutions’ legal agreements sometimes withdrawal from the network of liberalizing inform electorates that governments are pur- treaties that (presumably) have done so much suing policies they do not perceive to be in to further market integration in goods and their interest. Dai theorizes that compliance

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with international agreements is enhanced information asymmetries predict low com- through new information, generated by treaty pliance with multilateral environmental bodies and monitoring systems, that inform agreements (MEAs) in general, and the 1992 and empower domestic voters to punish UN Framework Convention on Climate governments for actions of which they Change in particular (Bernhagen 2008). In disapprove (Dai 2007). When a potential pro- several studies, nongovernmental organiza- compliance constituency is large (which is tions have been shown to be important to not always the case, even in democratic poli- compliance outcomes, via lobbying and ties), and when an international agreement monitoring functions (Bernhagen 2008; see sheds significant new information on the also Gulbrandsen and Andresen 2004). One government’s record of compliance, a gov- key to compliance in the environmental area ernment will have strong electoral reasons has been to understand the incentives of not to violate international agreements. Dai’s public and private actors, and the ways in theory sheds light on why it is that liberal which they interact. democracies are often better treaty compli- ers: they are populated by large numbers and dense networks of citizens with extensive Ideational Approaches: Legitimacy, interests in predictable and harmonious tran- Identity, Persuasion, and snational relationships (Gaubatz 1996; Socialization Slaughter 1995) who are in a position to “punish” their governments electorally. But A second class of mechanisms offered for to the extent that the electoral “enforcement” explaining compliance with international law mechanism is blunted or anticompliance rests on its legitimacy as a social institution. groups dominate electoral politics, the pres- Legal scholars emphasize the elevated status sure on states to comply will diminish. of legal commitments, which raise the repu- Finally, nonstate national and transnational tational stakes associated with noncompli- organizations can play a role in “enforcing” ance (Guzman 2002; see also Schachter international law by virtue of their ability to 1991). This special quality of international manipulate the material incentives of decision legal obligations may be due to the fact that makers. Elizabeth Desombre’s study of com- they are embedded in a broader system of pliance with international environmental and socially constructed interstate rule-making, labor laws in the international shipping indus- normatively linked by the principle of pacta try stresses the exclusion of corporations sunt servanda – the idea that agreements of a from certain “club goods” such as port access legally obligatory nature must be observed. (DeSombre 2006). She notes that despite the Customary international law seems to carry a economic pressure to cut corners and violate strong presumption of legitimacy; after all, agreements, the ability of port states, interna- one criterion for identifying custom in the tional labor unions, intergovernmental fishery first place is the criterion of opinion juris - organizations, and high-standard industry the widespread sense that complying with a actors to exclude violators associated with particular rule is “obligatory.” particular flags of convenience has helped to While enforcement theories typically nudge some of the worst polluters toward at assume the pursuit of material interests or least partial compliance. Since environmental office seeking (as posited by the analyst), protection is a regulatory policy that involves constructivists tend to view law as more than a broad array of nongovernmental actors, it is a way to improve payoffs; it embodies norms not surprising that models stressing the civil which reflect the social meanings and pur- society and interest aggregation abound. poses of the relevant community. Rules and Patrick Bernhagen proposes a model in which norms are important because they “condition business organization, structural strength, and actors’ self-understandings, references, and

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behavior ...” (Reus-Smit 2004).. As such, legal decision of an authoritative body has a they become a key focal point for discursive different social meaning than compliance struggles over legitimate political agency and with the demands of an adversary. (Simmons action and critical resources in the interna- 2002; Allee and Huth 2006). Sara Mitchell tional politics of legitimacy. International and Paul Hensel use a selection model to law has a special place in the array of social demonstrate empirically that governments norms, some constructivists argue, because it are more likely to comply with the decisions shapes the justificatory politics that ultimate of an authoritative third party than they are inform official actions. with an agreement reached on their own Some empirical work is beginning to test (Mitchell and Hensel 2007). These findings arguments about the power of perceived illuminate how the legal context potentially legitimacy of international legal obligations shapes the meaning of actions: deferring to to explain state policies and behavior. Judith legal authority signals a law- abiding charac- Kelley’s empirical work stresses the princi- ter, while deferring to an adversary signals pled commitment of states to comply with nothing but weakness. This is a powerful their legal obligations associated with the demonstration of the need to marry rational International Criminal Court, and finds an accounts with subjective understandings of impressive rate of compliance with those behavior. obligations, despite very material pressure by If discourse and ideas inform politics, then the George W. Bush administration not to law compliance is explicable in terms of cooperate with the ICC (Kelley 2007). She what actors come to believe and value. argues that a strong commitment to the rule Compliance with rules can be enhanced of law highly conditions any general claims through efforts at socialization, or what about the overall “compliance pull” of trea- Kathryn Sikkink and Thomas Risse define as ties generally. Consistent with normative the process by which principled ideas become theories of behavior, the “tug” is strongest broadly accepted norms. Once they are inter- for those polities that place the highest value nalized, these norms can lead to changes in on the rule of law. interests, values, and even identities, which The notion that international law may have in turn ultimately shape state behavior (Risse more legitimacy than other kinds of commit- et al. 1999). ments has been recently subjected to empiri- Compliance is enhanced in this view when cal investigation at the individual level of actors become socialized to comply. analysis as well. Michael Tomz has recently Socialization can mean three kinds of proc- used survey evidence to test the proposition esses in this literature. In a crude sense, that there are more significant “audience actors (state elites) can be “socialized” costs” (reputational repercussions) associ- through a system of rewards and punishments ated with law violation than with an other- (Schimmelfennig 2005). This form of social- wise similar behavior that does not violate ization shades into incentive-based induce- international law (Tomz 2008). Just what ments discussed above. More subtly, actors gives rise to any potential audience costs is can be encouraged through various cues unclear, but one prime candidate is the legiti- indicative of social acceptance or approba- macy of a legal obligation: a sense on the part tion to bring their practices in line with inter- of survey respondents that international legal national standards. Ryan Goodman and Derek commitments are somehow more compelling Jinks refer to this as a process of accultura- that run-of-the-mill policy pronouncements. tion by which they mean the “general process The legitimacy of international legal norms by which actors adopt the beliefs and behav- is also reflected in some studies of compli- ioral patterns of the surrounding culture” ance with international judicial and quasi- (Goodman and Jinks 2004). Acculturation judicial bodies. Arguably, compliance with a involves “social costs” associated with

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shaming or shunning as distinct from the through the work of individuals who have more material costs associated with overt one authentic foot in the local culture and the coercion. These pressures may lead to super- other in the transnational world of United ficial compliance with international norms as Nations conferences, meetings and work- reflected in treaty obligations, not necessarily shops. These individuals play a crucial role the internationalization of norms as deeply Merry’s felicitous phrase in “translating held values (Strang and Chang 1993). global principles into the local vernacular” Institutional sociologists touted the (nonmate- (Merry 2006). This is a two-way form of rial) power of “world society” to generate and communication, often supporting new ideas diffuse norms of behavior that mimic accepted and identities at the local levels but also scripts of modernity – encouraging countries educating the global community about the on the periphery to display outward forms in local realities on the ground. conformity with the institutions and forms of leading states of the Western world – without Capacity Constraints internalizing the values behind these forms Sometimes neither incentives nor ideas are (Cole 2005; Wotipka and Ramirez 2008; the primary determinant. Brief mention Hafner-Burton and Tsutsui 2005). should be made of the very real capacity Acculturation can be contrasted with a constraints that many governments face when more fundamental form of socialization, they try to comply with their international often referred to in the literature as normative legal obligations. Vast swathes of interna- persuasion. Persuasion depends on the power tional law, of course, do not typically encoun- of argumentation and deliberation as distinct ter capacity constraints: nearly all of modes of social interaction which when suc- customary international law requires states to cessful changes what an actor values and recognize principles (the 12 mile territorial sometimes even his or her very identity limit from one’s coastline) or to refrain from (Risse 2000; Johnston 2001). Jeffrey Checkel particular actions (genocide), but by its nature defines persuasion as “a social process of makes no demands that large numbers of interaction that involves changing attitudes states have the capacity to respect. Much about cause and effect in the absence of overt treaty law (the “first generation” of human coercion” (Checkel 2001). He argues that rights that limit government interference persuasion is more likely to play an impor- with free expression spelled out in the tant role in explaining compliance behavior International Covenant on Civil and Politic when elites do not have deeply held priors, Rights; the requirement established under the and they are therefore open to new ways of auspices of the WTO to reduce import quotas) thinking about issues. is of the same quality. Where international Whether because of their persuasive func- law calls for governments to refrain from tion or their information-providing function particular policies, their capacity to comply (or both), constructivists often agree with is usually not at stake. rational theorist that pressures applied by International law appears to have become (often transnational) civil society tend to increasingly demanding over time – in terms pressure or persuade governments to comply of the bureaucratic capabilities, technical with international legal standards and obliga- sophistication, and resource base needed to tion. Sally Merry’s transnational ethnography comply. Compliance with international envi- of the role of transnational actors provides a ronmental requirements is a clear example. rich description of how the process of persua- Accordingly, early studies emphasized a lack sion and communication operates transna- of capacity as one of the most serious barriers tionally (Merry 2006). Transnational human for compliance with international environ- rights ideas become part of local social mental accords (Weiss and Jacobson 1998). movements and local legal consciousness Capacity constraints have also been important

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compliance hurdles in the provision of been borrowing from one another’s concep- positive rights such as basic health care for tual toolkits for years. That few any longer children, as required by the Convention feel obliged to declare an exclusive theoreti- on the Rights of the Child (Simmons 2009: cal affiliation has largely promoted theoreti- ch. 8). European law has long stressed the cal rigor, not undercut it. capacities of some states to “keep up” with their obligations. In a study of 6,300 viola- tions of European law, Tanja Börzel and her colleagues have found that bureaucratic inef- CONCLUSION ficiency helps to account for much of the variance in compliance (Börzel et al. 2010). Two broad theoretical approaches have done As international law becomes more demand- most to advance the study of international ing of state bureaucracies and resources – for law as a social science in the past decade: example, as norms shift from nonintervention constructivist theories and rationalist theories in the affairs of other states to a “responsibil- of rules and behavior. The former has its ity to protect” foreign civilians in humanitar- roots in the recognition that norms and norm- ian crises – we can expect capacity constraints governed behavior generally play an impor- to become an increasingly important expla- tant role in human relations, and that there nation for noncompliance. was no reason to think that this role should end abruptly at the water’s edge. The latter * * * grew out of the “neo-functional” theories of international institutions pioneered by Despite the temptation to contrast so-called Keohane in the 1970s. Both approaches have “ideational” theories with “rationalist” ones, given rise to a broad range of fruitful research the complementarities are striking. Like that has moved the theoretical but especially rationalists, constructivists recognize that empirical frontiers well beyond that of earlier reputation surely matters to governments and decades. Today, it is still possible to see the their constituencies, but reputational con- influence of these two areas of theorizing cerns themselves are hardly exogenously studies of international law and international given constructs; they are the result of intense relations, but the most interesting work draws socialization among state elites within a par- insights from both. ticular region (Lutz and Sikkink 2000). Game The literature on international law and theorists posit such concepts as “common international relations has developed both conjectures” that facilitate reciprocation, but theoretically and empirically in the past what are common conjectures but commonly decade. Theory has become less compart- shared assumptions about certain basic prin- mentalized even as it has become more ciples or beliefs about how the “game” rigorous. Empirical testing has gained a should be played (Morrow 2007)? Beth tremendous amount from decades of data Simmons explicitly combines both rational- collection by governments, nongovernmental ist (treaty as legal leverage) and constructiv- organizations, and teams of scholars. The ist (treaty as an educative device) approaches frontier of research now seems to be at the when she discusses the influence that ratified nexus of international law, international rela- human rights conventions may have on tions, and domestic politics and legal sys- domestic political organization and mobiliza- tems. New research is beginning to explore tion (Simmons 2009). Habermasian theories the globalization of law into domestic con- of communicative action (Risse 2000) have texts, but at the same time the differentiated something in common with the Chayes’ ways in which international rules are absorbed notion of “jawboning” (Chayes and Chayes and resisted by local political, social, reli- 1993). Theorists of law compliance have gious, and legal traditions. Another frontier

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for research is presented by the slow fading with the power individuals for war crimes. of the sharp distinction between international The new attitude seems to be that skepticism, law and more informal forms of international too, no less than “idealism,” has empirical governance. International governance is a burdens to bear. The past two decades have product of both interstate agreements but demonstrated the value of taking these also the myriad understandings, procedures, burdens seriously. and standards that develop between states and private actors and among private actors (operating in the shadow of states) them- selves. Not only can the pubic international NOTES law scholarship be faulted for being too state-centric, but scholars of “global govern- 1 For this position, many thought of him as an ance” should think about the international apologist for Nazi Germany. See the preface to The Twenty Years’ Crisis legal context in which private groups operate. 2 For example, despite his focus on international It is surprising during a time when interna- rules and norms, Robert Keohane’s work never tional law is flourishing that a recent collec- explicitly engaged international law until 1997 tion of essays on global governance had not (Keohane 1997) . For a review of the literature in a chapter, not a subheading, not even an international institutions that has been influenced by rational functionalism, see the chapter by Martin and index entry on international law (Avant et al. Simmons in this volume. 2010). 3 Case T-306/01 Yusuf and Al Barakaat v Council The most significant feature of the new and Commission [2005] ECR II-3533 and Case research is the pervasive assumption that T-315/01 Kadi v Council and Commission [2005] ECR legal institutions are worthy of scholarly II-3649. study. In international relations, space has opened up as realism has lost its near monop- oly position of decades past. Critical legal REFERENCES theory has also probably run its course, although it has left many valuable insights in Abbott, Kenneth W., Robert O. Keohane, Andrew its wake. This is not to say that there is not Moravcsik, Anne-Marie Slaughter, and Duncan some quite intelligent and insightful work in Snidal. 2000. “The Concept of Legalization.” these traditions. It is only to say that both of International Organization 54 (3):401–19. these approaches from very different ideo- Abbott, Kenneth W., and Duncan Snidal. 2000. “Hard logical perspectives failed to inspire young and Soft Law in International Governance.” International Organization 54 (3):421–56. researchers who could hardly square the dour Ackerman, Bruce. 1997. “The Rise of World messages of the law’s irrelevancy on the one Constitutionalism.” Virginia Law Review 83:771–97. hand and its essentially tragic nature on the Allee, Todd L., and Paul K. Huth. 2006. “Legitimizing other hand with what anyone with eyes could Dispute Settlement: International Legal Rulings as observe: actors from the largest to the small- Domestic Political Cover.” American Political Science est nations, in the regulation of everything Review 100 (02):219–34. from human rights to tax coordination; from Allee, Todd L., and Clint Peinhardt. 2010. “Delegating land mines to investment agreements were Differences: Bilateral Investment Treaties and turning to law or law-like instruments to nur- Bargaining over Dispute Resolution Provisions.” ture their identities and/or to achieve their International Studies Quarterly 54:1–26. objectives. International law was an empiri- Alter, Karen J. 2011. The Evolving International Judiciary. Annual Review of Law and Social Science cal reality that was not melting away, and 7 (1): 387-415. indeed seemed to enjoy a huge boost from Altman, Amnon. 2004. “Tracing the Earliest Recorded the end of the Cold War. Much needed Concepts of International Law: The Early Dynastic explaining – from the sprouting of regional Period in Southern Mesopotamia.” Journal of the trade agreements to a new global institution History of International Law 6 (2):153–72.

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