Research Handbook On The Politics Of International Law 1783473975, 9781783473977

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Research Handbook On The Politics Of International Law
 1783473975,  9781783473977

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JOBNAME: Sandholtz PAGE: 1 SESS: 2 OUTPUT: Thu Jan 19 15:13:53 2017

RESEARCH HANDBOOK ON THE POLITICS OF INTERNATIONAL LAW

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RESEARCH HANDBOOKS IN INTERNATIONAL LAW This highly original series offers a unique appraisal of the state-of-the-art of research and thinking in international law. Taking a thematic approach, each volume, edited by a prominent expert, covers a specific aspect of international law or examines the international legal dimension of a particular strand of the law. A wide range of sub-disciplines in the spheres of both public and private law are considered; from international environmental law to international criminal law, from international economic law to the law of international organisations, and from international commercial law to international human rights law. The Research Handbooks comprise carefully commissioned chapters from leading academics as well as those with an emerging reputation. Taking a genuinely international approach to the law, and addressing current and sometimes controversial legal issues, as well as affording a clear substantive analysis of the law, these Handbooks are designed to inform as well as to contribute to current debates. Equally useful as reference tools or introductions to specific topics, issues and debates, the Handbooks will be used by academic researchers, post-graduate students, practicing lawyers and lawyers in policy circles. Titles in this series include: Research Handbook on International Law and Terrorism Edited by Ben Saul Research Handbook on the Law Treaties Edited by Christian J. Tams, Antonios Tzanakopoulos and Andreas Zimmermann Handbook of Space Law Edited by Frans von der Dunk Research Handbook on International Law and Cyberspace Edited by Nicholas Tsagourias and Russell Buchan Research Handbook on Transnational Labour Law Edited by Adelle Blackett and Anne Trebilcock Research Handbook on Jurisdiction and Immunities in International Law Edited by Alexander Orakhelashvili Research Handbook on the Theory and Practice of International Lawmaking Edited by Catherine Brölmann andYannick Radi Research Handbook on the International Penal System Edited by Róisín Mulgrew and Denis Abels Research Handbook on Disasters and International Law Edited by Susan C. Breau and Katja L.H. Samuel Research Handbook on International Law and Natural Resources Edited by Elisa Morgera and Kati Kulovesi Research Handbook on the Politics of International Law Edited by Wayne Sandholtz and Christopher A. Whytock

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Research Handbook on the Politics of International Law

Edited by

Wayne Sandholtz John A. McCone Chair in International Relations, University of Southern California, USA

Christopher A. Whytock Professor of Law and Political Science, University of California, Irvine, USA

RESEARCH HANDBOOKS IN INTERNATIONAL LAW

Cheltenham, UK

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Northampton, MA, USA

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© The Editors and Contributors Severally 2017 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA

A catalogue record for this book is available from the British Library Library of Congress Control Number: 2016949985 This book is available electronically in the Law subject collection DOI 10.4337/9781783473984

ISBN 978 1 78347 397 7 (cased) ISBN 978 1 78347 398 4 (eBook)

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Contents

List of figures List of contributors Table of cases Table of legislation

vii viii x xv

1 The politics of international law Wayne Sandholtz and Christopher A. Whytock PART I

1

LAW, POLITICS AND INSTITUTIONS

2 Compliance: actors, context and causal processes Courtney Hillebrecht 3 The effectiveness of international law and stages of governance Rachel Brewster 4 International law in domestic courts David L. Sloss and Michael P. Van Alstine 5 Treaty law and national legislative politics Kevin L. Cope 6 Modes of domestic incorporation of international law Pierre-Hugues Verdier and Mila Versteeg 7 Regime complexes as governance systems Benjamin Faude and Thomas Gehring PART II

27 55 79 116 149 176

SITES OF GOVERNANCE

8 The power of the implementers: global financial and environmental standards Walter Mattli and Jack Seddon 9 The European Court of Human Rights and the politics of international law Mikael Rask Madsen 10 The law and politics of WTO dispute settlement Gregory Shaffer, Manfred Elsig and Sergio Puig 11 The politics of international intellectual property law Susan K. Sell

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227 269 307

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vi Research handbook on the politics of international law

12 Non-state actors and human rights: legalization and transnational regulation Suzanne Katzenstein 13 The ‘war’ on terror and international law Jordan J. Paust 14 An emerging international legal architecture for cyber conflict William C. Banks 15 Who runs the Internet? Anupam Chander 16 Politics and law in international environmental governance M.J. Peterson Bibliography Index

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336 366 391 418 443

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Figures

8.1 Types of collaborative implementation and power implications 8.2 Examples of collaborative implementation corresponding to the theory’s conjectures 9.1 Judgments delivered (1960–1989) 9.2 Cases by country (1975–1989) 9.3 Judgments delivered (1990–2014) 10.1 Profiles of WTO Appellate Body Members 10.2 Participants and third participants in panels and appeals (1995–2013)

215 216 243 245 251 280 293

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Contributors

William C. Banks is the Board of Advisors Distinguished Professor of Law, Professor of Public Administration and International Affairs at the Maxwell School of Citizenship and Public Affairs, and the Director of the Institute for National Security and Counterterrorism at Syracuse University. Rachel Brewster is Professor of Law at the Duke University School of Law. Anupam Chander is the Martin Luther King, Jr. Professor of Law and Director of the California International Law Center at the University of California, Davis School of Law. Kevin L. Cope is a Ph.D. candidate in the Department of Political Science and Grotius Research Scholar at the University of Michigan, and Research Assistant Professor of Law, University of Virginia School of Law. Manfred Elsig is Professor of International Relations and Deputy Managing Director of the World Trade Institute of the University of Bern. Benjamin Faude is a Research Fellow in the Global Governance Research Unit at the Berlin Social Science Center. Thomas Gehring is Professor of International Politics at the Faculty of Social Sciences, Economics and Business Administration and Chair of International Relations at Otto-Friedrich University of Bamberg. Courtney Hillebrecht is Associate Professor in the Department of Political Science at the University of Nebraska-Lincoln. Suzanne Katzenstein is Project Director at the Human Rights Center and Research Scholar at the Kenan Institute for Ethics at Duke University. Mikael Rask Madsen is Professor of Law at the University of Copenhagen and Director of iCourts – The Danish National Research Foundation’s Centre of Excellence for International Courts. viii

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Contributors ix

Walter Mattli is a Fellow in Politics at St. John’s College and Professor of International Political Economy in the Department of Politics and International Relations at the University of Oxford. Jordan J. Paust is the Mike and Teresa Baker Law Center Professor of International Law at the Law Center of the University of Houston. M.J. Peterson is Professor of Political Science at the University of Massachusetts, Amherst. Sergio Puig is Associate Professor of Law and Director of the International Economic Law and Policy Program at the University of Arizona James E. Rogers College of Law. Wayne Sandholtz is the John A. McCone Chair in International Relations and Professor in the School of International Relations and Gould School of Law at the University of Southern California. Jack Seddon is a Max Weber Fellow at the European University Institute, Florence, Italy. Susan K. Sell is Professor of Political Science and International Affairs at the School of Regulation and Global Governance at Australian National University. Gregory Shaffer is the Chancellor’s Professor of Law and Director of the Center on Globalization, Law, and Society at the University of California, Irvine. David L. Sloss is Professor of Law at Santa Clara University School of Law. Michael P. Van Alstine is Professor of Law and Co-Director of the International and Comparative Law Program at the University of Maryland Francis King Carey School of Law. Pierre-Hugues Verdier is the E. James Kelly, Jr. Class of 1965 Research Professor of Law at the University of Virginia School of Law. Mila Versteeg is Professor of Law and Director of the Human Rights Program at the University of Virginia School of Law. Christopher A. Whytock is Professor of Law and Political Science at the University of California, Irvine.

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Table of cases

DOMESTIC CASES Germany Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] 7 September 2011, docket number 2 BvR 987/10 ........................................................... 157 Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] 28 February 2012, docket number 2 BvE 8/11 ............................................................... 157 Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] 18 March 2014, docket number 2 BvR 1390/12 ......................................................... 157 German Consular Notification Case, F v T [2006] 2 BvR 2115/01, ILDC 668 (Federal Constitutional Court) ................................................................... 109 Varvarin Bridge Case [2006] BGHZ 166, 384, ILDC 887 (DE 2006) (Federal Supreme Court) ............................................................................................ 91

United Kingdom Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2006] UKHL 26 ................................................................................................................. 88 M and Another, in re [2007] UKHL 55 ................................................................. 97 Milor v British Airways Plc [1996] QB 702, 706 .................................................. 99 R v Jones [2006] UKHL 16, [2007] 1 AC 136 ..................................................... 162 Sidhu v British Airways Plc [1997] AC 430, 443 ................................................ 100

United States Abbott v Abbott [2010] 560 US 1 ............................................................ 96, 98, 101 Al-Bihani v Obama, 619 F.3d 1, 20 (D.C. Cir. 2010) ........................................... 112 Baah v Virgin Atlantic Airways Ltd, 473 F. Supp. 2d 591, 593 (SDNY 2007) ....... 94 Baker v Carr [1962] 369 USC 186 ........................................................................ 82 Belcher-Robinson, LLC v Linamar Corp, 99 F. Supp. 2d 1329, 1338-1339 (M.D. Ala. 2010) .................................................................................................... 99 Breard v Greene [1998] 523 US 371 ..................................................................... 96 Cherokee Tobacco Case, The [1870] 78 US 616 ................................................. 160 El Al Israel Airlines v TsuiYuan Tseng [1999] 525 US 155, 168 ........................... 98 Freedom to Travel Campaign v Newcomb, 82 F.3d 1431 (9th Cir. 1996) ............ 112 Genpharm Inc v Pliva-Lachema a.s, 361 F. Supp. 2d 49, 59-61 (EDNY 2005) ..... 99 Goldwater v Carter 481 F.Supp 949 (DDC 1979) ............................................... 156 Graham v Florida [2010] 560 US 48 ................................................................... 110 Hanwha Corp v Cedar Petrochemicals, Inc, 760 F. Supp. 2d 426, 430 (SDNY 2011) ............................................................................................................ 94 Hosaka v United Airlines, Inc, 305 F.3d 989, 997 (9th Cir. 2002) ......................... 99

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Table of cases xi INS v Aguirre-Aguirre [1999] 526 US 415 ......................................................... 107 INS v Cardoza-Fonseca [1987] 480 US 421, 436-37 .......................................... 105 Jacobellis v Ohio [1964] 378 US 184 .................................................................. 408 Kiobel v Royal Dutch Petroleum Co [2013] 133 S. Ct. 1659 .............................. 113 Kisano Trade & Invest Ltd v Lemster, 737 F.3d 869, 875 (3rd Cir. 2013) .............. 99 Lawrence v Texas [2003] 539 US 558 ................................................................. 110 Lozano v Montoya Alvarez [2014] 134 S. Ct. 1224, 1235 ..................................... 96 Made in the USA Foundation v United States, 242 F.3d 1300 (11th Cir. 2001) ... 155 Marbury v Madison [1803] 5 US (1 Cranch) 137, 177 ........................................ 100 Matter of Kasinga, 21 I&N Dec 357 (BIA 1996) ................................................ 105 Missouri v Holland [1920] 252 US 416 ........................................................... 71, 72 Murray v Schooner Charming Betsy [1804] 6 US 64, 118 .................................. 106 NML Capital, Ltd v Republic of Argentina [2006] 2006 WL 1294853 (SDNY) ... 91 Ozaltin v Ozaltin, 708 F.3d 355, 359-60 (2nd Cir. 2013) ....................................... 94 Palm Bay Intern, Inc v Marchesi Di Barolo SPA, 659 F. Supp. 2d 407, 413-414 (EDNY 2009) ............................................................................................... 99 Pierre-Louis v Newvac Corp, 584 F.3d 1052, 1058 (11th Cir. 2009) ..................... 99 Renkel v United States, 456 F.3d 640, 644 (6th Cir. 2006) .................................. 112 Republic of Argentina v NML Capital, Ltd [2014] 134 S. Ct. 2250 ....................... 91 Roper v Simmons [2005] 543 US 551 ................................................................. 110 Sanchez-Llamas v Oregon [2006] 548 US 331 ..................................................... 96 Sosa v Alvarez-Machain [2004] 542 US 692 ...................................................... 113 United States v Curtiss-Wright Export Corp [1936] 299 US 304, 319 ................ 147 United States v Lindh, 212 F. Supp. 2d 541, 553-54 (ED Va. 2002) ..................... 112 United States v Noriega, 808 F. Supp. 791, 799 (SD Fla. 1992) .......................... 112 Yousuf v Samantar [2012] 699 F3d 763 (4th Cir) .................................................. 88

Others Aliendre v Mendoza [2006] No 84, ILDC 1522 (Civil Court of Appeal, Paraguay) ................................................................................................... 111 Appeal judgment [2008] Case No 05-40876, ILDC 2139 (Social Division, France) ....................................................................................................... 111 Ayub v Minister of Defence [1978] HCJ 606/78, 33 (2) PD 113 (Supreme Court of Israel) ......................................................................................................... 113 Baker v Canada [1999] 2 SCR 817 (Supreme Court of Canada) ......................... 108 Canada v Mugesera [2005] 2 SCR 100, ILDC 180 (Supreme Court of Canada) ...................................................................................................... 103 Cass, 27 mai 1971, Pas, 1971, p 886 (Belgium) .................................................. 161 Cour de Cassation le civ [7 December 2011] Bull civ I, No Q10–30.919 (France) ....................................................................................................... 99 Dorigo and President of the Council of Ministers [2011] (intervening) No. 113/2011 (Corte Costituzionale, Italy) ......................................................................... 90 Fang v Jiang [2007] NZAR 420, ILDC 1226 (High Court of New Zealand) ....... 103 Google Spain SL v Agencia Española de Protección de Datos Case C-131/12 [2014] ECLI 317 (Court of Justice of the European Union) ................................... 419

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xii Research handbook on the politics of international law Hong v United Airlines Incorporated (Dist. Ct. of Shanghai, First instance, 26 November 2001) 4 Gazette of Supreme People’s Court of the People’s Republic of China 141, [2000] Min Jing Chu No 1639, ILDC 780 (CN 2001) ............................................................................................................ 98 Minister of State for Immigration and Ethnic Affairs v Teoh [1995] 128 ALR 353, [1995] 183 CLR 273 (High Court of Australia) ........................... 108, 161, 163 National Corn Growers Association v Canada [1990] 2 SCR 1324, 1372-73 (Supreme Court of Canada) ........................................................................ 107 Netherlands, Ministry of the Interior and Kingdom Relations v Stichting Proefprocessenfonds Clara Wichmann [2010] LJN: BK4549, ILDC 1632 (Supreme Court, Netherlands) ................................................................... 111 Povey v Qantas Airways Limited [2005] HCA 33 (High Court of Australia) ...... 100 Presidency of the Council of Ministers v Markovic [2002] 85 Rivista di diritto internazionale 799 ILDC 293 (IT 2002) (Italy) ................................. 89, 90, 92 President of the Lima Bar Association v Ministry of Defence [2006] Exp No, 0012 2006-PI/TC, ILDC 671 (Constitutional Court of Peru) .............................. 109 Shining Path Case, Peru v Reinoso [2006] No 560-03, ILDC 670 (National Criminal Court, Peru) ................................................................................. 111 Smallmon v Transport Sales Ltd [2010] Civ.-2009-409-000363 (High Court of New Zealand) ..................................................................................................... 100 The Republic v High Court, Commercial Division, Accra [2009] No J5/43/2008 (Supreme Court of Ghana) ........................................................................... 91

EUROPEAN COMMISSION ON HUMAN RIGHTS Austria v Italy App no 788/60 (Commission Decision, 1961) ............................. 244 Cyprus v Turkey I-III App no 6780/74 and 6950/75 (1983) 2 DR 125, App no 8007/77 13 DR 85 ............................................................................... 244, 246 De Becker v Belgium App no 214/56 (Commission Decision, 1962) ................. 237 Denmark, France, Norway, Sweden, and the Netherlands v Turkey App no 9940– 9944/82 (1983) 35 DR 143 .............................................................. 244 Greece v United Kingdom App no 176/56 (Commission Decision, 1959) .......... 234 The Greek Case App no 3321/67, 3322/67, 3323/67 and 3344/67 (Commission Decision, 1969) .......................................................................... 236, 237, 238

EUROPEAN COURT OF HUMAN RIGHTS A, B and C v Ireland App no 25579/05 (ECtHR, 2010) ....................................... 262 Airey v Ireland App no 6289/73 Series A no 32 (ECtHR, 1979) .......... 242, 243, 246 Aksoy v Turkey App no 21987/93 (ECtHR, 1996) .............................................. 253 Animal Defenders v United Kingdom App no 48876/08 (2013) 57 EHHR 21 .... 262 Brogan and Others v United Kingdom App no 11209/84, 11266/84, and 11386/85 (1988) 11 EHRR 117 .................................................................................. 247 Burdov v Russia (No 1) App no 59498/00 (ECtHR, 2002) ................... 27, 28, 48, 52 Burdov v Russia (No 2) App no 33509/04 (ECtHR, 2004) ................... 27, 28, 48, 52

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Table of cases xiii Denmark v Turkey App no 34382/97 (ECtHR, 2000) ......................................... 253 Georgia v Russia (No 1) App no 13255/07 (ECtHR, 2009) ................................. 263 Georgia v Russia (No 2) App no 38263/08 (ECtHR, 2011) ................................. 263 Georgia v Russia (No 3) App no 61186/09 (ECtHR, 2010) ................................. 263 Golder v United Kingdom App no 4451/70 Series A no 18 (ECtHR, 1975) .................................................................................................. 241, 246 Handyside v United Kingdom App no 5493/72 Series A no 19 (ECtHR, 1976) .......................................................................................................... 241 Hauschildt v Denmark App no 10486/83 Series A no 158 (ECtHR, 1989) .................................................................................................. 245, 246 Hirst v United Kingdom (No 2) App no 74025/01 (ECtHR, 2005) .............. 260, 261 Ilasco and Others v Moldova and Russia App no 48787/99 (EctHR, 2004) ......... 259 Ireland v United Kingdom App no 5310/71 Series A no 25 (ECtHR, 1978) ....... 242, 243, 244 Jones v United Kingdom App no 34356/06 and 40528/06 (ECtHR, 2014) 116-49 ........................................................................................................ 112 Kjeldsen, Busk Madsen and Pedersen v Denmark App no 5095/71, 5920/72, and 5926/72 Series A no 23 (ECtHR, 1976) ...................................................... 241 Lawless v Ireland App no 332/57 Series B no 1 (ECtHR, 1960) ... 236, 237, 242, 246 Marckx v Belgium App no 6833/74 Series A no 31 (ECtHR, 1979) .................... 242 MGN Ltd v United Kingdom App no 39401/04 66 (ECtHR, 2011) .................... 261 National Union of Belgian Police v Belgium App no 4464/70 (1975) 1 EHRR 578 ............................................................................................................. 241 RMT v United Kingdom App no 31045/10, 366 (ECtHR, 2014) ........................ 262 Scoppola v Italy (No 3) App no 126/05 (ECtHR, 2012) ...................................... 261 Shamayev and Others v Georgia and Russia App no 36378/02 (EctHR, 2005) ... 259 Soering v United Kingdom App no 14038/88 Series A no 161 (ECtHR, 1989) ... 244 Sunday Times v United Kingdom App no 6538/74 Series A no 30 (ECtHR, 1979) .......................................................................................................... 244 Tyrer v United Kingdom App no 5856/72 Series A no 26 (ECtHR, 1978) .......... 242, 243, 246 Ukraine v Russia App no 20958/1 4 (ECtHR, 2014) ........................................... 263 Vinter and Others v United Kingdom App no 66069/09, 130/10, and 3896/10 (ECtHR, 2013) ........................................................................................... 260

INTERNATIONAL COURT OF JUSTICE Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) [2005] ICJ Rep 1 ................................... 374 Concerning United States Diplomatic and Consular Staff in Tehran (United States v Iran) [1980] ICJ Rep 3 ................................................................................ 371 Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4 ......................... 399 Democratic Republic of the Congo v Uganda [2005] ICJ Rep 168 ..................... 404 Iran v US [2003] ICJ Rep 161 ............................................................................. 402 Iron Rhine Railway Arbitration (Belgium v Netherlands) [2005] ICJ 373 PCA 5005 ........................................................................................................... 472

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xiv Research handbook on the politics of international law Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) [2012] ICJ 143 ......................................................................................................... 91 Nicaragua v US [1986] ICJ Rep 14 ............................................................. 402, 404 Prosecutor v Tadic [1999] Appeals Chamber Judgment ...................................... 402 Wall Street Advisory Opinion [2004] ICJ Rep 136 ............................................. 404

INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA The ‘ARA Libertad’ Case (Argentina v Ghana) (Provisional Measures, Order of 20 November 2012, 15 December 2012) ITLOS Reports ................................. 92

WORLD TRADE ORGANIZATION DECISIONS WTO, Declaration on the TRIPs Agreement and Public Health (2001) https:// www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.htm (accessed 19 September 2016) ................................................................... 319 WTO, European Communities – Measures Affecting the Approval and Marketing of Biotech Products – Reports of the Panel (29 September 2006) WT/ DS291/R, WT/DS292/R, and WT/DS293/R .............................................. 192 WTO, Report on Diversity in the WTO Secretariat (1 March 2010) WT/BFA/W/ 195 ............................................................................................................. 289 WTO, Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) (1994) LT/UR/A-2/DS/U/1 ...... 274, 275, 277, 279, 280, 281, 283, 284, 285

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Table of legislation Convention Relating to the Status of Refugees (opened for signature 28 July 1951, entered into force 22 April 1954) 189 UNTS 150 .... 105 General Agreement on Tariffs and Trade (GATT) (entered into force 1 January 1947) 55 UNTS 194 ... 67, 76, 198, 199, 200, 270-277, 279, 285, 286, 294, 299, 306, 313, 315, 474 Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 1997, entered into force 16 February 2005) 37 ILM 22 ....... 45, 77, 196, 197, 469, 488 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609 .............................. 378 Protocol Relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267 ............. 105 UN Convention against Transnational Organized Crime (entered into force 2003) 2225 UNTS 209 .............................. 470 UN Framework Convention on Climate Change (adopted 1992, entered into force 21 March 1994) 1771 UNTS 107 ...... 196, 197, 459, 488 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 .... 62, 100, 137, 152, 275, 373

INTERNATIONAL TREATIES Cartagena Protocol on Biosafety to the Convention on Biodiversity (adopted 29 January 2000, entered into force 11 September 2003) 2226 UNTS 208 .... 192, 195, 300, 474, 488 Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI ......... 370, 371, 400, 472, 473 Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 222 ......................................... 233 Convention on Biological Diversity (entered into force 29 December 1993) 1760 UNTS 79 .... 195, 484, 488 Convention on International Civil Aviation (7 December 1944, entered into force 4 April 1947) ....................................... 13 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (adopted 15 November 1965, entered into force 10 February 1969) 658 UNTS 163 .............................. 101 Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (opened for signature 18 March 1970, entered into force 7 October 1972) 23 UST 2555 ....................................... 101

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xvi Research handbook on the politics of international law

REGIONAL TREATIES Brighton Declaration (ECtHR, 2012) .............. 252, 259, 260, 267 Charter of the Committee of European Securities Regulators, Committee of European Securities Regulators, (2006) CESR/06-289c ........... 224 Organization of American States, Convocation of the Twenty-Third Meeting of Consultation of Ministers of Foreign Affairs, CP/ Res 796 (1293/01) (19 September 2001) ..................................... 372

EUROPEAN LAW Council Directive 2002/95/EU of 13 February 2002 Reduction of Hazardous Wastes (RoHS 1) [2002] OJ L37 ........................ 465 Council Directive 2008/1/EC of 29 January 2008 Integrated Pollution Prevention and Control Directive OJ L24 ................................... 465 Council Directive 2011/65/EU of 1 July 2011 Reduction of Hazardous Waste (RoHS 2) [2011] OJ L174 ...................................... 465 Council Directive 2012/19/EU of 4 July 2012 Waste Electrical and Electronic Equipment (WEEE) [2012] OJ L197 ...................... 465 Council Regulation 1907/2006 of 18 December 2006 Registration, Evaluation, Authorization, and Restriction on Chemicals [REACH] [2006] OJ L396/1 .............................. 465

DOMESTIC CONSTITUTIONS Basic Law for the Federal Republic of Germany ........................ 111, 124

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Constitution of Burundi ................. 156 Constitution of Ecuador ................. 473 Constitution of India ....... 109, 110, 132 Constitution of Portugal ................. 157 Constitution of the Argentine Nation .................................... 132 Constitution of the Federative Republic of Brazil ................................. 132 Constitution of the French Republic ................................ 154 Constitution of the Islamic Republic of Iran ........................................ 133 Constitution of the Republic of Belarus .................................. 154 Constitution of the Republic of Poland .................................... 161 Constitution of the Republic of South Africa ...... 109, 132, 133, 161, 162 Regeringsformen [Instrument of Government for Sweden] ....... 126 United States Constitution ............. 158

DOMESTIC LAW Executive Order 13491: Ensuring Lawful Interrogations (27 January 2009) 74(16) Federal Register 4893 ....................................... 388 28 USC s 1331 ................................. 94 8 USC s 1101(a)(42) ...................... 105 Bipartisan Congressional Trade Priorities and Accountability Act 2015 ................................ 156 Canada’s International Sale of Goods Contracts Convention Act of 1991 ......................................... 94 Child Abduction and Custody Act 1985 (UK) ........................................ 94 Communications Decency Act [1994] 47 USC s 230(f) ..................... 437 European Union Act 2011 (UK) ..... 156 Human Rights Act 1998 (UK) ....... 247, 260 Kenya’s International Interests in Aircraft Equipment Act of 2013 ......................................... 94

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Table of legislation xvii Military Order of November 13, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism (2001) 66(222) Federal Register 57833 ..................................... 369 Omnibus Trade and Competitiveness Act of 1988 (19 US Code 2901) ...................... 273, 312, 314 South African Medicines and Related Substances Control Amendment Act No 90 ............................... 318 The Sean and David Goldman International Child Abduction Prevention and Return Act of 2014 ......................................... 97

UN DOCUMENTS Declaration of the United Nations Conference on the Human Environment (1972) UN Doc A/Conf.48/14/Rev 1(1973) .................................. 472 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries [2001] UN Doc A/56/20 .................................. 398 International Law Commission, Fragmentation of International Law: Difficulties Arising from The Diversification and Expansion of International Law (13 April 2006) UN Doc A/CN.4/L.682 .......... 180 Letter from the Permanent Representative of the United States to the President of the UN Security Council (7 Oct 2001) UN Doc S/2001/946 .............. 371 Rio Declaration on Environment and Development (1992) UN Doc A/Conf.151/26 ...... 472, 473, 475, 476

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Secretary-General UN, Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident, Annex 1 ....... 404 UNCHR, 28th Session, On the Human Rights Situation in Iraq in the Light of Abuses Committed by the So-Called Islamic State in Iraq and the Levant and Associated Groups, Report to the UNHRC (13 March 2015) UN Doc A/HRC/ 28/18 ...................................... 379 UNCHR, Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework. United Nations Human Rights Office of the High Commissioner (16 June 2011) UN Doc HR/PUB/11/04 ........ 347 UNGA Res 2625 (XXV) (1971) 25 GAOR Supp 18 122; 65 AJIL 243 ......................................... 473 UNGA Res 51/229 (11 April 1997) UN Doc A/RES/51/869 ......... 466 UNGA Res 56/183 (31 January 2002) UN Doc A/RES/56/183 ......... 430 UNGA Res 59/32 (1 December 2004) UN Doc A/RES/59/32 ........... 235 UN Human Rights Council, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston: Study on Targeted Killings, (28 May 2010) UN Doc A/HRC/1424/Add.6 ....... 373 UN Human Rights Council, Report of the Special Rapporteur on the Promotion and Prevention of the Right to Freedom of Opinion and Expression (17 April 2013) UN Doc A/HRC/23/40 ................. 367 UNSC Res 1368 (12 September 2001) UN Doc S/RES/ 1368 ............................... 371, 403

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xviii Research handbook on the politics of international law UNSC Res 1373 (28 September 2001) UN Doc S/RES/ 1373 ............................... 371, 403 UNSC Res 2170 (15 August 2014) UN Doc S/RES/2170 ..... 379, 380 UNSC Res 2178 (24 September 2014) UN Doc S/RES/ 2178 ............................... 377, 380 UNSC Res 2199 (12 February 2015) UN Doc S/RES/2191 ..... 377, 380 World Summit on the Information Society, Tunis Agenda for the Information Society, (Tunis, 18 November 2005) WSIS-05/ TUNIS/DOC/6(Rev. 1)-E ...... 430

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WORLD INTELLECTUAL PROPERTY ORGANIZATION WIPO, Proposal by Argentina and Brazil for the Establishment of a Development Agenda for WIPO (2004) WO/GA/31/11 ............ 320 WIPO, Provisional Committee on Proposals Related to a WIPO Development Agenda (PCDA), Fourth Session (11–15 June 2007) (2007) http://www.wipo.int/ipdevelopment/en/agenda/pcda07_ session4.html ......................... 320

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1. The politics of international law Wayne Sandholtz and Christopher A. Whytock

Law structures politics and politics permeate law. The domain of politics and the realm of law are so intermeshed that any attempt to locate the boundary between them would be fruitless. Even the intuitive distinction between domestic and international politico-legal systems breaks down under scrutiny.1 Domestic orders may be on average more legalized, and international relations may tend to be more subject to power politics. But sizeable zones of law exist in international relations (the European Union, the World Trade Organization) and life in a fiercely repressive autocracy (Argentina in the late 1970s) is as violent as ‘anarchic’ international relations are sometimes imagined to be. In domains from trade to human rights, and even in war, international legal norms affect the choices that actors make, in ways that are not simply reducible to the effects of power. In short, the relationship between politics and international law is not fixed. To the contrary, the relationship varies depending on the context, and the factors shaping it are not reducible to the traditional distinction between domestic systems and international systems. The lack of a fixed relationship between politics and international law makes it difficult to generalize about politics and international law. This is not to say that general theorizing has been unproductive. Such work has generated considerable insights.2 The most familiar theoretical perspectives – broadly classified as realism, liberalism and constructivism – capture important dimensions of international law and politics. The problem is not that the broad theoretical frames are wrong, the problem is that they are all right, at least for some stages of the governance 1

Wayne Sandholtz and Alec Stone Sweet, ‘Law, Politics, and International Governance’ in Christian Reus-Smit (ed), The Politics of International Law (Cambridge University Press 2004); Christopher A. Whytock, ‘Thinking Beyond the Domestic-International Divide: Toward a Unified Concept of Public Law’ (2004) 36 Georgetown Journal of International Law 155. 2 E.g., Jeffrey L. Dunoff and Mark A. Pollack (eds), International Law and International Relations: Synthesizing Insights from Interdisciplinary Scholarship (Cambridge University Press 2013).

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process, in some systems of governance, some of the time. These theories alert us to important variables and relationships. But they cannot be tested in any comprehensive way, and, so far, there does not appear to be any way to adjudicate among them empirically. This volume, then, is not organized around the ‘-isms’. Instead, this volume is motivated by the central premise that the relationship between politics and law varies in important ways depending on the sites where the relationship unfolds. The challenge is to demarcate these sites and to explain the relationship between politics and law at these different sites of interaction. As our context-specific understanding improves, it may one day be fruitful to theorize more generally about the factors that shape the relationship between law and politics. In our view, however, at this stage it is probably more fruitful to focus on ‘mid-range theorizing’ that helps to bring intellectual order to the politics of international law in both its fundamental processes and in specific substantive domains.3 As explained in more detail below, we believe that a promising path toward useful mid-range theory is comparative analysis of the relationship between law and politics at different stages of governance and in different governance systems. In this introductory chapter, we first present the framework for comparative research in politics and international law that we propose, and around which the contributions to this volume are organized. We then draw out some of the broader implications of our framework. The chapter concludes with an overview of the contributions to the volume.

1. SITES OF INTERACTION BETWEEN INTERNATIONAL LAW AND POLITICS There are diverse sites of interaction between law and politics. Our central premise is that the nature, causes and effects of these interactions, and the relative influences of law and politics on outcomes, vary across these different sites. Our intuition is that this diversity lends itself more to comparative analysis than to general theorizing. Therefore, this volume takes a comparative approach. Our units of analysis are two-fold: stages of governance and governance systems. The stages of a governance process include rulemaking, interpretation, decision-making, implementation, and rule change. Governance systems are ‘social mechanisms for 3 Gregory Shaffer and Tom Ginsburg, ‘The Empirical Turn in International Legal Scholarship’ (2012) 106 The American Journal of International Law 1, 1.

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constructing rules and for applying them to concrete situations’,4 typically with the aim of facilitating or guiding collective action. We argue that interactions between law and politics may vary in important ways both (1) across different stages of governance within particular governance systems and (2) across different governance systems. One of the promises of comparative socio-legal studies is that it can reveal ‘how cross-national differences in law or legal institutions affect relatively similar social functions or types of enterprise’.5 Comparative analysis, we suggest, can offer useful insights not just about law and legal institutions at the domestic level (comparative law) but also at the international level. A recent article in the American Journal of International Law notes a ‘renewed interest’ in ‘[t]he use of comparative approaches in international law’.6 The piece calls for further development of comparative international law, whose objective is described as ‘identifying, analyzing, and explaining similarities and differences in how actors in different legal systems understand, interpret, apply, and approach international law’.7 The key dimension of comparison is cross-national, focusing on ‘similarities and differences’ across states and how they engage and interact with international law.8 We likewise advocate comparative analysis of the relationship between politics and law, but across stages of governance and systems of governance, both domestic and international, not just cross-nationally. Such an approach can improve our understanding of how politics influences law, how law mediates politics, and how law and politics together shape governance. In a similar spirit, Gehring and Faude call for comparative research on international regime complexes,9 and Halliday and Shaffer call for the comparative study of transnational legal orders.10 The study of the politics of international law has much in common with comparative legal studies because both search for phenomena and 4

Sandholtz and Sweet (n 1). Robert A. Kagan, ‘What Socio-Legal Scholars Should Do When There Is Too Much Law to Study’ (1995) 22 British Journal of Law and Society 140, 145. 6 Anthea Roberts and others, ‘Comparative International Law: Framing the Field’ (2015) 109 American Journal of International Law 467, 468. 7 ibid 469. 8 ibid 473. See also the related articles in the same issue. 9 Thomas Gehring and Benjamin Faude, ‘The Dynamics of Regime Complexes: Microfoundations and Systemic Effects’ (2013) 19 Global Governance 119, 128. 10 Terence C. Halliday and Gregory Shaffer (eds), Transnational Legal Orders (Cambridge University Press 2015). 5

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patterns that are at work in diverse settings. For cross-national comparativists, variation manifests itself across states. For scholars of the politics of international law, variation occurs across different stages of governance and different systems of governance. 1.1 Variation across Stages of Governance The contributions to Part I focus on the interactions between law and politics at five different stages of the governance process. To understand how the relationship between politics and law varies across different stages of governance, it is important to identify the actors involved at each stage, their interests and values, and their power and resources. Each stage is characterized by contestation. We are not suggesting that the five stages of governance should necessarily be the focus of separate research agendas. In the spirit of comparativism, most research will probably combine perspectives on, and questions about, these different stages. 1.1.1 Rulemaking The first stage of governance is rulemaking. Rulemaking may be formal or informal. Formal rulemaking may have several distinct aspects, including agenda setting, rule proposals, negotiation, deliberation and adoption. However, rulemaking may also be informal, as is the case with custom (including customary international law), which arises from the practice of actors. Scholarship on the rational design of law and legal institutions provides important insights on formal rulemaking, but is less useful for understanding informal rulemaking processes. Whether rulemaking is formal or informal, this stage of governance is political to the extent that different actors’ power, interests and values influence the rulemaking process and are reflected in the resulting rules. Yet the rulemaking stage is also legal to the extent that pre-existing legal rules govern the rulemaking process itself or impose limits on acceptable rulemaking outcomes, and to the extent the rules made are legally binding, according to the applicable rules of recognition. The focus on this stage of governance roughly corresponds to one of the central research agendas of socio-legal studies proposed by Kagan, in which law and institutional design are the phenomena to be explained, the ‘dependent variables’.11 Recent work has focused on the ‘rational design’ of legal institutions. In this perspective, actors collectively arrive at the optimal mix of precision, obligation and delegation given the 11

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nature of the problem to be solved, the number of actors and other factors.12 But other bodies of research offer different views of the emergence of new norms and their institutionalization. These include models of transnational networks, ‘boomerang’ effects and pressure ‘from above and below’.13 Epistemic communities and transjudicial dialogue likewise affect the shape and substance of legal regimes,14 as do persuasive politics in speech communities.15 In other words, the problem of constructing politico-legal institutions has attracted innovative scholarship along a number of productive lines. 1.1.2 Interpretation A second stage of governance that is a distinct site of interaction between law and politics – a stage subsequent to the making of a rule – is interpretation of that rule. There are three varieties of interpretive issues, all of which may be highly contested for a particular rule: legal obligation, legitimacy and meaning. + Legal Obligation: Is a purported norm legally binding (that is, does it impose a legal obligation)? This contestation is often existential in international law: the issue is often whether a purported rule of customary international law exists at all. Generally, contestation over the legally binding character of a rule unfolds in terms of the

12

Kenneth W. Abbott and others, ‘The Concept of Legalization’ (2000) 54 International Organization 401; Barbara Koremenos, Charles Lipson and Duncan Snidal, ‘The Rational Design of International Institutions’ (2001) 55 International Organization 761. 13 Alison Brysk, ‘From Above and Below: Social Movements, the International System and Human Rights in Argentina’ (1993) 26 Comparative Political Studies 259; Alison Brysk, From Tribal Village to Global Village: International Relations and Indian Rights in Latin America (Stanford University Press 2000); Margaret E. Keck and Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (Cornell University Press 1998); Thomas Risse-Kappen, Steve C. Ropp and Kathryn Sikkink, The Power of Human Rights: International Norms and Domestic Change (Cambridge University Press 1999). 14 Peter M. Haas, ‘Epistemic Communities and International Policy Coordination: Introduction’ (1992) 46 International Organization 1; Anne-Marie Slaughter, ‘Judicial Globalization’ (1999) 40 Virginia Journal of International Law 1103. 15 Thomas Risse, ‘Let’s Argue!: Communicative Action in World Politics’ (2000) 54 International Organization 1.

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applicable rules of recognition.16 In domestic systems, the rules of recognition are often embodied in a constitution, and in the international system they are largely embodied in the doctrine of ‘sources’ of international law. There can also be contestation over the rules of recognition themselves – that is, over what are the proper rules of recognition to use to determine which rules constitute binding law (for example, the debate over the relative importance of state practice and opinio juris in the formation of binding customary international law). Domestically, too, issues can arise about the validity and binding nature of particular rules (for example, debates over the constitutionality of legislation or the domestic application of international law). Denying a rule’s legal status does not render it irrelevant to governance. Non-legally binding rules – sometimes called ‘soft law’ – may also play an important role in governance, even if they do not impose enforceable legal obligations. + Legitimacy: Even if a law is accepted as imposing a legal obligation, there can be contestation over the law’s legitimacy. There can be unjust laws, and in both domestic and international law there are frequently debates over whether particular rules (including legal rules) are just or legitimate. There has been important work on what makes rules and rulemaking processes legitimate or fair.17 The point here is simply that whether a law is just or legitimate (on process or substance grounds) is often contested, often to political ends and often with positions that depend on politics, but also with reference to the law’s consistency with other laws and non-legal norms and to the processes – often themselves legally defined – that produced the law. There has been relatively little theorizing on the contestation of legitimacy. Challenges to the legitimacy of a rule can accompany non-compliance or be deployed in efforts for legal change (see below). + Meaning: Language is imprecise. Therefore, the meaning of a rule – whether it is meant to apply to a particular situation and whether an actor’s behavior conforms to the rule – is often highly contested. Even if a law is accepted as legally binding and legitimate, there 16

H.L.A. Hart, The Concept of Law (2nd edition, Oxford University Press

1994). 17

Thomas M. Franck, The Power of Legitimacy Among Nations (Oxford University Press 1990); Tom R. Tyler, Why People Obey the Law (Princeton University Press 2006).

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can be disputes over its meaning and over interpretive methods – that is, the proper techniques for establishing a rule’s meaning.18 1.1.3 Decision-making A third stage of governance – and a third site of interaction between law and politics – is decision-making by the subjects of rules, that is, the actors whose behavior is governed by a rule. The subjects of a rule may be state or non-state actors, and often the subjects of a rule are not the same as, or at least more broadly defined than, the actors involved in the rulemaking stage of governance. States – through treaty making and custom – form rules to govern themselves, but of course many rules, domestic and international, are made to govern other actors. Decisions may be influenced by a logic of consequences, a logic of appropriateness, or both.19 Political factors, including a party’s power, interests and values, influence that party’s decision-making and the extent to which those decisions conform to rules. But so may legal factors, either because they set standards of appropriate behavior that correspond to the party’s identity, or because the party expects advantages to flow from following the legal rule or costs to result from violating it (whether in the form of reputation costs or coercively imposed sanctions). There are several plausible hypotheses about the relationship between the logic of consequences and the logic of appropriateness in decision-making: the clearer logic may dominate, major decisions may be based on one logic and refinements on the other, and decision-making may over time evolve from a logic of consequences to a logic of appropriateness with the growing normative force of a rule.20 The focus on this stage of governance roughly corresponds to a second research agenda identified by Kagan, which ‘treats law and legal decisions not as dependent but as “independent variables”’ with the goal being ‘not to explain why laws and legal decisions vary, but to discover and assess what effect legal processes … actually have on social life’.21 Perhaps especially with respect to the politics of international law – as compared to the study of domestic legal systems or comparative public law – there is sometimes a tendency to view law and legal institutions simply as outcomes (dependent variables) to be explained. Looking at 18

Matthew Adler, ‘Interpretive Contestation and Legal Correctness’ (2012) 53 William and Mary Law Review 1115. 19 James G. March and Johan P. Olsen, ‘The Institutional Dynamics of International Political Orders’ (1998) 52 International Organization 943. 20 ibid. 21 Kagan (n 5) 144.

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international law as an explanatory variable is equally important. Some political scientists and international law scholars do argue the contrary, that international law generally is only an effect and rarely a cause of state behavior.22 Most students of the politics of international law are probably not prepared to adopt that position, and there are powerful theoretical arguments and empirical support for rejecting it.23 Research on compliance24 and internalization25 fit under the rubric of the effects of international law and legal processes. And the growing body of empirical research on the effects of international human rights treaties on states’ human rights performance has similarly contributed to the development of this research agenda.26 The perspective on international law as an independent variable, in order to identify and explain its influences on actors and political outcomes, should infuse each of the first two research agendas. The baseline expectation is probably that powerful actors shape legal regimes and institutions to favor their interests. Power clearly does affect the design of international legal institutions. But where the design and 22 Jack L. Goldsmith and Eric A. Posner, The Limits of International Law (Oxford University Press 2005); John J. Mearsheimer, ‘The False Promise of International Institutions’ (1994) 15 International Security 5. 23 Robert O. Keohane and Lisa L. Martin, ‘The Promise of Institutionalist Theory’ (1995) 20 International Security 39; Andrew T. Guzman, How International Law Works: A Rational Choice Theory (Oxford University Press 2008); Beth A. Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (Cambridge University Press 2009). 24 Abram Chayes and Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Harvard University Press 1995); George W. Downs, David M. Rocke and Peter N. Barsoom, ‘Is the Good News about Compliance Good News about Cooperation?’ (1996) 50 International Organization 379; Beth A. Simmons, ‘Compliance with International Agreements’ (1998) 1 Annual Review of Political Science 75. 25 Chayes and Chayes (n 24); Harold Hongju Koh, ‘Transnational Legal Process’ (1996) 75 Nebraska Law Review 181; Harold Hongju Koh, ‘Internalization Through Socialization’ (2005) 54 Duke Law Journal 975. 26 Oona A. Hathaway, ‘Do Human Rights Treaties Make a Difference?’ (2002) 111 Yale Law Journal 1935; Todd Landman, Protecting Human Rights: A Comparative Study (Georgetown University Press 2005); Eric Neumayer, ‘Do International Human Rights Treaties Improve Respect for Human Rights?’ (2005) 49 Journal of Conflict Resolution 925; Emilie M. Hafner-Burton and Kiyoteru Tsutsui, ‘Justice Lost! The Failure of International Human Rights Law To Matter Where Needed Most’ (2007) 44 Journal of Peace Research 407; Simmons (n 23); Wayne Sandholtz, ‘Treaties, Constitutions, Courts, and Human Rights’ (2012) 11 Journal of Human Rights 17.

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construction of legal rules and institutions are concerned, the nature and exercise of power are also shaped in part by the context of law. Two points are apropos. First, efforts to devise new legal norms and regimes do not take place in a law-free environment. Existing international legal norms, principles and institutions shape every new law-building project, from the framing of proposed rules to the structuring of the regimes that embody them. Though powerful actors will inevitably influence such projects, they do not somehow escape the existing framework of treaties, custom and organizations. This is true even for law-making in entirely new domains, like the use of space. When the first treaties regarding human activity in space emerged in the 1960s, there was no previously existing body of space law. But the treaties borrowed principles – like the ‘common heritage of mankind’ – from existing areas of international law. Second, even powerful actors need to frame proposed legal norms not as serving narrow or particular interests but as general rules that address common interests or shared challenges. The main approaches to identifying the characteristics that distinguish legal norms from other kinds of norms, or the features that confer legitimacy on systems of law,27 all recognize that legal rules must be abstracted from underlying power relations. In short, studies of the design and construction of international legal rules and institutions must be sensitive not just to the role of power in shaping those institutions, but also to the effects of law in channeling and mediating power. Similarly, power will be a central variable in the analysis of international law processes. The baseline expectation is, of course, that states and other actors will deploy power to bend legal processes, within international law institutions, to their advantage. But given that legal institutions and processes can also shape the exercise of power, we should not lose sight of the reverse question: how, and to what extent, do international law and legal institutions channel and mediate the effects of power? The more developed international rules and institutions are, the more politics should move from the direct exertion of material power toward other modes of politics, whether those are based on strategic action, pluralist politics (mobilizing winning coalitions), diffusion of knowledge and ideas or communicative rationality.

27 Lon L. Fuller, The Morality of Law (Yale University Press 1964); Joseph Raz, The Concept of a Legal System: An Introduction to the Theory of Legal System (Clarendon Press; Oxford University Press 1980); Franck (n 17); Hart (n 16).

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1.1.4 Implementation A fourth site of interaction between law and politics is implementation. At this stage, the focus moves from the decisions of the subjects of rules to how others respond to those decisions. These responses may include legal arguments, either to justify or criticize decisions, to which subjects may reply with their own justifications. They may include processes of adjudication or alternative dispute resolution processes designed to apply rules and in some cases produce legally binding outcomes. And they may include formal or informal sanctions. ‘[B]ecause norms by definition embody a quality of “oughtness” and shared moral assessment, norms prompt justifications for action and leave an extensive trail of communication among actors that we can study’.28 Thus, if a norm exists, we would expect to observe justificatory discourse on the part of actors, either ‘offensive’ (offered by an actor to rebut those who it believes are likely to claim its behavior violates a norm) or ‘defensive’ (offered by an actor after its behavior has already been criticized). The focus on implementation roughly corresponds to a third socio-legal studies research agenda identified by Kagan – what he calls the ‘legal process’ agenda – which seeks a better understanding of the behavior of legal institutions.29 1.1.5 Legal change A fifth site of interaction between law and politics is legal change. Law – including international law – is rarely, if ever, static. Yet our understanding of how and why politico-legal norms and institutions change is underdeveloped. We have some tools for explaining the genesis of new norms, involving norm entrepreneurs, the mobilization of political coalitions within and across states, and pressure on governments. We have frameworks for explaining the design of international legal institutions. But what happens once legal norms and institutions are in place? In important respects, the emergence of new norms and institutions is the beginning of the story, not the end. The efforts of people – and firms, NGOs, agencies and states – to live under rules, and their need to apply general norms to the ‘relentless particularity of experience’30 guarantee that rules are in a continuous, never-ending process of change. The incessant unfolding of change occurs as international actors adapt rules to 28 Martha Finnemore and Kathryn Sikkink, ‘International Norm Dynamics and Political Change’ (1998) 52 International Organization 887, 892. 29 Kagan (n 5) 143. 30 Harry Eckstein, ‘A Culturalist Theory of Political Change’ (1988) 82 American Political Science Review 789, 795.

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new factual situations, new challenges (climate change, digital communications) and new ideas. The processes and mechanisms of change are both legal and political. They are legal because they never take place outside a framework of existing norms. They are political because actors will seek to shape new rules, or reshape old ones, to favor their own interests. Processes of norm change are both pervasive and incompletely understood. The development of customary international law (CIL) exemplifies the ongoing dynamic of change in international law. International law scholars have tools and methods for assessing customary international law, which emerges out of the regular practice of states and their beliefs about the obligatory nature of those practices. Political scientists have paid far less attention to customary international law, largely focusing on the creation and effects of treaty law. Even among international law scholars, the contemporary relevance of CIL is somewhat controversial.31 We argue that customary international law captures a core dynamic in the broader politics of international law, namely, its constant evolution driven by practical experience and shaped by both political interests and normative structures. The ideal-typical process involves a cycle in which actions, either carried out or proposed, trigger disputes about the meaning and application of international rules.32 States and other actors put forward arguments as to the compatibility of the action with international norms. The outcomes of these disputes inevitably modify the rules themselves. In other words, disputes about norms are the motors of normative change, and international relations are a non-stop generator of such disputes. The degree to which disputes modify the rules depends on the responses of affected states and third-party states. Strong consensus – either that the action complied with or that it violated norms – generally means that the international norms in question become clearer, or more precise, or stronger (or all three). They do not remain static; they have changed as a result of the dispute. The modified rules are the normative framework in which the next round of actions and disputes will unfold. Likewise, when an action triggers a dispute in which states are more evenly divided as to the conformity of the act with international norms, the rules necessarily change. More balanced sides in a dispute are a sign that the behavior in question constitutes a challenge to the rule. A lower 31

See for example Goldsmith and Posner (n 22). Wayne Sandholtz, Prohibiting Plunder: How Norms Change (Oxford University Press 2007). 32

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degree of consensus generally leaves the norm more ambiguous, less precise, or weaker (or all three). If the balance of assessments leans toward finding the conduct acceptable, then the challenge to the rule is at least partially successful and the rule is in the process of being either modified or superseded by a new norm. If the balance tips toward finding the conduct impermissible, the rule has been affirmed but its status is weaker or more ambiguous. In either case, again, through the dispute the rules have changed. The modified norms then provide the context for subsequent actions and disputes.33 Every dispute over international norms, their meaning and application, produces changes in the rules. International law scholars have referred to this process of customary law formation as one of ‘continuous claim and response’.34 As Scharf puts it, ‘[o]ut of this process of claim and response, and third party reaction, rules emerge, are strengthened or degraded, or are superseded’.35 Everyday international relations constantly cast up such disputes and the cycle of international norm change is observable in a broad array of substantive domains.36 The cycle is, of course, intensely political. States involved in such disputes marshal normative arguments that support their preferred outcomes, and they deploy a variety of political and material incentives to influence the positions taken by other states and actors. It might seem that the cycle of change depicted here most clearly captures the essence of customary international law. But it is a dynamic that occurs in virtually every normative context. It unfolds in disputes over treaty law, as states contest the meaning and application of treaty provisions. When those disputes are handed to a court or tribunal for resolution, the cycle simply takes on its most formalized structure. In a court, the arguments are presented in terms that fit within established argumentation frameworks, and the process is structured by legal rules. But it is the same cycle of action, dispute and norm change leading to subsequent rounds of action and disputation. In short, the processes of norm change occur everywhere in international law. This fifth site of interaction between law and politics, then, is closely related to the first four. As we seek to explain the design and 33

ibid. Myres S. McDougal and Norbert A. Schlei, ‘The Hydrogen Bomb Tests in Perspective: Lawful Measures for Security’ (1955) 64 Yale Law Journal 648. 35 Michael P. Scharf, Customary International Law in Times of Fundamental Change: Recognizing Grotian Moments (Cambridge University Press 2013) 36. 36 Wayne Sandholtz and Kendall W. Stiles, International Norms and Cycles of Change (Oxford University Press 2009). 34

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construction of governance systems, the processes that operate within them, and the effects of those systems on behaviors and outcomes, we need to be attentive to the ways in which all of these affect the content, the strength and the clarity of international norms. 1.2 Variation across Governance Systems Just as interactions between law and politics may vary across different stages of the governance process within a particular governance system, these interactions may vary across different governance systems. Different systems of governance are demarcated by their subject matter, their scope, or both. Subject matter may be defined very broadly (for example, international peace and security37) or relatively narrowly (for example, international civil aviation38). Geographic scope may range from global (for example, the United Nations), to regional (for example, the European Union), to national (for example, the U.S. Federal Aviation Administration). Each contribution to Part II analyzes interactions between law and politics in a particular governance system, while focusing on one or more stages of the governance process in that system. As our discussion of governance systems suggests, we do not think it is helpful to categorically distinguish domestic governance systems from international governance systems when analyzing interactions between law and politics. Traditionally, legal scholars and political scientists have made precisely this distinction, based on a conception of domestic governance as hierarchically structured and international governance as anarchically structured. However, this structural distinction is misleading, because certain crucial aspects of domestic law (particularly, constitutional law and other branches of public law) also lack hierarchical enforcement mechanisms.39 This is not to deny differences between domestic and international systems of governance – but these differences are generally differences of degree, not kind.40 In fact, we believe that ‘the range of variation is as great within categories of domestic and international as between these categories’.41 The stages of governance we have identified are as much a part of domestic governance as 37

UN Charter art 1(1). Convention on International Civil Aviation (7 December 1944, entered into force 4 April 1947) preamble. 39 Whytock (n 1). 40 ibid 169. 41 Sandholtz and Sweet (n 1) 269. 38

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international governance, and thus can facilitate comparative analysis across the traditional domestic-international divide.42

2. BROADER IMPLICATIONS Beyond serving as a framework for analyzing the relationship between politics and international law, our approach has broader implications for understanding international law. First, our approach transcends the traditional – and in our view misleading – categorical distinction between the role of law in domestic and international politics. Second, our approach allows for a more nuanced and contingent understanding of the relationship between law and politics than debates about the primacy of politics (or law) typically produce. Third, our approach favors mid-range theorizing focused on the foundations of the relationship between law and politics in specific contexts. 2.1 Law and Politics beyond the Domestic-International Divide The ideal-typical contrast between domestic institutions that mediate power but international institutions that do not is overdrawn in three ways. First, on the domestic side, it ignores the wide variation among states in the degree to which legal institutions mediate and constrain power. In fact, power is virtually unconstrained in two types of states, entrenched autocracies and failed states. In the first, concentrated power is not checked by law and institutional counterweights. Autocratic leaders are constrained by the need to satisfy the constituencies (the army, for example, or the national police) whose support is necessary to stay in power. In failed states, competition among groups resembles anarchic international relations, only it is probably even more unrestrainedly violent. In 2012, 47 countries (24 percent of all states) were rated ‘not free’ by Freedom House.43 According to the Failed States Index for 2013, 16 countries around the world were either failed states or showed substantial risk of failure (scoring more than 100 on a 120-point scale).44 In other words, autocracies and failed states are not isolated exceptions. 42

Whytock (n 1). Freedom House, Freedom in the World (2013), accessed 10 September 2016 at http://www.freedomhouse.org/report-types/freedom-world. 44 Fund for Peace, The Failed States Index 2013 (2013), accessed 10 September 2016 at http://fsi.fundforpeace.org/rankings-2013-sortable. 43

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Second, by the same token, substantial portions of international relations are subject to institutions that make, interpret and apply legal rules. For instance, treaty-making negotiations and conferences are an institutional form devoted specifically to the law-making function. Lawyers and social scientists alike assess the politics of treaty negotiations and, more recently, the ‘design’ of international agreements.45 Studies of why states enter into treaty commitments are another relatively welldeveloped area of scholarship on the politics of international law-making.46 The interpretation function also occurs, increasingly, in islands of judicialized dispute resolution. The last two decades have seen a proliferation of international judicial bodies: the Project on International Courts and Tribunals lists 23.47 The emergence of the ad hoc criminal tribunals, the creation of the International Criminal Court (ICC) and the development of the regional human rights courts have generated a voluminous body of research on their law and politics. The Dispute Settlement System of the World Trade Organization (WTO) is fully judicialized and the subject of a virtual sub-discipline. Arbitration – between states, between private parties and between states and private parties – has also flourished, and lawyers and political scientists have turned their attention to the work of the International Center for the Settlement of Investment Disputes (ICSID) and transnational commercial arbitration. Enforcement likewise occurs in institutionalized contexts. At the global level, the United Nations Security Council authorizes enforcement activities, in the form of U.N. sanctions regimes (like that in place against Iran), as well as armed peace-making and peacekeeping missions. Regional organizations, like the African Union, the Economic Community of West African States (ECOWAS) and the North Atlantic Treaty 45

Darren G. Hawkins and others (eds), Delegation and Agency in International Organizations (Cambridge University Press 2006); Koremenos, Lipson and Snidal (n 12). 46 Oona A. Hathaway, ‘The Cost of Commitment’ (2003) 55 Stanford Law Review 1821; Jay Goodliffe and Darren G. Hawkins, ‘Explaining Commitment: States and the Convention against Torture’ (2006) 68 Journal of Politics 358; Oona A. Hathaway, ‘Why Do Countries Commit to Human Rights Treaties?’ (2007) 51 Journal of Conflict Resolution 588; James Raymond Vreeland, ‘Political Institutions and Human Rights: Why Dictatorships Enter into the United Nations Convention Against Torture’ (2008) 62 International Organization 65; Simmons (n 23). 47 Project on International Courts and Tribunals, Project on International Courts and Tribunals (2013), accessed 10 September 2016 at http://www.pictpcti.org.

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Organization (NATO) have also sponsored or participated in armed multilateral enforcement activities. A third reason that the domestic/international distinction is misleading is related to this question of enforcement. The stock argument for why international law is less effective than domestic law is that international law lacks what domestic law enjoys: centralized enforcement of legal rules. But as typically presented, this comparison mixes apples and oranges. On the international law side, the point is made that there is no higher authority above the state to enforce rules against it. On the domestic law side, the point is that there is a centralized system of law enforcement to enforce rules against individuals. Yet some of the most important branches of domestic law prescribe not the behavior of individuals, but the behavior of the state – and the state cannot be relied upon to enforce rules against itself. By definition, domestic public law – domestic law that prescribes appropriate state behavior, including most constitutional law (such as the law of individual rights, federalism and separation of powers) – suffers from the same lack of hierarchical enforcement that characterizes international public law.48 Therefore, explanations for the varying relationship between law and politics in domestic and international systems must look beyond the traditionally drawn distinction between structurally ‘anarchical’ international politics and structurally ‘hierarchical’ domestic politics. The foregoing considerations suggest not a dichotomy but rather a continuum that depicts the full range of variation in law and legal institutions.49 Rules can be more, or less, formal, precise and authoritative, and they may be more or less tied to organizational supports, including enforcement mechanisms. Because rules vary along these dimensions, the institutions that they define do also. At the left end of the continuum are institutional settings that are relatively informal, with imprecise rules that are not binding on actors, and where there are no centralized monitoring or enforcement mechanisms. (This is not to say that these settings lack rules: social existence of any kind is impossible without norms, even if the norms in place are relatively informal and imprecise.) At the right end of the continuum are institutional contexts (local, domestic or international) defined by rules that are highly formal, 48

Whytock (n 1). An institution is a set of interconnected rules. We use the terms ‘norm’ and ‘rule’ interchangeably. Both are standards of behavior for a given set of actors in a given social context. The distinction typically drawn between the two usually boils down to differing degrees of formality: norms are less and rules are more formal. 49

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specific and authoritative: these have the attributes that people associate with developed legal orders. International institutions would occupy different points on the spectrum.50 Some international institutions are defined by rules that are highly formal, specific and authoritative. The European Union (EU), for example, now resembles, in important respects, a ‘constitutionalized’, quasi-federal polity.51 The World Trade Organization (WTO) has similarly developed an important degree of formality, precision and authoritativeness. ‘International law,’ then, could not simply be placed as an undifferentiated unit on the continuum. In some domains, whether geographical like the EU or substantive like the WTO, international legal rules and processes are highly developed, and those institutions belong to the right on the continuum. Some parts of international relations in which the rules and institutions are informal, imprecise and minimally authoritative – classic balance of power systems, for instance – would be placed nearer the left. Still other areas of international law would be in between. This matters because politics tends to be a qualitatively different kind of activity within the framework of law than it is outside of it.52 2.2 The Contingent Nature of the Relationship between Law and Politics Our approach also moves beyond categorical assessments of the relationship between international law and politics by accommodating and providing a framework for understanding the nuanced and contingent nature of this relationship. Politics within the framework of law differ from politics outside of law because legal institutions mediate power and channel behavior. Under law, rules configure the political institutions through which further rules and policies are defined and carried out and disputes resolved. This is not a claim that law-based institutions tame power or nullify power differences. On the contrary: the rules generally reflect the interests of those actors with the greatest political power, and powerful actors are better able to obtain the outcomes they prefer through a society’s institutions. Law does not abolish the advantages of power. It 50 Alec Stone, ‘What Is a Supranational Constitution? An Essay in International Relations Theory’ (1994) 56 Review of Politics 441. 51 Eric Stein, ‘Lawyers, Judges, and the Making of a Transnational Constitution’ (1981) 75 American Journal of International Law 1; JHH Weiler, The Constitution of Europe (Cambridge University Press 1999). 52 Christian Reus-Smit, ‘Introduction’ in Christian Reus-Smit (ed), The Politics of International Law (Cambridge University Press 2004).

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does temper the exercise of power by requiring that it be exercised through institutions and by rule-defined processes. Institutions defined by legal rules moderate the raw exercise of power, and they do so at both the domestic and the international level. International law establishes frameworks of norms within which cross-border interactions of all kinds – from tourism to war – take place. The meaningful distinction, then, is not between domestic and international but rather between a greater or lesser role for law in mediating and channeling the exercise of power. In some ways, international politics at the right end of the continuum have more in common with functioning rule-of-law states (also at the right end of the continuum) than they have with the anarchic power politics (domestic and international) at the left pole. Still, in general, the median international politico-legal institution probably falls to the left of the median state on the continuum. Another way of putting this is that whereas the most highly functional international politico-legal institutions seem exceptional or unusual, the most dysfunctional states are those that appear anomalous or atypical. If politics within the framework of law differ qualitatively from politics outside it, then the relationship between politics and international law will shift as we move along the continuum toward greater legal institutionalization. The point is not to disentangle politics and law, to identify some behaviors or phenomena as ‘political’ and others as ‘legal’. The two are so enmeshed that it makes more sense to think about politico-legal institutions and the ways in which they operate differently as we move toward greater institutionalization of law. By ‘politics’ we mean modes of interaction by which actors seek to influence collective (or ‘public’) outcomes (standards, policies, rules). In politics, multiple modes of influence are possible, ranging from physical compulsion (or the threat of it), to the offering of material inducements, to the deployment of expertise (or knowledge), to persuasion. Law is both a set of rules and the processes for producing, modifying, interpreting and bringing about compliance with those rules.53 Legal rules differ from other kinds of rules (moral, technical) in that they are generated by legal processes. Legal process marks rules as legal. Within legal institutions,

53

Legal theorists have offered and debated various frameworks for identifying law and legal processes; see Franck (n 17); Fuller (n 27); Hart (n 16); Raz (n 27).

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argumentation frameworks establish boundaries for influence and persuasion,54 broadly defining the range of claims, arguments and reasons that are acceptable or legitimate. The more developed are legal institutions, the more influence will be exercised through persuasion within argumentation frameworks and the less through compulsion or material power. 2.3 Mid-Range Theory and Micro-Foundations The variegated nature of international law, with rules and institutions arrayed along the continuum from one pole to the other, makes generalizing difficult. In that respect, studying the politics of international law has a great deal in common with mid-range theorizing that characterizes much of the study of comparative politics. In comparative politics, the challenge is to draw general conclusions about states that vary widely in terms of their social, economic and political structures. What is the general theory that can explain politics in Brazil, Belgium and Burkina Faso? In the politics of international law, the same kind of challenge confronts efforts to account broadly for behaviors and outcomes in highly diverse domains and institutional arrangements – at different stages of the governance process or in different systems of governance. No general theory could explain the politics of international law in the WTO and with respect to drone strikes: indeed, no general theory is possible. Instead, research tends to focus on the ‘mid-range’, bounded in terms of the set of units to be analyzed or the scope of the phenomena to be explained. Similar strategies make sense for the politics of international law. The contributions to this handbook focus either on a particular stage of governance (rulemaking, interpretation, decision-making, implementation or legal change) or on a particular governance system (human rights, investment, the environment). A mid-range approach lends itself to identifying the distinct institutional and micro-level factors that influence the varying relationships between politics and law, and different stages of governance and in different governance systems. These are generally similar to those that students of comparative politics find useful across empirical domains and across analytical questions:

54

Alec Stone Sweet, ‘Path Dependence, Precedent, and Judicial Power’ in Martin Shapiro and Alec Stone Sweet (eds), On Law, Politics, and Judicialization (Oxford University Press 2002); Sandholtz and Sweet (n 1).

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1.

2.

3.

4.

Actors: Who are they and what are their interests, values, power and resources? How many actors are engaged in this domain and what are their relative capacities to exercise influence? Problems: What is the nature of the problem or challenge at the center of interactions? Is it competition over a fixed resource, like territory? Is it management of a common pool resource? Is it coordinating standards to stabilize ongoing interactions? Rules: What are the rules developed by these actors to govern their interactions in this problem domain? Again, rules vary in their specificity, formality and authoritativeness. Institutions: What are the institutional structures, created by the rules and inhabited by the actors, to generate new rules, interpret and adapt existing rules, and monitor or motivate compliance? To what extent do the institutions mediate or channel actors’ exercise of power and influence?

3. THE STRUCTURE OF THE BOOK In the chapters that follow, leading scholars explore variation in the relationship between politics and international law across different stages of governance and different governance systems. The chapters in Part I: Law, Politics and Institutions investigate variation across stages of governance from an institutional perspective. In Chapter 2, Compliance: Actors, Context and Causal Processes, Courtney Hillebrecht addresses the fundamental concept of compliance with international law. Hillebrecht argues that compliance is best understood as not only an outcome, but also a process, one with links to the different stages of governance. Hillebrecht identifies the domestic and international institutional actors in the compliance process and analyzes the relationships among them. She finds that while compliance is most obviously linked to the decision-making stage of governance, it is also linked in important ways to the rulemaking and implementation stages. Rachel Brewster, in Chapter 3, The Effectiveness of International Law and Stages of Governance, distinguishes the concept of effectiveness from the concept of compliance. Whereas compliance is the adherence of state action to international law, effectiveness refers to the causal impact of international law on policy. After specifying three types of effectiveness – ‘change effectiveness’, ‘optimal effectiveness’ and ‘policy effectiveness’ – Brewster analyzes the relationships between effectiveness and four stages of governance: rulemaking, decision-making, implementation and legal change. She shows that treaty effectiveness not only

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depends upon political processes for support and development, but also shapes and reframes domestic and international policy processes. In Chapter 4, International Law in Domestic Courts, David L. Sloss and Michael P. Van Alstine focus on a particular domestic institution: domestic courts. The chapter analyzes the role of domestic courts in the creation, interpretation, recognition, implementation and modification of international norms. Sloss and Van Alstine argue that this role varies not only across stages of governance, but also across three types of international norms: horizontal (state-to-state) norms, transnational (privateto-private) norms and vertical (state-to-private party) norms. They find that domestic courts rarely apply horizontal rules because they typically view them as ‘political’, not ‘legal’; they routinely apply transnational rules because they typically view them as ‘legal’ rather than ‘political’; and their receptiveness to vertical rules is mixed. Kevin L. Cope, in Chapter 5, Treaty Law and National Legislative Politics, turns his attention to the role of another domestic institution, one that has so far received relatively little attention in the study of international law: domestic legislatures. Cope’s central claim is that domestic legislatures play an important role in creating, interpreting and complying with international law. After analyzing legislatures’ formal influence on treaty law across several stages of governance, he develops a series of conjectures about how legislatures systematically influence international cooperation. In Chapter 6, Modes of Domestic Incorporation of International Law, Pierre-Hugues Verdier and Mila Versteeg draw on an original crossnational dataset to present a comparative analysis of the formal rules of domestic public law governing the relationship between international law and domestic law in more than 100 countries. They argue that these rules play a central role in allocating authority over international rulemaking and normative change, as well as interpretive, decision-making and implementation authority, among domestic political actors. Verdier and Versteeg make an important contribution by moving beyond the commonly used binary distinction between monist and dualist countries to uncover a wide variety of theoretically relevant dimensions of crossnational variation in the rules determining the domestic status of international law. Benjamin Faude and Thomas Gehring, in Chapter 7, Regime Complexes as Governance Systems, focus on ‘regime complexes’, which are defined as overlapping and non-hierarchical institutions that govern a particular issue-area. They argue that the emergence of regime complexes has influenced the interaction of international law and international politics at different stages of governance. They explain how regime

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complexes influence the making, changing and implementation of international law, and show how states not only strategically create and use the institutional overlap that characterizes regime complexes, but also participate in attempts to develop decentralized methods of interinstitutional coordination. The chapters in Part II: Sites of Governance investigate the relationship between politics and international law in a variety of substantive fields of governance. In Chapter 8, The Power of the Implementers: Global Financial and Environmental Standards, Walter Mattli and Jack Seddon examine a particular stage of governance, implementation, in two substantive fields, global financial regulation and environmental governance. They focus on a particular implementation strategy used by international regulators, ‘collaborative implementation’, which involves enlisting private standard setting bodies, non-governmental organizations and other partners that have the regulatory competence, operational capacity or legitimacy needed for effective regulatory implementation. Mattli and Seddon argue, however, that collaborative implementation can have the unintended consequence of shifting power and authority from the recognized international regulator to the partner. In Chapter 9, The European Court of Human Rights and the Politics of International Law, Mikael Rask Madsen analyzes the relationship between politics and international law at different stages of governance in an international court-centered governance system: the European human rights system, comprised of the European Convention on Human Rights and the European Court of Human Rights. Madsen brings a sociological perspective to the project, arguing that international politics is ‘a broader and pre-existing general social phenomenon’, and treating international law as ‘a particular social construct only available in certain domains and with varying rigor and power’. Emphasizing that the five stages of governance appear not as successive stages but rather as recurring themes and sites for interactions between politics and international law, Madsen traces how these interactions have evolved as the system has developed over time. In Chapter 10, The Law and Politics of WTO Dispute Settlement, Gregory Shaffer, Manfred Elsig and Sergio Puig examine the relationship between politics and international law in the World Trade Organization’s (WTO) dispute settlement system with a focus on the selection of rule interpreters, rule interpretation and compliance with dispute settlement rulings. Emphasizing that it is insufficient to study these stages in isolation, the authors analyze the interaction between these stages of governance. Although they view the WTO dispute settlement system as arguably the most legalized international governance system in the world,

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they find that politics nevertheless continues to play an important role across the system’s stages of governance. They conclude that ‘[t]he precise mix of law and politics will shift over time; both will remain, affect each other, and together affect outcomes’. In Chapter 11, The Politics of International Intellectual Property Law, Susan K. Sell explores the relationship between law and politics in the system governing intellectual property. She shows how actors have strategically framed intellectual property in different ways – as a public policy, a trade issue, a public health issue, a free speech and privacy issue and an investment issue – to gain the benefits of different institutions. In Chapter 12, Non-State Actors and Human Rights: Legalization and Transnational Regulation, Suzanne Katzenstein presents a comparative analysis of the relationship between politics and law in two governance systems in the field of human rights: the system governing state practice (which is a form of legalization) and the system governing corporate conduct (which is a form of transnational regulation). Focusing on the role of NGOs and firms at the rulemaking and decision-making stages of governance, she finds that in both systems, NGOs promote accountability of other actors and act as core catalysts for rulemaking. However, Katzenstein argues that the dominance of market incentives and higher levels of flexibility and ease of amendment in transnational regulation lead to different law-politics dynamics as compared with legalization. The next three chapters address governance in fields that have recently become highly salient. In Chapter 13, The ‘War’ on Terror and International Law, Jordan J. Paust discusses the system governing the use by states of armed force against non-state armed attacks and the treatment of captured persons, with a focus on interpretive claims made by states regarding the rules governing self-defense against non-state actors on foreign territory, the use of drones in connection with the exercise of that right, and detention and interrogation. In Chapter 14, An Emerging International Legal Architecture for Cyber Conflict, William C. Banks discusses the emerging system of governance for cyber conflict, arguing against an approach that depends too heavily on the United Nations Charter and the law of armed conflict. And in Chapter 15, Who Runs the Internet?, Anupam Chander provides an overview of how the Internet is governed, as well as some of the key controversies in both the procedure and substance of Internet governance. In Chapter 16, Politics and Law in International Environmental Governance, M.J. Peterson argues that three factors shape the relationship between law and politics in the field of international environmental governance: the ‘human-independent physical reality’ of the environment, the mismatch of ecological and political boundaries and the multi-scalar

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character of politics and law in environmental governance. She traces this relationship through the rulemaking, interpretation, decision-making, implementation and rule change stages of international environmental governance. The chapters in this volume confirm that there is no fixed relationship between law and politics in global governance. They show that this relationship varies across different stages of governance – rulemaking, interpretation, decision-making, implementation and legal change – and across different systems of governance. Together, these contributions are a first step toward the development of a comparative approach to the analysis of politics and international law.

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PART I LAW, POLITICS AND INSTITUTIONS

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2. Compliance: actors, context and causal processes Courtney Hillebrecht

In 2004, Anatoliy Tickhonovich Burdov filed a complaint against the Russian Federation at the European Court of Human Rights (ECtHR). Burdov, a Russian citizen, filed his petition against Russia because of the state’s failure to comply with a previous ECtHR judgment. The case of Burdov v Russia (No 2) illustrates the farthest reaches of international law: here was an individual effectively suing a state at an international court for failure to comply with that same court’s previous judgments, which arose out of the state’s failure to comply with the European Convention on Human Rights and Fundamental Freedoms.1 Burdov’s interactions with the European Court of Human Rights began in 2002, when he filed an initial petition against the Russian Federation for failure to enforce domestic legal decisions. Burdov participated in emergency operations following the Chernobyl nuclear plant explosion in 1986 and suffered a number of complications as a result of his exposure to the radioactive blast. Burdov’s work in response to the Chernobyl disaster entitled him to a set of social benefits, including financial assistance. Domestic courts confirmed his right to these claims, but these domestic rulings were never enforced. Frustrated by many years of domestic delays, Burdov took his case to the European Court of Human Rights. The ECtHR, in turn, found that the Russian Federation had failed to enforce domestic judicial decisions and had thereby violated the European Convention on Human Rights and Fundamental Freedoms. While the European Court of Human Rights can determine when a state has violated the European Convention on Human Rights and Fundamental Freedoms, it cannot specify the steps that a state needs to take to rectify the violations and comply with the Convention. That task is left to the Council of Europe’s Committee of Ministers. In response to the case of Burdov v Russia (No 1), the Russian authorities reported to the Committee of Ministers that they paid reparations, addressed similar cases, created a new indexing system for victims and publicized the 1

App no 33509/04 (ECtHR, 2004).

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European Court’s rulings.2 Pleased with these efforts, the Committee of Ministers found that Russia was in compliance with Article 46 §2 of the Convention, which requires states to execute the Court’s judgments. When the state’s payments to Burdov fell into arrears and officials again failed to enforce domestic courts’ rulings regarding Burdov’s benefits, Burdov again sought remedy at the European Court of Human Rights. This time around the Court dismissed Burdov’s second claim regarding his compensation but also ruled that Russia failed to comply with its previous ruling, particularly with respect to the enforcement of domestic judgments and had to take the steps previously outlined by the political organs of the Council of Europe to address its larger structural problems regarding the enforcement of domestic judicial rulings.3 What does this complex case tell us about compliance? The Burdov v Russia cases illustrate some of the many dimensions of states’ compliance and non-compliance with international law, from the involvement of multiple actors on both the domestic and international stage, to the iterative interactions between and among these actors across the compliance process, to the relationship between implementation and compliance. Moreover, the story of Anatoliy Tickhonovich Burdov illustrates that compliance is a process, and while that process is related to the enforcement and effectiveness of international law, these three concepts are empirically and theoretically discrete. The rest of this chapter will explore these and other themes related to compliance in more depth. Compliance has long been a key area of research for political scientists and legal scholars alike. Despite its centrality to the study of international law, however, compliance as a concept has been hotly contested and disputed. Traditionally, scholars have viewed compliance as a dependent variable and asked: ‘why do states comply with international law?’ By compliance, these scholars mean the conformity of practice and policy with ‘the law’, whether ‘the law’ means a court’s ruling, a codified treaty or international norms. Compliance is more than just an outcome, however. It is also a process. The process of compliance, which invokes multiple actors on the domestic and international levels, is often difficult to trace but by unpacking compliance processes scholars and practitioners can better understand the dynamic relationship between politics and law.

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This chapter focuses on compliance processes, and in doing so, provides an overview of the international relations and international law research on compliance from the perspective of the governance structures and stages articulated in the introduction to this volume. This chapter proceeds as follows. The first section outlines what compliance is and is not. The second section considers a move beyond the framework of the Great Debates for understanding compliance. Third, the chapter examines the actors and agents that are most important for compliance. Fourth, it considers compliance across two stages of governance: rulemaking and implementation. The fifth section considers the implications of two governance and enforcement structures for compliance, while the sixth section discusses challenges and possibilities in measuring compliance. The chapter concludes by considering the implications of compliance for the academic scholarship of international law as well as the practical nexus of international law and politics.

1. COMPLIANCE: WHAT IT IS AND WHAT IT IS NOT Before proceeding, it is important to emphasize what compliance means within the context of this chapter and to delineate what this chapter is and is not trying to explain. Although scholars can and do define compliance narrowly as rule conformity, compliance remains a nebulous concept, largely because it is exceedingly difficult to identify what compliance does not entail. Raustiala and Slaughter, for example, reference Victor et al., and suggest that compliance is different from both implementation and effectiveness.4 Similarly, Martin rejects compliance as a concept, arguing that it is a poor substitute for understanding the effectiveness of international law.5 She suggests that states can be compliant with the mundane demands of international institutions without changing their behavior or practices, to say nothing of their normative position on the particular international legal principle(s) in question.

4 Kal Raustiala and Anne-Marie Slaughter, ‘International Law, International Relations and Compliance’ in Walter Carlsnaes, Thomas Risse, and Beth A. Simmons (eds), Handbook of International Relations (Sage Publications 2002); David G. Victor, Kal Raustiala and Eugene B. Skolnikoff, The Implementation and Effectiveness of International Environmental Commitments: Theory and Practice (MIT Press 2008). 5 Lisa Martin, ‘Against Compliance’ In Jeffrey L. Dunoff and Mark A. Pollack (eds), International Law and International Relations: Synthesizing Insights from Interdisciplinary Scholarship (Cambridge University Press 2013).

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Martin argues that compliance is not a satisfactory way to theorize about or evaluate international law. Given these and related critiques, this chapter does not equate compliance with either effectiveness or implementation, although the three concepts are clearly related. This chapter proceeds from the perspective that compliance is conceptually and empirically slippery but not entirely intractable. I suggest that compliance, understood as a process, is one of many viable causal explanations of state behavior vis-à-vis international law. Although the focus of this chapter is on compliance, it will bring in discussions of implementation and enforcement, as well as effectiveness, which the following chapter addresses much more comprehensively.

2. WHY COMPLY: TRADITIONAL EXPLANATIONS AND NEW QUESTIONS The ‘Great Debates’ that have long structured the historiography of international realtions scholarship have also structured our collective thinking about compliance.6 Analyses of compliance to date have sought to explain why states comply with international laws and institutions. Compliance is posed as the dependent variable, or outcome of interest, and the answers to this question typically fall into the main -isms set up by the Great Debates historiography. Much like the introductory chapter, this chapter does not contend that the Great Debates are wrong but rather that scholars can build on those analyses to further understand the fluid and dynamic intersection of international law and politics. The question of why states comply with international law is rooted in traditional sovereignty concerns. Namely, in an anarchical environment in which cooperation is hard-won, why would states sacrifice their authority to comply with international law? The last 20 years of scholarship on compliance used the frameworks of neorealism, neoliberal institutionalism and social constructivism to explain how states overcame sovereignty concerns to comply with international law or, conversely, why they failed to do so. Neorealist expectations for compliance are centered on the role that international law plays in codifying existing practice. This argument for compliance suggests that compliance is not a function of international law’s exerting independent and forceful pressure on states that would 6

Beth Simmons, ‘Compliance with International Agreements’ (1998) 1 Annual Review of Political Science 75; Beth Simmons, ‘Treaty Compliance and Violation’ (2010) 13 Annual Review of Political Science 273.

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require them to change their practices and policies. Rather, neorealists argue that international law is epiphenomenal to state practice.7 For instance, in their analysis of international courts, Goldsmith and Posner posit that these international enforcement mechanisms have little, if any, ability to change state behavior.8 International law, they argue, is simply one tool among many that states use to advance their pre-existing interests. Accordingly, international law can be an effective instrument for powerful states but it does not induce states to change their behavior or preferences. In short, they argue that international laws and courts do not facilitate compliance. Like the neorealists that came before them, Goldsmith and Posner suggest that compliance is endogenous to states’ interests and thus the institutions they create and join.9 Neoliberal institutionalists take a less grim view of the ability of international law to facilitate compliance and shape state behavior. Neoliberal institutionalists privilege the principle of reciprocity and relatedly, effective institutional design. The principle of reciprocity suggests that states engage in tit-for-tat behavior, and that compliance or cooperation on the part of one state can induce cooperation on the part of its allies. Similarly, non-compliance or non-cooperation can yield a reciprocal response from other states. As Guzman suggests, cooperation and compliance in international law depend a great deal on states’ reputational concerns. States that cooperate with international institutions and comply with international law have reputations as trustworthy partners, and thus other states place a high premium on working with them, opening a new frontier of international collaborative opportunities.10 Undergirding neoliberal institutionalists’ privileging of reciprocity, of course, is the notion that cooperation and compliance are possible, even in anarchic international environments and that the challenge is not

7 James Fearon, ‘Bargaining, Enforcement and International Cooperation’ (1998) 52(2) International Organization 296; George W. Downs, David M. Rocke, and Peter N. Barsoom, ‘Is the Good News about Compliance Good News about Cooperation?’ (1996) 50(3) International Organization 379. 8 Jack L. Goldsmith and Eric A. Posner, The Limits of International Law (Oxford University Press 2005). 9 Goldsmith and Posner (n 8), See also Fearon (n 7). 10 Andrew Guzman, How International Law Works: A Rational Choice Theory (Oxford University Press 2008); see also Andrew Guzman, ‘The Cost of Credibility: Explaining Resistance to Interstate Dispute Resolution Mechanisms’ (2002) 31(2) The Journal of Legal Studies 303; Andrew T. Guzman, ‘A Compliance-Based Theory of International Law’ (2002) California Law Review 1823.

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overcoming anarchy as such but rather in designing institutions to produce cooperation and compliance. As such, neoliberal institutionalists pay a great deal of attention to institutional design, including international organizations’ ability to oversee compliance and enforce international law. The literature on institutional design highlights the role of different mechanisms that can facilitate the process of enforcing international law, including but not limited to adjudicative bodies.11 More recently, neoliberal institutionalists have turned their attention to the enforcement gaps left behind by international institutions and the role that domestic institutions play in filling those holes.12

11

Ronald B. Mitchell, ‘Regime Design Matters: Intentional Oil Pollution and Treaty Compliance’ (1994) 48(3) International Organization 425; Harold Jacobson, ‘Strengthening Compliance with International Environmental Accords’ (1995) 1(2) Global Governance 119; Kenneth W. Abbott, Robert O. Keohane, Andrew Moravcsik, and others, ‘The Concept of Legalization’ (2000) 54(3) International Organization 401; Judith Goldstein, Miles Kahler, Robert O. Keohane and others, ‘Introduction: Legalization and World Politics’ (2000) 54(3) International Organization 385; Liliana Botcheva and Lisa Martin, ‘Institutional Effects on State Behavior: Convergence and Divergence’ (2001) 45(1) International Studies Quarterly 1; Peter Rosendorff and Helen V. Milner, ‘The Optimal Design of International Trade Institutions: Uncertainty and Escape’ (2001) 55(4) International Organization 829; Ronald Mitchell and Patricia Kielbach, ‘Situation Structure and Institutional Design: Reciprocity, Coercion and Exchange’ (2001) 55(4) International Organization 891; Peter Rosendorff, ‘Stability and Rigidity: Politics and Design of the WTO’s Dispute Settlement Procedure’ (2005) 99(3) American Political Science Review 389; Andrew Guzman, ‘The Design of International Agreements’ (2005) 16(4) European Journal of International Law 579; Darren G. Hawkins, Delegation and Agency in International Organizations (Cambridge University Press 2006); Hyeran Jo, Monitoring Compliance: The Design of Monitoring Institutions in International Cooperation (ProQuest 2008). 12 Simmons (n 6); Lisa Martin, Democratic Commitments (Princeton University Press 1999); Lisa L. Martin and Beth A. Simmons, ‘Theories and Empirical Studies of International Institutions’ (1998) 52(4) International Organization 729; Oona Hathaway, ‘Do Human Rights Treaties Make a Difference?’ (2002) 111(8) Yale Law Journal 1935; Emilie M. Hafner-Burton and Kiyoteru Tsutsui, ‘Justice Lost! The Failure of International Human Rights Law to Matter Where Needed Most’ (2007) 44(4) Journal of Peace Research 407; James Vreeland, ‘Political Institutions and Human Rights: Why Dictatorships Enter into the United Nations Convention Against Torture?’ (2008) 62(1) International Organization 65; Jeremy Vogel, Brett Ashley Leeds and Michaela Mattes, ‘Interests, Institutions, and the Reliability of International Commitments’ (2009) 52(2) American Journal of

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Rationalist approaches to international relations and international law, like those advanced by the neorealist and neoliberal scholars alike, ask: ‘How does international law advance states’ interests or encourage states to act against those interests?’ In contrast, social constructivists ask how engagement with international law and institutions can help to shape states’ interests and thus produce compliance. Social constructivists contend that states comply with international law following a process of normative socialization, through which states’ understanding of appropriateness begins to conform to the expectations of the given treaty or institutions, thus leading to compliance.13 The constructivist turn in human rights scholarship is particularly instructive here. Risse, Ropp and Sikkink identify a norms spiral that seeks to explain the process of normative change and states’ compliance with international law.14 This model is based on Keck and Sikkink’s well-known ‘boomerang model’ of the international-domestic nexus of normative change and articulates five stages through which states change their behavior and understanding of particular human rights norms.15 These stages include: (1) repression of human rights; (2) denial of the legitimacy of international human rights norms; (3) tactical concessions; (4) prescriptive status consistent with international norms; and (5) rule consistent behavior. Through this process, states change their practices and their underlying beliefs. In the process, states become compliant with international law in both its hard and soft forms. According to social constructivists, these processes of acculturation and socialization are the main causal drivers of states’ compliance with international law.16

Political Science 461; Beth A. Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (Cambridge University Press 2009); Courtney Hillebrecht, Domestic Politics and International Human Rights Tribunals: The Problem of Compliance (Cambridge University Press 2014). 13 Jeffrey Legro, ‘Culture and Preferences in the International Cooperation Two-Step’ (1996) 90(1) American Political Science Review 118; Jeffrey Checkel, ‘Why Comply? Social Learning and European Identity Change’ (2001) 55(3) International Organization 553; Martha Finnemore and Stephen J. Toope, ‘Alternative Views to ‘Legalization’: Richer Views of Law and Politics’ (2001) 55(3) International Organization 743. 14 Thomas Risse, Stephen C. Ropp and Kathryn Sikkink, The Power of Human Rights (Cambridge University Press 1999). 15 Margaret Keck and Kathryn Sikkink, Activists Beyond Borders (Cornell University Press 1998). 16 Checkel (n 13); Jeffrey Checkel, ‘International Institutions and Socialization in Europe: Introduction and Framework’ (2005) 59(4) International Organization 801; Ryan Goodman and Derek Jinks, ‘How to Influence States:

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Some social constructivist scholars, meanwhile, argue that states are already socialized into the norm of compliance. These scholars, often called managerialists, argue that states operate on the premise of pacta sunt servanda, or ‘the treaty must be obeyed’. Compliance, rather than non-compliance, they argue, is the norm, not the exception.17 Managerialists point to states’ inability to comply with their international legal obligations, rather than their unwillingness to do so, in order to explain non-compliance. With this in mind, states could very much want to comply and be socialized into the norms of a particular treaty or institution, but those same states might be unable to comply because of a lack of capacity. After many years of compliance studies that have examined why states comply from the perspective of the -isms, international relations and international legal scholars over the last decade have turned their attention to the nexus of domestic politics and international law. Largely empirical and generally dominated by neoliberal institutionalists, this literature suggests that domestic institutions fill the enforcement gaps left behind by international law.18 These scholars argue that the ability of international institutions to monitor and enforce states’ compliance with international law is circumscribed by traditional sovereignty concerns, poor institutional design, and, in the case of human rights, the inability of international human rights law to invoke any mechanism of reciprocity. This turn to the domestic politics of compliance with international law is important, in large part because the nexus between international law and domestic politics is decidedly porous. Domestic political institutions, incentives and actors are critical for compliance with international law. Similarly, international law and institutions provide important tools for, and constraints on, domestic actors. The last decade’s worth of research on the topic has proven to be very useful in explaining the domestic Socialization and International Human Rights Law’ (2004) 54(3) Duke Law Journal 621; Ryan Goodman and Thomas Pegram (eds), Human Rights, State Compliance, and Social Change (Cambridge University Press 2011). 17 Abram Chayes and Antonia Handler Chayes, ‘On Compliance’ (1993) 47(2) International Organization 175. 18 See Simmons (n 6a); Hathaway (n 12); Emilie Hafner-Burton and Kiyoteru Tsutsui, ‘Human Rights in a Globalizing World: The Paradox of Empty Promises’ (2005) 100(5) American Journal of Sociology 1373; Sonia Cardenas, Conflict and Compliance: State Responses to International Human Rights Pressure (University of Pennsylvania Press 2007); Vreeland (n 12); Simmons (n 12); Simmons (n 6b); Alexandra Huneeus, ‘Courts Resisting Courts: Lessons from the Inter-American Court’s Struggle to Enforce Human Rights’ (2011) 44(3) Cornell International Law Journal 493; Hillebrecht (n 12).

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institutions that facilitate the compliance process on the domestic level. There is, however, much more to be learned about how domestic politics influence compliance with international law and similarly, how international politics and institutions influence domestic actors’ decisions to comply – or not – with international law. Either implicitly or explicitly, the literature on why states comply has also asked to what effect? That is, if states are complying with international law because the law codifies existing behavior and advances states’ interests, as neorealist scholars suggest, international law has little if any effect on state behavior. Similarly, if states comply with international law through a process of socialization, then the effect is a change in the normative position of those states. Or, in the case of neoliberal institutionalism, states comply – and thereby change their policy – because of domestic and international institutional configurations. In all of these instances, compliance is analogous, or nearly analogous, to the effect of international institutions. The remainder of this chapter aims to provide a different lens through which scholars and practitioners can understand compliance. Instead of examining why states comply with international law, which is ground that is already well-trodden, the rest of this chapter seeks to explain how states comply with international law by identifying: (a) who is involved in the compliance process; (2) how compliance unfolds throughout the governance stages, particularly at the beginning stage of rulemaking and in the later stage of implementation; and (3) which political contexts and governance structures are more or less likely to facilitate compliance, with an emphasis on international adjudicative bodies and soft law mechanisms.

3. ADDING AGENCY TO COMPLIANCE The move from conceptualizing compliance as an outcome to conceptualizing it as a process requires integrating an understanding of the actors and stakeholders that promote and/or prevent compliance. Who is driving compliance processes? And who is trying to thwart these compliance processes? This section considers the role of both domestic and international actors in facilitating or hampering compliance processes. 3.1 Domestic Actors As much of the compliance process unfolds on the domestic level, domestic actors have a primacy of place in the compliance narrative. One

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of the key actors with respect to the compliance process is the executive. As the head of state, executives have the responsibility for conducting foreign policy. The bureaucrats who do their state’s bidding in New York or Geneva or Addis Ababa are, for the most part, under their executive’s purview. This means that relative to other domestic actors, executives have a tremendous amount of power to influence the compliance process, from the creation of international institutions to states’ implementation of particular components of international law. In this way, executives and the civil servants they employ are at the front line of compliance. This is not to say that executives use this power uniformly to promote compliance processes but rather that executives can often serve as gatekeepers to the larger compliance process. Domestically, robust democratic institutions can serve as important checks on the executive and facilitate or thwart the compliance process. For example, scholars have long pointed to the importance of independent, judicial institutions for compliance with international law.19 Robust and independent judiciaries have the ability to advocate for compliance in the face of executive resistance or force the legislature’s hand vis-à-vis enacting new policies to conform to international law. For example, in her analyses of U.S. detainee practices and the international legal framework prohibiting the use of torture, Hathaway argues that the U.S. Supreme Court – and the process of adjudication that lead to the Supreme Court’s rulings on detainee cases – was the main domestic agent pushing the Bush administration and Congress to change the state’s policies and practices on unlawful enemy combatants.20 Given how highly legalistic and juridical international relations have become over the past 60 years, it is no surprise that domestic legal institutions are able 19 Karen Knop, ‘Here and There: International Law in Domestic Courts’ (1999) 32 New York University Journal of International Law and Politics 501; David Jacobson and Gayla Benarieh Ruffer, ‘Courts Across Borders: The Implications of Judicial Agency for Human Rights and Democracy’ (2003) 25 Human Rights Quarterly 74; Oona Hathaway, ‘The Promise and Limits of the International Law of Torture’ in Sandford Levinson (ed), Torture: A Collection (Oxford University Press 2004); Clifford J. Carrubba, ‘Courts and Compliance in International Regulatory Regimes’ (2005) 67(3) Journal of Politics 669; Sandra Coliver, Jennie Green and Paul Hoffman, ‘Holding Human Rights Violators Accountable by Using International Law in U.S. Courts: Advocacy Efforts and Complementary Strategies’ (2005) 19 Emory International Law Review 169; Simmons (n 12); Eyal Benvenisti and George W. Downs, ‘National Courts, Domestic Democracy, and the Evolution of International Law’ (2009) 20(1) European Journal of International Law 59. 20 Hathaway (n 19).

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to interface effectively with international law and international legal bodies. That is not to say, however, that courts are always procompliance. Indeed, they can actively resist implementing international laws in their rulings and push back against the dominant narrative of compliance.21 Thus, while domestic courts can be effective in facilitating compliance processes, it would be inaccurate to characterize these institutions as pro-compliance. As with other domestic institutions, the political context matters. Because of the natural linkages between international law and executives, who have the authority to enter into international legal commitments, and judges, who speak the same language of law as international institutions, analyses of these actors tend to dominate the compliance literature. And yet, other actors, particularly political parties, legislatures and interest groups can have a real impact on compliance and cooperation, as Kevin Cope’s chapter later in this volume suggests. For example, in their analysis of cooperation in trade agreements, Mansfield, Milner and Rosendorff suggest that domestic, electoral politics can facilitate cooperation and compliance with international trade agreements.22 Similarly, Fioretos suggests that domestic political processes and pressure groups can produce coalitions to adhere to multilateral agreements.23 Indeed, the role of domestic opposition in providing checks on the executive can increase other states’ willingness to accept states’ credible commitments, further improving the quality of cooperation, and presumably, compliance.24 As with executives and legislatures, this is not to imply that legislatures and political competition always promote the compliance process. Indeed, in many instances, electoral politics and domestic opposition groups pose real stumbling blocks for compliance. For example, in the United Kingdom, Members of Parliament opposed to 21

Alexei Trochev, ‘Less Democracy, More Courts: A Puzzle of Judicial Review in Russia’ (2004) 38(3) Law and Society Review 513; Eyal Benvenisti, ‘Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts’ (2008) Tel Aviv University Law Faculty Papers, accessed 10 September 2016 at http://law.bepress.com/taulwps/art59; Huneeus (n 18). 22 Edward Mansfield, Helen Milner and Peter Rosendorff, ‘Why Democracies Cooperate More: Electoral Control and International Trade Agreements’ (2002) 56(3) International Organization 477. 23 Orfeo Fioretos, ‘The Domestic Sources of Multilateral Preferences: Varieties of Capitalism in the European Community’ in Peter A. Hall and David Soskice (eds), Varieties of Capitalism: The Institutional Foundation of Comparative Advantage (Oxford University Press 2001). 24 Helen V. Milner, Interests, Institutions, and Information: Domestic Politics and International Relations (Princeton University Press 1997); Martin (n 12).

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the European Court of Human Rights regularly block U.K. compliance with the ECtHR.25 Other scholars point to non-state actors as critical for the compliance process. Civil society actors, including both NGOs and media institutions, can be important whistleblowers, monitors and conveyors of information. Again, looking to the issue of human rights, many scholars point to NGOs as key drivers of the compliance process. These nongovernmental organizations can put pressure on governments or specific state agents to engage in the compliance process and bring violations of international human rights law to light.26 Conceptualizing how these diverse, domestic actors promote or thwart the compliance process provides an opportunity for compliance scholars. While articulating and demonstrating how any individual actor affects the compliance process is a key step in understanding compliance, these actors do not work in isolation, either domestically or internationally. What is called for, then, is a comprehensive and holistic understanding of how various stakeholders approach compliance with any given treaty, norm or ruling. Xinuan Dai and Karen Alter, for example, both highlight the role of compliance constituencies, or groups within the domestic sphere that would benefit from compliance and thus are willing and able to work to advance the compliance process.27 Similarly, Cardenas promotes the idea of spoilers to compliance, focusing in particular on the

25 Courtney Hillebrecht, ‘Implementing International Human Rights Law at Home: Domestic Politics and the European Court of Human Rights’ (2012) 13(3) Human Rights Review 279; Kendall W. Stiles, ‘The Dissemination of International Liberal Norms: The Case of the ECHR and the UK’ (2006) 39(1) Canadian Journal of Political Science/Revue Canadienne de Science Politique 135. 26 See Keck and Sikkinik (n 15); Ceclia MacDowell Santos, ‘Transnational Legal Activism and the State: Reflections on Cases Against Brazil in the Inter-American Commission on Human Rights’ (2007) 4(4) International Journal on Human Rights 28; Emilie Hafner-Burton, ‘Sticks and Stones: Naming and Shaming the Human Rights Enforcement Problem’ (2008) 62(4) International Organization 689; Simmons (n 12); Alison Brysk, Global Good Samaritans: Human Rights as Foreign Policy (Oxford University Press 2009); Kiyoteru Tsutsui, Claire Whitlinger and Alwyn Lim, ‘International Human Rights Law and Social Movements: States’ Resistance and Civil Society’s Insistence’ (2012) 8 Annual Review of Law and Social Science 367. 27 Xinyuan Dai, ‘Why Comply? The Domestic Constituency Mechanism’ (2005) 59(2) International Organization 363; Xinyuan Dai, International Institutions and National Policies (Cambridge University Press 2007); Karen J. Alter, The New Terrain of International Law: Courts, Politics, Rights (Princeton

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dampening effect the military can have on compliance with human rights law in the Americas.28 Hillebrecht uses the notion of compliance coalitions, or the constellation of actors that come together to actively promote compliance.29 It is not just direct stakeholders who can advance or threaten compliance processes, however. While executives or the state more generally might commit to complying with international law, its agents are not always as willing or as well-informed of their international commitments. For example, Simmons finds that stamping out torture is exceedingly difficult because the state’s reach into prisons is filtered through individual guards and officers, who might still be inclined to torture detainees and/or are unaware of national-level changes in policy and practice.30 Conrad and Moore further find that domestic principal-agent relationships complicate governments’ use of torture, despite international law being quite clear on the matter.31 Similarly, in his analysis of compliance with the laws of war, Morrow suggests that the reciprocity inherent in the laws of war works when all agents of the state understand that the lawful treatment of POWs operates on a quid pro quo basis.32 When agents of the state fail to understand or appreciate the value of this reciprocity, they are less likely to advance the compliance process. As such, we might expect better compliance outcomes in domains in which the authority, ability and willingness to engage in the compliance process is more centralized. 3.2 International Actors As should be clear by now, compliance does not just unfold domestically. Instead, it spans the domestic-international divide and international actors play a significant role in compliance processes. By international actors, this chapter is referring to both formal international institutions, as well as to other states and international non-governmental organizations

University Press 2014); see also Ann Kent, Beyond Compliance: China, International Organizations, and Global Security (Stanford University Press 2010). 28 Sonia Cardenas, Conflict and Compliance: State Responses to International Human Rights Pressure (University of Pennsylvania Press 2007). 29 Hillebrecht (n 12); Hillebrecht (n 25). 30 Simmons (n 12). 31 Courtenay R. Conrad and Will H. Moore, ‘What Stops the Torture?’ (2010) 54(2) American Journal of Political Science 459. 32 James D. Morrow, ‘When Do States Follow the Laws of War?’ (2007) 101(3) American Political Science Review 559.

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(INGOs). Often, in analyses of compliance, international actors are conceptualized as the ‘task-masters’, the actors that set and enforce the rules that domestic actors must then try to follow. The relationship between states and international legal institutions is not nearly as clear as this bifurcation of international actors as the ‘givers’ of international law and states as the ‘receivers’ might suggest. Instead, this relationship goes both ways. For example, Mitchell and Powell argue that international courts adopt the legal systems of their member states, which influences the operating procedures and judgments of these courts.33 Further, as I discuss in the section on lawmaking below, the design and normative stance of international institutions both influence and are influenced by states’ domestic politics. In turn, these design features and normative positions alter states’ prospects for compliance. With that caveat in mind, two of the clearest ways in which international actors, broadly defined, play a role in the compliance process is through monitoring and/or enforcement. While the two are related, they are not synonymous. Monitoring refers to the oversight of the compliance process, including information-gathering and processing. Enforcement entails coercive action that induces a state toward compliance: I discuss enforcement in more detail below. Although monitoring can take place on a number of levels and with a variety of actors, including local NGOs, international agencies and organizations play a large monitoring role.34 33

Sara McLaughlin Mitchell and Emilia Justyna Powell, Domestic Law Goes Global: Legal Traditions and International Courts (1st edn, Cambridge University Press 2011); see also Sara McLaughlin Mitchell, Jonathan J. Ring and Mary K. Spellman, ‘Domestic Legal Traditions and States’ Human Rights Practices’ (2013) 50(2) Journal of Peace Research 189. 34 Amanda Murdie, ‘The Impact of Human Rights NGO Activity on Human Right Practices’ (2009) 4(10) International NGO Journal 421; James H. Lebovic and Erik Voeten, ‘The Politics of Shame: The Condemnation of Country Human Rights Practices in the UNCHR’ (2006) 50(4) International Studies Quarterly 861; Benjamin Valentino, Paul Huth and Sarah Croco, ‘Covenants Without the Sword: International Law and the Protection of Civilians in Times of War’ (2006) 58(3) World Politics 58, 339; Amanda Murdie and David Davis, ‘Shaming and Blaming: Using Events Data to Assess the Impact of Human Rights INGOs’ (2011) 56(1) International Studies Quarterly 1; Sam R. Bell, K. Chad Clay and Amanda Murdie, ‘Neighborhood Watch: Spatial Effects of Human Rights INGOs’ (2012) 74(2) The Journal of Politics 354; Paul Huth, Sarah Croco and Benjamin Appel, ‘Law and the Use of Force in World Politics: The Varied Effects of Law on the Exercise of Military Power in Territorial Disputes’ (2012) 56(1) International Studies Quarterly 17; Matthew Krain, ‘J’accuse! Does Naming and Shaming Perpetrators Reduce the Severity of Genocides or Politicides?’ (2012) 56(3) International Studies Quarterly 547; Alyssa K. Prorok and

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This monitoring can lead to compliance by providing information to stakeholders, who might exert more coercive power over the main actors. For example, Prorok and Appel suggest that third-party involvement in interstate conflict can help to prevent civilian targeting by providing oversight and some promises of accountability.35 International actors, including formal and informal institutions, also play an important role in facilitating social learning, which can be part of the compliance process. For example, studies of the socializing effect of international organizations point to the ways in which these ‘teachers of norms’ can induce states to change their policies and practices.36 It is important, however, to identify the empirical and conceptual problems of conflating social learning and compliance. Social learning can take place prior to, or parallel to, a state’s engagement with a particular treaty, institution or norm. Moreover, in instances in which social learning has facilitated a change in state behavior, it is difficult, if not impossible, to identify a causal linkage between international law, social learning and compliance because of the presence of so many intervening and confounding variables. The following section explores the theoretical and empirical challenges in more detail by examining compliance through the lens of governance stages.

4. COMPLIANCE ACROSS STAGES OF GOVERNANCE Chapter 1 of this volume identifies a set of governance stages, including rulemaking, interpretation, decision-making, implementation and legal

Benjamin J. Appel, ‘Compliance with International Humanitarian Law: Democratic Third Parties and Civilian Targeting in Interstate War’ (2014) 58(4) Journal of Conflict Resolution 713. 35 Prorok and Appel (n 34); see also Claudia Hofmann and Ulrich Schneckener, ‘NGOs and Nonstate Armed Actors: Improved Compliance with International Norms’ (2011) Special Report 284 United States Institute for Peace, accessed 10 September 2016 at http://www.usip.org/sites/default/files/sr284.pdf. 36 Martha Finnemore, ‘International Organizations as Teachers of Norms: The United Nations Educational, Scientific, and Cultural Organization and Science Policy’ (1993) 47(4) International Organization 65; Checkel (n 16); Ryan Goodman and Derek Jinks, ‘How to Influence States: Socialization and International Human Rights Law’ (2004) 54(3) Duke Law Journal 621; Judith Kelley, ‘International Actors on the Domestic Scene: Membership Conditionality and Socialization by International Institutions’ (2004) 58(3) International Organization 425; Ryan Goodman and Thomas Pegram (eds), Human Rights, State Compliance, and Social Change (Cambridge University Press 2011).

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change. Compliance is often considered to take place toward the end of this trajectory. The classic narrative suggests that states create institutions and laws and then proceed to comply with them. If they are found to be in violation, the institutions that they created ask them to take steps to remedy those violations and be ‘in compliance’ with the laws and rules they set forth. This linear roadmap belies the role that compliance, or at least expectations of compliance, plays throughout the various stages of governance. While expectations of, and assumptions about, compliance are prevalent in all of the governance stages Sandholtz and Whytock outline in the previous chapter, this chapter will focus on two: rulemaking and implementation. This section first focuses on rulemaking because it speaks directly to the endogeneity problem that plagues research on why and to what effect states comply with international law. Next, this section considers implementation. Implementation is critical to understanding compliance because it highlights the relationships between various actors engaging in the compliance process. Compliance is not a one-shot, take-it-or-leave-it scenario. Instead, it is a complex process that unfolds among a variety of actors on various levels. The incremental steps of implementation are the building blocks of this process. As Sandholtz and Whytock discuss in the first chapter, the third stage of governance, decision-making, is an obvious locus for discussions about compliance. As they note, much of the research from this perspective considers international law as the independent variable and compliance as the dependent variable. There is much to be gained from this perspective and the literature Sandholtz and Whytock discuss, as well as the literature reviewed above generally, take this approach. As such, rather than focusing on decision-making, the rest of this section will focus on the intersection of compliance and rulemaking and implementation. 4.1 Rulemaking Sandholtz and Whytock outline rulemaking as the first of the governance stages. At first glance the idea of rulemaking, of setting out the rules and decisions with which states are expected to adhere, seems far removed from the compliance process. And yet, the compliance process begins precisely here. There is a long-standing debate in the compliance literature about whether or not compliance is endogenous to institutional design and treaty ratification, that is, rulemaking. For example, Fearon suggests that compliance is a function of successful bargaining during the

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rulemaking phase.37 That is, states are likely to design and subsequently join international agreements with which they are either ex ante compliant or with which they are quite certain that they will become compliant. This expectation about compliance helps to explain, for example, the number of strong democracies that join human rights agreements: these states are already compliant with treaty obligations.38 It is in this rulemaking stage that the relationship between power and compliance processes becomes clear. States that are most able to bargain for their preferred institutional rules and design are also most likely to be ‘in compliance’ later on down the road. This puts weak states at a disadvantage from the start and privileges those that are most able to influence the rulemaking stage. This selection and design process harkens back to neorealist scholars’ concerns that international law is endogenous to states’ interests. While compliance rates will be high in a treaty or institution in which the members were able to codify their existing behavior, compliance as a concept does not capture the work that the treaty is doing. In this case, the treaty or institution is screening out non-compliant states, not constraining them and promoting compliance processes.39 The ability of international law to screen and/or constrain states is a long-standing debate in international relations theory. While this debate does not always invoke the concept of compliance, it is inextricably linked. This connection is largely forged on expectations of compliance. A screening mechanism would suggest that international treaties screen out, for example, deter from ratifying, those states that are not ex ante compliant and that are not expecting to engage in a compliance process. This screening mechanism also rests on expectations of stringent enforcement. States that do not expect to comply with the rules and norms set out by the treaty and that expect those rules and norms to be strictly enforced are unlikely to join in the first place. When expectations of enforcement are low, however, expectations of compliance do not matter as much as states will not be punished for their non-compliant behavior. Again, international human rights law is illustrative. Many international human rights treaties and institutions, including those with 37

Fearon (n 7). Hathaway (n 12). 39 Beth Simmons, ‘The International Politics of Harmonization: The Case of Capital Market Regulation’ (2001) 55(3) International Organization 589; Beth Simmons and Daniel J. Hopkins, ‘The Constraining Power of International Treaties: Theory and Methods’ (2005) 99(4) American Political Science Review 623. 38

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‘strong’ enforcement mechanisms, like the European Court of Human Rights, count authoritarian regimes and human rights abusers among their members. These states can easily join international human rights agreements and institutions because these international bodies are unable to truly ‘enforce’ international human rights law, and the domestic mechanisms necessary to fill this enforcement gap are either unable or unwilling to do so.40 This produces a bimodal distribution of member states. States that are unlikely to engage in compliance but have low expectations of enforcement will ratify the agreement, as will states with strong expectations of compliance. These expectations about enforcement and compliance both inform and are informed by the lawmaking process. States bring their preferences about an institution or treaty’s substance and design to the negotiating table, and throughout the process of designing international laws, states update their expectations about both compliance and enforcement, which, in turn, determines the likelihood that states will ratify an agreement or join an institution. It is thus quite clear that although rulemaking and compliance are often considered on opposite ends of the trajectory of international law, they are inherently and inextricably linked. Expectations about compliance permeate the rulemaking phase and likewise, the rules that are set out during these initial bargaining stages have a tremendous bearing on how compliance unfolds and whether or not states even need to engage in a compliance process at all. In this way, the compliance process begins alongside the development of an institution or treaty. 4.2 Implementation The preceding chapter identifies implementation as the second-to-last of the governance stages, and of course, implementation and compliance are closely related concepts. We can understand implementation as the steps that states take to put international legal obligations into effect. For states that are not ex ante-compliant with the treaties and institutions they join, implementation is necessary but not always sufficient for compliance. The following discusses the ways in which implementation and compliance can diverge. 40 Downs, Rocke, and Barsoom (n 7); Oona A. Hathaway, ‘Why Do Countries Commit to Human Rights Treaties?’ (2007) 51(4) Journal of Conflict Resolution 588; Eric Neumayer, ‘Do International Human Rights Treaties Improve Respect for Human Rights?’ (2005) 4(6) Journal of Conflict Resolution 925; Vreeland (n 12); Simmons (n 12).

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States have a tremendous amount of latitude in how they implement international law and to what effect. Recall the above discussion of managerialism. Managerialists suggest that the biggest source of noncompliance with international law is inability, not unwillingness. Consider, for example, the Kyoto Protocol. A state might have had political will to curb its carbon dioxide emissions, but it might have failed to do so from a lack of scientific and technical capacity. So, while the political arc is toward compliance, the failure to implement the specific demands undermines the compliance process. Two core principles of international law further affect the ways in which states implement their international legal obligations: subsidiarity and complementarity. The former, subsidiarity, refers to the idea that states have the right and the responsibility to implement their international commitments as is appropriate within the domestic sphere. Subsidiarity gives states the room that they need domestically to engage with international law, and, as Paolo Carozza suggests, subsidiarity is a structural principle of international law.41 The challenge is that because subsidiarity gives states a substantial freedom with respect to how they implement their international legal obligations, states can point to subsidiarity as a way to shirk their international legal responsibilities or implement those obligations in a way that might be orthogonal to compliance. Relatedly, international human rights and criminal law scholars increasingly consider the principle of complementarity. Article 17 of the Rome Statute of the International Criminal Court (ICC) mandates that the ICC does not have jurisdiction over cases that the state is willing and able to adjudicate at home. What constitutes a satisfactory domestic judicial process with respect to investigation, prosecution, adjudication and reparation is far less clear in practice than in theory. Debates about the Rome Statute and complementarity have been long and heated, especially as multiple target states, including Uganda, Kenya, Côte d’Ivoire and Libya have all invoked complementarity arguments in some capacity during their interactions with the ICC.42 41

Paolo Carozza, ‘Subsidiarity as a Structural Principle of International Human Rights Law’ (2003) 97(1) American Journal of International Law 38. 42 Nigel Rodley, ‘United Nations Human Rights Treaty Bodies and Special Procedures of the Commission on Human Rights: Complementarity or Competition?’ (2003) 25(4) Human Rights Quarterly 882; Coliver, Green, Hoffman (n 19); William W. Burke-White, ‘Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice’ (2008) 49 Harvard International Law Journal 53; Chris Stephen, ‘Clarifying the

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While the principle of complementarity is somewhat unique to international criminal law, regional human rights tribunals like the European and Inter-American Courts of Human Rights require that petitioners exhaust domestic remedies prior to seeking recourse at one of these regional bodies. This requirement empowers and obligates domestic courts to interpret and rule on international human rights law. As the caseload at these regional courts continues to grow, they increasingly look to domestic courts to ease the burden. As the international environment becomes more legalized, and domestic and international courts have sustained and repeated interactions, one of the driving questions will be whether, and to what degree, these domestic processes that happen prior to, or in lieu of, international adjudication satisfy the demands for the implementation of international legal obligations.

5. COMPLIANCE, ENFORCEMENT AND VARIATION ACROSS GOVERNANCE SYSTEMS States’ expectations about and performance with respect to compliance are linked to their expectations about enforcement. Enforcement takes many shapes in international law, including, but not limited to, naming and shaming, adjudication, sanctions and even humanitarian military action in rare cases. Whytock defines enforcement as ‘… the process of obtaining a person’s compliance or punishing a person’s non-compliance when ex ante background factors fail to elicit compliance’.43 Thus, enforcement and compliance collide when we ask: what are the consequences that states face for non-compliance? This section considers two Principle of Complementarity: The ICC Confirms Admissibility of Case Despite Investigation by Kenya’ (2011) September 14 EJIL: Talk!, accessed 10 September 2016 at http://www.ejiltalk.org/clarifying-the-principle-of-complementaritythe-icc-confirms-admissibility-of-case-despite-investigation-by-kenya/; Frans Viljoen, ‘Human Rights in Africa: Normative, Institutional and Functional Complementarity and Distinctiveness’ (2011) 18(2) South African Journal of International Affairs 191; Carsten Stahn, ‘Libya, the International Criminal Court and Complementarity A Test for “Shared Responsibility”’ (2012) 10(2) Journal of International Criminal Justice 325; Sarah M.H. Nouwen, Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan (Cambridge University Press 2014). 43 Christopher A. Whytock, ‘Enforcement of Foreign Judgments: Governance, Rights, and the Market for Dispute Resolution Services’ in Hans-W. Micklitz and Andrea Wechsler (eds), The Transformation of Enforcement: European Economic Law in Global Perspective (Hart Publishing 2015).

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mechanisms that are central to the enforcement, and thus compliance, processes – international courts and soft law mechanisms. 5.1 International Courts When scholars talk about enforcement and international law, they often refer to the institutionalized mechanisms that exact costs on states if they stray from their compliance commitments. The rational design of institutions’ literature, for example, identifies enforcement mechanisms as one of the key institutional design features that can help mitigate uncertainty around international agreements.44 The legalization literature further considers variations in enforcement or dispute settlement mechanisms that range from the highly legalized to the more informal.45 The most highly legalized and formal enforcement mechanisms that international law offers are international courts. These judicial institutions are designed to uphold particular treaties or international legal obligations. For instance, the European Court of Human Rights is charged with ensuring that states comply with the human rights standards set out in the European Court of Human Rights and Fundamental Freedoms. The International Court of Justice, on the other hand, has jurisdiction over interstate complaints brought by one of its member states against another. The landscape of international courts is growing. iCourts, a research program from the Danish National Research Initiative, identifies over 20 such international courts. There is an increasingly robust literature on why states comply with international courts. Some scholars, like Goldsmith and Posner argue that compliance with international tribunals is poor, at best.46 Others, like Alter, argue that international courts can constrain state behavior, even if their enforcement of international law is not always perfectly tidy.47 As Huneeus argues, despite the flaws and challenges in the concept of compliance, states’ compliance with international courts’ judgments does 44

See Barbara Koremenos, Charles Lipson, and Duncan Snidal, ‘The Rational Design of International Institutions’ (2001) 55(4) International Organization 761. 45 Abbott and others (n 11); Goldstein and others (n 11). 46 Goldsmith and Posner (n 8). 47 Karen Alter, ‘Who Are the Masters of the Treaty? European Governments and the European Court of Justice’ (1998) 52(1) International Organization 121; See also Lisa J. Conant, Justice Contained: Law and Politics in the European Union (Cornell University Press 2002); Huneeus (n 18); Laurence R. Helfer and Karen J. Alter, ‘Legitimacy and Lawmaking: A Tale of Three International Courts’ (2013) 14(2) Theoretical Inquiries in Law 479.

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matter.48 She identifies two types of compliance with these international adjudicative bodies: compliance with the discrete obligations handed down by the international court and erga omnes compliance with that body’s judgments against other member states. In addition to these two forms of compliance obligations, international courts also generate a third type of compliance on states: compliance with the day-to-day demands that support international courts’ routine work. In his analyses of the International Criminal Tribunals of the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), Peskin refers to these demands as ‘trials of cooperation’.49 For international courts to function they need to have the support of states and they need to garner compliance with those routine tasks. One of the inherent challenges with thinking about international courts as enforcement mechanisms, or mechanisms that are part of a large enforcement process is that they, too, require states to engage in a compliance process. That is, international courts are not strictly enforcement mechanisms, as they cannot induce compliant behavior or exact costs for non-compliance (see above) on their own. Instead, they trigger – or should trigger – their own compliance processes. While international courts are designed to facilitate compliance with treaties they cannot force states to comply with their rulings any more than the treaties themselves can. Instead, compliance with international courts’ judgments is subjected to the same actors and processes as international law more generally. To understand this point more clearly, let us return to the European Court of Human Rights and the Burdov v Russia cases. The European Court of Human Rights is the enforcement mechanisms of the European Convention on Human Rights and Fundamental Freedoms. And yet, the existence of the Court does not dictate compliance with the treaty. Instead, the Court plays the role of monitor and arbiter but once it hands downs its rulings, it cannot compel states to comply with its demands. Thus, the process of compliance falls to domestic actors with some involvement from international political actors.

48 Alexandra Huneeus, ‘Compliance with International Court Judgments and Decisions’ (2013) SSRN Scholarly Paper ID 2198595 (Social Science Research Network), accessed 10 September 2016 at http://papers.ssrn.com/abstract= 2198595. 49 Victor Peskin, International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation (1st edn, Cambridge University Press 2008).

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The implication of these secondary compliance processes is that enforcement mechanisms are part of the compliance process, not exogenous to it. What does this all suggest to us about the compliance process and these formalized compliance mechanisms? First, as with treaty membership, expectations about enforcement/compliance with tribunals is likely to affect states’ acceptance of the tribunals’ compulsory jurisdiction. Second, as with compliance with other forms of international law, compliance with the tribunals’ rulings is a process instigated by both domestic and international actors on both the domestic and international stages. 5.2 Soft Law and ‘Soft Enforcement’ International legal scholars typically differentiate between hard (for example, codified) law and soft law, meaning non-legally binding norms. Implicit in the difference between soft and hard law is the assumption that hard law is more readily enforced by virtue of being codified law and that states might respect – and thereby comply with – hard law more than with soft law.50 This assumption, however, is largely unsubstantiated empirically. Indeed, some studies, such as Daniel Ho’s analysis of compliance with the Basle Accords, suggest that the compliance process is the same for hard and soft law.51 The factors Ho identifies are consistent with those that dictate compliance with hard law: robust democratic institutions, a strong rule of law with low corruption and a set of market forces particularly relevant to the Basle Accords. Other scholars have similarly found that the same factors that shape the compliance process with hard law or international legal judgments also shapes the compliance process with ‘soft law’ mechanisms, like the recommendations issued by the UN General Assembly or the African Commission on Human and Peoples Rights.52 50 See Verdier and Voeten’s (2014) discussion of customary international law and the relationship between customary international law, treaty law, international norms and compliance. 51 Daniel E. Ho, ‘Compliance and International Soft Law: Why Do Countries Implement the Basle Accord?’ (2002) 5(3) Journal of International Economic Law 647. 52 See Christopher C. Joyner, ‘Recommended Measures under the Antarctic Treaty: Hardening Compliance with Soft International Law’ (1997) 19 Michigan Journal of International Law 401; Richard L. Williamson Jr, ‘Hard Law, Soft Law, and Non-Law in Multilateral Arms Control: Some Compliance Hypotheses’ (2003) 4 Chicago Journal of International Law 59; Frans Viljoen and Lirette Louw, ‘State Compliance with the Recommendations of the African Commission

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But what of soft law that is even softer? What are the mechanisms that shape the compliance processes around general principles of international law? The international relations’ literature has long argued that international normative pressure can have a positive effect on state behavior, whether that entails shaping domestic human rights conditions, states’ propensity to use force or their likelihood to develop nuclear weapons.53 It is not always clear, however, how normative pressure interfaces with the compliance process and this relationship is ripe for future research. The relationship between soft law and compliance faces the same methodological and conceptual problems as other forms of governance systems and compliance, namely, concerns over endogeneity. For instance, in his analysis of the Helsinki Accords, Daniel Thomas suggests that human rights norms helped to facilitate both the formation of the Helsinki Accords, as well as compliance with them. International norms become norms through the uniformity of practice.54 In other words, they become norms because states are compliant with them. The real question is how actors facilitate the compliance process vis-à-vis these international norms, particularly when the obligations inherent in international norms might be less clear than those prescribed by hard international law. Although international courts and soft law governance systems are distinctly different, their relationship with compliance processes is, in fact, quite similar. By comparing them, two things become apparent: first, although different governance structures impose different constraints and offer unique benefits to states, many of the same factors that influence compliance with hard law similarly influence the compliance process

on Human and Peoples’ Rights, 1994–2004’ (2007) 101(1) American Journal of International Law 1. 53 Ronald L. Jepperson, Alexander Wendt and Peter J. Katzenstein, ‘Norms, Identity and Culture in National Security’ in Peter J. Katzenstein (ed), The Culture of National Security (Columbia University Press 1996) 33; Richard K. Herrmann and Vaughn P. Shannon, ‘Defending International Norms: The Role of Obligation, Material Interest, and Perception in Decision Making’ (2001) 55(3) International Organization 621; Daniel Charles Thomas, The Helsinki Effect: International Norms, Human Rights, and the Demise of Communism (Princeton University Press 2001); Edward Newman, ‘“Transitional Justice”: The Impact of Transnational Norms and the UN’ (2002) 9(2) International Peacekeeping 31; Pamela A. Jordan, ‘Does Membership Have Its Privileges?: Entrance into the Council of Europe and Compliance with Human Rights Norms’ (2003) 25(3) Human Rights Quarterly 660; Charles K. Whitehead, ‘What’s Your Sign – International Norms, Signals, and Compliance’ (2005) 27 Michigan Journal of International Law 695; Hofmann and Schneckener (n 35). 54 Thomas (n 53).

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with soft law. Second, and relatedly, the literature on compliance and soft law treats norms as both a dependent and independent variable. This only reinforces the argument that compliance is a process, and one that is highly endogenous. As noted above, there is little empirical work that evaluates compliance across different types of governance and enforcement structures. This is particularly problematic as the international relations and international law literatures assume that although the process of compliance is similar, the outcome is different. How do scholars account for this inconsistency? With the increased legalization of international politics comes the opportunity to empirically evaluate our assumptions about soft and hard enforcement mechanisms and their relationship to both compliance processes and compliant behavior.

6. EVALUATING COMPLIANCE Given the aforementioned complexities and nuances of compliance, it should come as no surprise that measuring and evaluating compliance poses a number of challenges to scholars and practitioners alike. First, as with domestic law, there are multiple plausible interpretations of any given international legal instrument and these multiple interpretations can confound attempts at evaluating compliance. Further, information about state behavior is often incomplete or contested, which presents empirical challenges to compliance research. Moreover, the task of measuring compliance is complicated by the close yet complicated relationship between the compliance process and behavioral outcomes. Bernauer argues that observing compliance is difficult because it is empirically difficult to separate the cause and consequence of compliance and/compliant behavior.55 It can be nearly impossible to determine whether states are compliant because they changed their behavior to conform to international legal expectations or if other forces outside of international law precipitated a change in their behavior that is consistent with their international legal obligations or if states’ behavior simply illustrates the types of international commitments they make and subsequently keep. While multivariate econometric models can control for some of these confounding factors and show correlational relationships between international law and compliant-consistent

55 Thomas Bernauer, ‘The Effect of International Environmental Institutions: How Do We Learn More?’ (1995) 49(2) International Organization 351.

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behavior, they are unable to document the causal processes that may link treaty ratification and membership and compliance.56 There are a number of ways that scholars can navigate this empirical and methodological challenge. One option, which is consistent with the idea that compliance is a process, not just an outcome, is to look for causal process observations within the compliance process.57 Second, and relatedly, one approach is to disaggregate states’ compliance commitments into discrete obligations. Returning to the discussion of the Burdov v Russia cases and international human rights tribunals can be illustrative in this respect. After finding a violation, these tribunals give states a list of demands that they need to satisfy in order to comply with the ruling. This means that states need to take actions – and very particular actions – that they might not otherwise do. By disaggregating these actions, we see empirical examples of states taking on the compliance process, rather than just looking for an improvement in human rights, which we could not directly attribute to an international court’s rulings. This approach has the further advantage of treating compliance in the same way as states, meaning as a panoply of obligations and demands from which they choose which to comply and which to ignore or put off.58 The ways in which scholars and policymakers alike measure and evaluate compliance has a clear bearing on the ways in which institutions are designed. For example, states that expect to comply with international law might opt for institutions that are better designed to issue clear mandates with observable benchmarks along the compliance process. Others, namely states that have low expectations of compliance, will want rules that are ambiguous, with few observable benchmarks. These methodological challenges only reinforce the argument that the compliance process starts at the drafting table, not after ratification.

56 Simmons (n 39); Simmons and Hopkins (n 39); Jana Von Stein, ‘Do Treaties Constrain or Screen? Selection Bias and Treaty Compliance’ (2005) 99(4) American Political Science Review 611. 57 Nathaniel Beck, ‘Is Causal-Process Observation an Oxymoron?’ (2006) 14 Political Analysis 347; Henry E. Brady and David Collier (eds), Rethinking Social Inquiry (Rowman & Littlefield 2004). 58 Darren Hawkins and Wade Jacoby, ‘Partial Compliance: A Comparison of the European and Inter-American Courts for Human Rights’ (2010) 6(1) Journal of International Law and International Relations 35; Courtney Hillebrecht, ‘Rethinking Compliance: The Challenges and Prospects of Measuring Compliance with International Human Rights Tribunals’ (2009) 1(3) Journal of Human Rights Practice 362.

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7. CONCLUSION: COMPLIANCE AND/OR EFFECTIVENESS Inherent in most discussions of compliance is the concept of effectiveness: similarly, expectations of compliance imbue most discussions of effectiveness. While the compliance process should, at least in theory, feed into effectiveness, this linear relationship is diluted by the realities of politics. The first locus of these politics is at the design stage. Treaties and regimes are not divine institutions, untouched by politics. Indeed, they are the result of long and potentially contentious political battles in Geneva, New York and state capitals around the world, and their final design and substance can be messy and imperfect. Thus, while states might comply with these institutions, it does not mean, ipso facto, that these institutions are effective. Similarly, the endogeneity problem inherent in studies of compliance means that institutions can be quite effective – meaning that they can reach their stated goals – without fostering compliance. Take, for example, many trade agreements. If states are already compliant with the terms of the agreement as a precondition of entering into the treaty, then the treaty is not necessarily fostering compliance but it could very well be quite effective. Alternatively, consider the Helsinki Protocol, which Ringquist and Kostadinova suggest had no bearing on the reduction of sulfur-dioxide emissions in member states although those same member states did, in fact, witness a reduction of sulfur-dioxide emissions during their membership.59 While states’ behavior was consistent with the treaty and the goals of the treaty were met, it is not clear that either compliance or effectiveness were at work. The following chapter on effectiveness explores this relationship in more detail. In brief, this chapter has argued that compliance is not just an outcome but also a process. Through this process, a variety of actors, from executives to international institutions, legislatures to international institutions, move state policy and practice toward – or away from – conformity with international obligations. If we accept that compliance is not only the end result of a treaty negotiation, tribunal ruling or institutional recommendation but rather an ongoing and iterative process, we can see that this compliance process weaves in and out throughout all of the governance stages and intersects with any number of governance

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Evan J. Ringquist and Tatiana Kostadinova, ‘Assessing the Effectiveness of International Environmental Agreements: The Case of the 1985 Helsinki Protocol’ (2005) 49(1) American Journal of Political Science 86.

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systems. By conceptualizing compliance as a process, instead of only an outcome, the politics of compliance become much clearer.

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3. The effectiveness of international law and stages of governance Rachel Brewster

Effectiveness in international law is often defined in contrast to compliance. Compliance refers to the adherence of state action to international rules, although even very high rates of compliance may say very little about the causal effects of international law if law simply reflects national interests and power politics.1 Effectiveness often refers to the causal effects of international agreements on state behavior.2 Thus, traditional formulations of effectiveness attempt to measure how far law can move a state’s policy. Compliance and effectiveness are not necessarily correlated.3 Ambitious treaties may have moderate levels of effectiveness but low levels of compliance. Treaties that codify customary law may have high levels of compliance but low levels of effectiveness. This chapter attempts to move the discussion of effectiveness beyond this traditional conception of the influence of law to incorporate more dynamic elements of the effects of law. It analyzes how law can shape domestic policy preferences, national decision-making structures and international policy processes at different stages of governance. Specifically, I focus on four stages of governance: rulemaking, decision-making, implementation and legal change. The goal is to give a fuller sense of the mechanisms that influence treaty effectiveness, including institutional design, judicial enforcement, inter-agency negotiation and economic changes. The chapter argues that the same mechanisms can improve effectiveness in one instance but undermine effectiveness in another. 1 John J. Mearsheimer, ‘The False Promise of International Institutions’ (1994) 13 International Security 5; George W. Downs, David M. Rocke and Peter N. Barsoom, ‘Is the Good News about Compliance Good News about Cooperation?’ (1996) 50 International Organization 379; Jack L. Goldsmith and Eric A. Posner, The Limits of International Law (Oxford University Press 2005). 2 Kal Raustiala, ‘Form and Substance in International Agreements’ (2005) 99 American Journal of International Law 581. 3 Lisa Martin, ‘Against Compliance’ in Jeffrey Dunoff and Mark Pollack (eds), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (Cambridge University Press 2012).

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The chapter begins by presenting three definitions of effectiveness, noting the causal effects that each definition measures, and the static and dynamic elements of each. This section also highlights the methodological challenges of measuring effectiveness. The next section turns to how effectiveness varies across different stages of governance. Each stage involves different aspects of the law-making process and implicates various political processes. The chapter emphasizes that there are not straightforward ‘best practices’. Rather, there are tradeoffs between static and dynamic effectiveness, variable effects of shifting the political actors who have domestic policy power, and different optimal strategies for treaty implementation.

1. DEFINING EFFECTIVENESS Effectiveness is used in different ways in the international law and international relations’ literature. In this section, the chapter sets out three common definitions and discusses how these definitions set different standards by which to judge the effectiveness of treaties. Common to all the meanings is the idea that a treaty (or other form of international law) has a causal impact on policy, but the metric to judge that impact varies. These three usages are not an exhaustive list, but illustrate how the meaning of the term changes against different baselines. This section also examines how the meaning of effectiveness differs against static and dynamic conceptions. The most common meaning of effectiveness in international law is the idea that treaties successfully change state policy – ‘change effectiveness’. The emphasis here is on movement away from the status quo – there must be a change to state policy, and the treaty must be the cause of the change. The inquiry is how the state or states would have acted but for the international agreement. Raustiala defines it this way: ‘Effectiveness refers to observable changes in [state] behavior that result from a specified rule. Thus, to say an accord is effective is necessarily to make a causal claim.’4 Raustiala argues that treaties that codify customary international law could not be effective under this definition because states are not altering their behavior.5 This is true under a static definition of change effectiveness. Codifying a customary international law does not demand an immediate change in the state’s behavior. Assuming that states are 4 5

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currently in compliance with the customary rule, a treaty that codifies the law should not lead to an observable change. (If states are not in compliance with the customary rule but start to follow the customary rule due to the treaty, then the treaty could be effective even in a static sense.) This treaty could be effective, however, using a dynamic conception of change effectiveness. The treaty can entrench the current rule and prevent future changes to customary law that would have resulted but for the treaty. This is arguably what bilateral investment treaties have done: defend the status quo customary rule from attack by developing states by cementing the current rule in a treaty.6 Thus, over the longer term, the treaty does change the policy outcome from what would have existed without the agreement. For change effectiveness, the crucial question for the effectiveness inquiry is what caused the states to alter their behavior. For instance, we can ask whether an arms control agreement between State A and State B is effective. To reach an affirmative answer, the treaty must change the policies of the states from what they would have adopted in the absence of the agreement. This is a more challenging empirical question than it first appears. Consider the situation where State A and State B each have plans to invest $5 billion a year in military arms. They negotiate a treaty to lower that amount to $3 billion, and then they both adopt this new policy. It seems relatively straightforward from the sequencing that the treaty caused the policy change, but possibly not. If State A was facing a fiscal crisis and its legislators were intent on lowering its defense spending, State A might have unilaterally lowered its spending to $3 billion regardless of the treaty. Indeed, State A’s leaders (knowing that they will be lowering spending) might have entered into treaty negotiations in an effort to get some international benefits to the inevitable defense spending reduction. If State A could keep its plans to reduce its spending secret, then State A’s leaders could leverage their willingness to reduce spending into an international agreement. This highlights the methodological difficulty in determining the effect of an international agreement against a hypothetical alternative outcome. Simply observing the sequence of events – treaty negotiations, lowered defense spending – commentators might naturally credit the treaty with causing the change. However, the treaty may not have caused the change in State A. Even an exhaustive case study may have difficulty in sorting 6

Jason Webb Yackee, ‘Pacta Sunt Servanda and State Promises to Foreign Investors Before Bilateral Investment Treaties: Myth and Reality’ (2008) 32 Fordham International Law Journal 1550.

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out the effectiveness of the treaty. Would State A have really gone through with its defense reductions without the treaty (static change effectiveness)? What if State B would have lowered its defense spending (for its own political reasons) once State A did even without treaty negotiations? If so, the treaty was inconsequential to the outcome. Even if the treaty did not have a causal effect on the states’ immediate actions, could it have been change effective in a dynamic sense by keeping defense spending low after State A’s fiscal crisis had passed? Predicting what a state would have done but for a treaty obligation is particularly challenging given that there are lots of factors that make changing the status quo and isolating the effect of the treaty obligation difficult. A second common usage of effectiveness is ‘optimal effectiveness’, which measures an agreement based on whether it achieved the most policy change possible given the parties’ constraints. This definition judges the agreement against a hypothetical optimal agreement. It examines whether the parties were able to gain the most ground, not just whether the parties moved away from the status quo. For instance, in trade negotiations, more trade liberalization might be possible if issues are linked (for example, agriculture subsidy cuts are linked with foreign aid and market access is linked with enforcement of domestic labor laws). The failure of negotiators to make these linkages can ‘leave money on the table’. In addition, multiple states holding firm to its negotiating position to achieve a greater share of the agreement’s gains can lead to a collapse in talks even where the parties have a shared win set.7 Comparisons to a hypothetical optimal agreement are particularly important when discussing effective institutional designs. Questions from the scope of the agreement, the width of the membership and the clarity of the text, to the form of dispute resolution, can all be relevant to the effectiveness of the agreement. For instance, a trade agreement may be better able to achieve deeper economic integration if it starts with a smaller, more dedicated membership and then allows other states to accede to the deeper agreement.8 Similarly, the trade agreement may be more robust over a range of economic shocks if it provides for remedies 7

Robert D. Putnam, ‘Diplomacy and Domestic Politics: The Logic of Two-Level Games’ (1988) 42 International Organization 427; Keisuke Iida, ‘When and How Do Domestic Constraints Matter? Two-Level Games with Uncertainty’ (1993) 37 Journal of Conflict Resolution 403; Jongryn Mo, ‘Domestic Institutions and International Bargaining: The Role of Agent Veto in Two-Level Games’ (1995) 89 American Political Science Review 914. 8 George W. Downs, David M. Rocke and Peter N. Barsoom, ‘Managing the Evolution of Multilateralism’ (1998) 52 International Organization 397.

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and compensates but does not deter breach.9 The rational design of institutions’ research project is premised on the idea that negotiators make these tradeoffs between institutional design features on a regular basis. Given certain design factors, we can speculate that some designs are optimally effective – better at achieving greater policy gains than other designs. This definition of effectiveness also poses methodological challenges. There is generally a strong presumption that policymakers adopt the most effective substantive and design provisions available. International negotiators are most often smart people with policy experience and the right incentives to not let the best deal slip through their fingers. Nevertheless, the presumption is just a presumption – negotiators may have poor information, cognitive biases, a lack of creativity or innumerable other deficits that prevent them from reaching the optimal outcome. The presumption is quite strong because social scientists do not have good comparisons against which to judge the negotiated outcomes. For instance, it is hard to argue that a failed WTO trade negotiation had a viable win set without having access to each party’s private information. Static and dynamic conceptions of optimal effectiveness also vary. The most policy-ambitious treaty may have a very broad scope, extremely clear language and a dispute resolution system with remedies capable of deterring breach. On a static level, this treaty may represent the furthest the parties could possibly go – not leaving a penny on the table – and thus qualify as the most optimally effective agreement possible at lowering barriers to trade in the immediate term. In a dynamic sense, however, this agreement might not be particularly robust. The agreement may be too ambitious, leading states to exit the agreement during an economic shock.10 Alternatively, the strong enforcement of the agreement may lead to a political backlash by domestic groups, which then resist any additional liberalization in the future.11 Neither conception of optimal effectiveness is necessarily more correct than the other, but the timing of the evaluation of effectiveness differs. 9 Warren F. Schwartz and Alan O. Sykes, ‘The Economic Structure of Renegotiation and Dispute Resolution in the World Trade Organization’ (2002) 31 Journal of Legal Studies S179; B. Peter Rosendorff, ‘Stability and Rigidity: Politics and Design of the WTO’s Dispute Settlement Procedure’ (2005) 99 American Political Science Review 389. 10 Rosendorff (n 9). 11 Judith Goldstein and Lisa L. Martin, ‘Legalization, Trade Liberalization, and Domestic Politics: A Cautionary Note’ (2000) 54 International Organization 603; Laurence R. Helfer, ‘Exiting Treaties’ (2005) 91 Virginia Law Review 1579.

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The third common usage of effectiveness is ‘policy effectiveness’, which relates to the treaty’s ability to successfully address the policy goal of the treaty. This is the most common definition of effectiveness outside of the international law context. For instance, a treaty to preserve a common resource, such as a shared fish population, is effective only if it succeeds in preventing damage to the resource. Policy effectiveness requires causation (the legal agreement is a cause of outcome) and policy success (the fish population remains stable). It would be possible for the treaty to be ‘change effective’ (the treaty moves states’ policy from what it would have been but for the treaty) and yet not be policy effective. States could have altered their policies – such as limiting fishing – due to the treaty, but the treaty might not achieve the goal of preventing damage to the fish population because the limits were insufficient to produce the desired outcome. In addition, the treaty may not be policy effective because cooperation fails, perhaps because the agreement was not optimally effective. If some parties cheat on their legal obligations because the agreement’s monitoring is insufficient and, subsequently, the fish population collapses, then the treaty may be change effective but not have optimal effectiveness or policy effectiveness. The policy effectiveness of a treaty may be a point of contention. States, NGOs and domestic actors may debate whether a treaty achieves a policy goal or whether the measures taken are sufficient to do so. For instance, the WTO Trade Related Intellectual Property Agreement (TRIPS) seeks to achieve trade liberalization in goods containing intellectual property (IP) by establishing a minimum standard of IP laws a state must offer. Yet critics of the TRIPS Agreement argue that the minimum standard is quite high and de facto decreases freer trade in a whole host of goods including medicines.12 In addition, parties may not know what measures are necessary to meet a policy outcome when drafting a treaty. Negotiations to address global warming at the UN Framework Convention for Climate Change (UNFCCC) are plagued by many bargaining problems, but one is lack of clear scientific evidence regarding what is a sustainable global temperature rise and what levels of greenhouse gas emissions will keep the atmosphere below that temperature.13 This third definition also has static and dynamic meanings. Is the 12

Susan K. Sell, ‘TRIPS and the Access to Medicines Campaign’ (2002) 20 Wisconsin International Law Journal 481; Ellen ‘t Hoen, ‘TRIPS, Pharmaceutical Patents, and Access to Essential Medicines: A Long Way from Seattle to Doha’ (2002) 3 Chicago Journal of International Law 27. 13 Daniel Bodansky, ‘What’s So Bad about Unilateral Action to Protect the Environment?’ (2000) 11 European Journal of International Law 339; Jonathan

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treaty effective at achieving and maintaining the goal of the negotiations? Can the treaty be renegotiated or broadened to encompass new policy challenges or new actors? This chapter attempts to use all three definitions – change, optimal and policy effectiveness – and to highlight when there are differences between the definitions. The chapter also highlights the differences between compliance and effectiveness. Compliance generally does not require any causation – the treaty does not need to lead to any change in state policy for the state to be in compliance with the treaty’s terms. As such, a treaty can enjoy perfect rates of compliance, but not result in any change to state behavior (in a static or dynamic sense).14 In addition, a treaty may have high levels of compliance and yet not achieve the negotiators’ policy goal. The reverse is also true. A treaty can be effective in changing state policy, achieving the maximum policy movement and the policy goal without having perfect compliance.

2. STAGES OF GOVERNANCE This section turns to an examination of the relationship between law and politics at different governance stages. There is no definitive line between law and politics – almost all politics takes place against a background of legal rules, but the creation and meaning of legal rules is obviously shaped by politics. The section follows up on this volume’s call for mid-range theorizing by analyzing the domestic and international mechanisms that influence the effectiveness of an international agreement. These mechanisms are not a one-way ratchet towards more effectiveness. Some mechanisms – such as shifting the domestic actor responsible for implementing an international agreement – can increase or decrease the effectiveness of an international agreement depending on the interests of the relevant actor. Political actors may care about policy – and not international law per se – and thus attempt to increase the effectiveness of some agreements, and to decrease the effectiveness of others. For instance, a government coalition controlled by the Green Party may seek to establish domestic rules that would increase environmental protection (in keeping with climate change treaties) but decrease weapons spending (by decreasing the overall resources of a military alliance treaty). B. Wiener, ‘Think Globally, Act Globally: The Limits of Local Climate Policies’ (2007) 155 University of Pennsylvania Law Review 1961. 14 Martin (n 3).

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This section proceeds in four parts. The first part explores the relationship between effectiveness and rulemaking. This section focuses on the link between form and substance in treaty negotiation. How effective a treaty will be in changing a state’s behavior (in static or dynamic senses) and in achieving the treaty’s policy goals will depend on the agreement’s substantive rules, as well as the institutional form the negotiators select. The second part turns to effectiveness and decisionmaking, and highlights how shifting the domestic actors who have input in the policy process can change outcomes. The third part discusses effectiveness and implementation, and emphasizes how this area becomes more complicated when states regulate private parties instead of their own actions. The last part examines effectiveness and legal change, and explores how existing obligations influence the development of political preferences for later legal agreements. 2.1 Effectiveness and Rulemaking Questions of effectiveness are deeply intertwined with the negotiation process. This section explores how the negotiation and rulemaking process sets a trajectory for an agreement’s effectiveness. Questions of substance are generally the core work of treaty negotiations. What are the legal obligations? How deep or shallow should the obligations be? In addition to substantive negotiations (and often driven by substantive negotiations), governments must also make institutional design choices. Even the decision not to establish an organizational body, preferred method of interpretation, or dispute resolution procedure is itself a choice. The lack of procedural rules can reflect the negotiators’ preference to rely on the default rules established in the Vienna Convention or may indicate that the negotiators did not believe that the benefits of deviating from the Vienna Convention’s default rules justified the investment of political capital. Substance and institutional design are linked in the rulemaking stage of governance on multiple levels. At the most functional level, the types of strategic interaction states have in a substantive issue area can drive institutional design features. Prisoner’s dilemma-type issues (for example, trade, arms control and common resource sharing) are prone to defection but can often be solved by surveillance and reciprocity. As such, the effectiveness of the agreement is generally improved if the negotiating process includes monitoring and sanctioning mechanisms. Coordination games (for example, standard-setting treaties) have fewer defection concerns and thus need fewer mechanisms to observe and enforce treaty rules. Games that depend less on reciprocity (for example, human rights

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agreements) may have significant defection potential but are harder to enforce. Here, monitoring and out-of-agreement sanctioning mechanisms may be necessary. The link between substance and institutional design also extends to other aspects. The rational design project identifies a number of factors that can drive institutional design and, implicitly, effectiveness.15 Koremenos posits that some treaties might be most effective if they are made more flexible.16 Flexibility refers to the idea that the treaty – by its own terms – can create conditions where the member states can escape the legal binds of the treaty. Koremenos argues that the more uncertain the treaty’s payoffs to the parties, the more the parties will want to open the treaty to renegotiation at a later date, particularly if the informational environment is relatively clear. This flexibility – adding in renegotiation provisions ex ante – allows the parties to agree to a deeper agreement than it would have otherwise. Flexibility provisions can encompass far more than renegotiation provisions. The crucial issue here is how to finesse the escape mechanism: the mechanism needs to be difficult for states to use in normal times but available to states in difficult times. Sykes discusses how safeguards – trade provisions that allow governments to raise tariffs on goods when there is an unexpected surge of imports that damages a domestic industry – act as a political escape clause.17 Governments can protect against unexpected losses by imposing higher duties when certain pre-established conditions are met. Providing an escape clause protects governments from low-probability but high-impact events. While it injects uncertainty over partner states’ future policies, Sykes maintains that these trades represent beneficial, politically efficient breaches: situations where the political gains to the breaching party outweigh the costs to the breached upon party. Rosendorff and Milner similarly argue that safeguard provisions represent an optimal institutional design because

15 Barbara Koremenos, Charles Lipson and Duncan Snidal, ‘The Rational Design of International Institutions’ in Barbara Koremenos, Charles Lipson and Duncan Snidal (eds), The Rational Design of International Institutions (Cambridge University Press 2003). 16 Barbara Koremenos, ‘Loosening the Ties That Bind: A Learning Model of Agreement Flexibility’ (2001) 55 International Organization 289. 17 Alan O. Sykes, ‘Protectionism as a “Safeguard”: A Positive Analysis of the GATT “Escape Clause” with Normative Speculations’ (1991) 58 University of Chicago Law Review 255.

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they generate a more robust and stable agreement across various external shocks.18 A dispute resolution system can also potentially be a flexibility mechanism. Although most discussions highlight how dispute resolution systems can make the agreement more binding on the parties,19 the remedy rules that back up dispute resolution can effectively permit more deviations.20 Parties have more policy choice where remedy rules permit the parties to pay a set level of compensation for breach (or allow compensation with other in-kind transfers).21 Such remedy rules can essentially obtain ‘price’ compliance by giving states the option of complying with the treaty’s substantive rules or breaching with compensation. In addition, the reputational costs of breach may be lower where the party pays the required remedy because the treaty members understand that paying the remedy is permitted by the agreement’s terms.22 Returning to conceptions of effectiveness, states are more likely to join an agreement that changes the status quo (change effectiveness) if the agreement has more flexibility. States can minimize future losses from unforeseen shocks or uncertain payoffs by making the agreement more contingent in future years. Dispute resolution mechanisms with wide jurisdiction and very high remedies can act in the opposite direction by discouraging these states from joining the agreement (or demanding little change in the status quo in substantive negotiations). Flexibility may decrease the dynamic change effectiveness of an agreement by making it easier to roll back the agreement through planned renegotiation. This cost may be minor, however, because it is difficult for states to commit credibly to non-renegotiation clauses in any situation. Turning to optimal effectiveness, flexibility mechanisms are designed to allow the parties to achieve the deepest possible agreement given ex 18

B. Peter Rosendorff and Helen V. Milner, ‘The Optimal Design of International Trade Institutions: Uncertainty and Escape’ (2001) 55 International Organization 829. 19 Anne-Marie Burley and Walter Mattli, ‘Europe before the Court: A Political Theory of Legal Integration’ (1993) 47 International Organization 41; Laurence R. Helfer and Anne-Marie Slaughter, ‘Toward a Theory of Effective Supranational Adjudication’ (1997) 107 Yale Law Journal 273; Kenneth W. Abbott and Duncan Snidal, ‘Hard and Soft Law in International Governance’ (2000) 54 International Organization 421. 20 Rachel Brewster, ‘Pricing Compliance: When Formal Remedies Displace Reputational Sanctions’ (2013) 54 Harvard International Law Journal 259. 21 Schwartz and Sykes (n 9); Rosendorff (n 9). 22 Brewster, ‘Pricing Compliance: When Formal Remedies Displace Reputational Sanctions’ (n 20).

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ante negotiating positions and the informational environment. Thus flexibility mechanisms can be crucial to achieving optimal effectiveness by allowing the parties to agree to the maximum possible set of substantive issues. Evaluating the agreement ex post, it may turn out that the agreement would have been more optimally effective with less flexibility – if renegotiation was not necessary then the parties might have been able to rely more on stricter rules. In addition, some parties may use flexibility and an uncertain informational environment to cheat on the agreement in a manner that is not easily detectible. But given the parties’ knowledge at the time of the negotiations, flexibility mechanisms will be essential for optimal effectiveness for a substantial number of treaty agreements. All else being equal, optimal effectiveness is most likely to lead to policy effectiveness. That is, the deepest agreement possible has the best shot of achieving the treaty’s policy goals. As such, flexibility mechanisms most likely increase the policy effectiveness of an agreement given ex ante constraints. However, the two concepts will not always move in lockstep. A policy effective treaty may not be optimally effective – the agreement is not as deep as it could have been – and, yet, be sufficient to meet the treaty’s policy aim. Likewise, an optimally effective agreement may not be policy effective. The most ambitious agreement possible given the parties’ bargaining constraints may be insufficient to resolve successfully the policy challenge. Alternatively, the parties may misunderstand the nature of the policy challenge and the agreement (even if optimally effective) may not succeed. 2.2 Effectiveness and Decision-Making Treaties change states’ policies by changing the decision-making of state actors. If the treaty is to have a causal effect on government behavior, then the decisions of states have to be different from what they would be without the treaty (either immediately or in the future). There are a wide variety of different pathways whereby international agreements can shift decision-making. For instance, Goldstein argues that the U.S.-Canadian free trade agreement effectively changed U.S. anti-dumping and countervailing duty law by transferring Canadian cases on these issues out of the U.S. federal court system to a specialized bi-national panel.23 Simply changing the judges hearing the case – not the law itself – resulted in very 23

Judith Goldstein, ‘International Law and Domestic Institutions: Reconciling North American “Unfair” Trade Laws’ (1996) 50 International Organization 541.

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different outcomes. This part provides a non-exhaustive review of some of these mechanisms. As this part highlights, who has decision-making power dramatically influences an agreement’s policy effectiveness. 2.2.1 Courts One of the primary ways that treaties can change state policy is to shift policy control within the domestic government to different actors. The most common shift in policy control is when a state joins a treaty regime and involves the state’s judicial system to a greater extent in policymaking. For instance, if the domestic legal system automatically makes treaty law directly effective and superior to national law, then the judiciary can be expected to become involved in maintaining the state’s adherence to the treaty’s requirements (as interpreted by the domestic courts). Involving the judiciary in the policy process can be quite powerful in changing state policy. Foreign or domestic private actors (depending on the jurisdictional and standing rules of the domestic court system) can sue national governments in the nation’s courts. The courts can then order the national government to change its policy if the government is not conforming its policy to the treaty law. In countries with a strong rule of law system, governments will generally comply with court orders even if the judiciary lacks coercive power. International courts can also partner with domestic courts to leverage the domestic court’s policy power. Burley and Mattli describe how the European Court of Justice used a preliminary reference procedure to have its rulings on European Community law executed into domestic law by national courts.24 Not all states make international law directly effective and superior to domestic law, and some states make only certain types of international law enforceable. The United States’ courts determine whether a treaty is ‘self-executing’ before deciding whether the treaty is enforceable directly into domestic law.25 Self-execution is a murky doctrinal area but courts are more likely to find a treaty to be self-executing if the treaty is directed to individuals (rather than the state), bilateral and exclusively within the federal government’s policy power. U.S. courts have found most contract and sales treaties, such as the Convention on the International Sale of Goods, to be self-executing. Even if a treaty is self-executing, it is not necessarily superior to domestic law. The United 24

Burley and Mattli (n 19). Curtis A. Bradley, International Law in the U.S. Legal System (2nd edn, Oxford University Press 2015). 25

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States has adopted a ‘last-in-time’ rule, meaning that if two laws are in conflict (such as a treaty and a statute), the more recently enacted law wins. As a result, courts may not enforce even self-executing treaties if there is a contrary, more recent law. Courts may attempt to finesse such conflicts between self-executing treaties and more recent contrary law by employing the Charming Betsy canon of construction, which advises courts to read international legal obligations and domestic law together as much as possible. Nevertheless, the ability of private parties to use courts to require the federal government to comply with treaty obligations is more limited in the U.S. than in other more internationally integrated legal systems. Other legal systems only make certain types of international law enforceable domestically. Most notably, this occurs in international trade law. Many European states, which would otherwise allow international rules to pre-empt state law, refuse to give such effect to GATT or WTO law. Bronckers maintains that the members of the European Community refused to give effect to GATT law because the regime included too many exceptions, was too diplomatic and was not sufficiently legally rigorous.26 After the WTO system firmed up the rule-of-law credentials of the multilateral trade regime, the European Court of Justice continued to exclude it from direct effect. Eeckhout argues that this decision was based on internal institutional concerns: the ECJ did not want to limit the bargaining power of other EU institutions in their bargaining with trading partners over compliance.27 What is interesting here is that this concern seems generally applicable to international law (desire to maintain bargaining flexibility) but the ECJ doctrinally confined this concern to WTO law. It is possible that the EU’s competence and the WTO’s competence overlap to a sufficient degree that the flexibility concerns take on heighted concern with the WTO but not other issue areas. 2.2.2 Legislatures to executives An additional means by which treaties shift decision-making within the state is to transfer the primary policy forum between political branches. If no international agreement exists on an issue, then the domestic legislature presumably has primary policy control over the issue. However, once an international agreement covers that issue area, the legislature’s primary role may be diminished and the executive’s power enhanced. The 26 Marco Bronckers, ‘The Effect of the WTO in European Court Litigation’ (2005) 40 Texas International Law Journal 443. 27 Piet Eeckhout, External Relations of the European Union (Oxford University Press 2004).

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fact that the executive speaks for the nation in international affairs means that the transfer of policies from the national to the international level increases the executive’s relative power.28 Consider treaties addressing environmental policy. In the absence of a treaty, a national legislature will generally have jurisdiction over environmental policy. The legislature can establish whatever policy best fits the political, economic, and social demands of the population. Many environmental problems, however, require collective action, so there is a natural pull towards international coordination of national policies. If a government signs an environmental treaty, then much of that policy jurisdiction may be de facto shifted to the executive. If there is a desire to change the treaty’s established status quo, then the executive needs to renegotiate the treaty. If there is a dispute over compliance, the executive normally directs the legal arguments to address the issue and can negotiate a solution. The legislature goes from being the first mover in environmental policy with the executive in a secondary policy position to the reverse. With treaty law, the executive becomes the primary policy mover – it has the ability to negotiate with international partners – and the legislature moves into a secondary role of approving or disapproving the result. While this result holds regardless of whether the domestic order is a presidential or parliamentary system, the effects are the most dramatic in a presidential system. The growth of international law can dramatically reshape the landscape of de facto policy power by transferring greater policy power to the executive. It can additionally lead the president to reach into federal-state policy issues that are generally framed as core domestic law issues. For example, when the International Court of Justice found that the United States had breached the Convention on Consular Relations by failing to give Mexican nationals arrested in Texas access to a representative from the Mexican consulate, President George W. Bush ordered the State of Texas to provide new trials to the affected individuals. State-level criminal law is considered to be a fundamentally domestic concern, yet an international agreement gave the president an interest – and potentially a policy role – in this area. The U.S. Supreme Court subsequently voided the president’s order, finding that the president did not have the constitutional authority to demand that Texas retry 28 Rachel Brewster, ‘The Domestic Origins of International Agreements’ (2003) 44 Virginia Journal of International Law 501; Tom Ginsburg, ‘International Substitutes for Domestic Institutions: Bilateral Investment Treaties and Governance’ (2005) 25 International Review of Law and Economics 107.

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the affected individuals. Nevertheless, the episode demonstrates how far treaty law can expand the executive’s range of potential policy claims. The shift is present but less dramatic in parliamentary systems. Parliamentary governments are generally run by a party or coalition of parties that constitutes a majority of the legislature. The majority coalition selects the executive and top ministers from its own ranks. As a result, there is less separation between the executive and the legislature in a parliamentary system than in a presidential system. However, there can still be important shifts in outcomes from moving a given policy from the legislative to the executive forum. First, the executive has greater control over the agenda-setting process in international affairs. There may be a range of policies that the majority coalition would be willing to accept. If a legislative committee has agenda-setting power then it may select a different option than the executive would select. Treaties can move an issue area – environmental policy, health and safety, immigration and criminal law protections – from legislative agenda control to executive control. In doing so, the policy outcome may change. Returning to the environmental law example, the executive may be able to negotiate an international agreement that requires the nation to spend $100 million on pollution remediation. If it was purely a domestic law matter, the legislative committee tasked with pollution remediation might have chosen to spend only $80 million. Yet given the choice between rejecting the treaty and spending $20 million more than they prefer, the legislature may well choose to accept the treaty and higher spending. Second, agenda setting may provide some parties in the coalition with greater policy power. After the position of prime minister, one of the most desired posts in parliamentary administration is that of foreign minister. The nature of coalition governance means that the prime minister and their cabinet are not always on the same policy page, and there is less of a clear hierarchy. Although a prime minister can generally fire ministers or otherwise shuffle their cabinet, the ouster of a foreign minister may break up the coalition and force the formation of a new government. Consequently, foreign ministers often have a degree of independence from the prime minister. Treaty law favors the international formation of policy, and the foreign minister is the presumptive head of international negotiations. The party that holds the foreign minister position may thereby gain significantly more policy power over a range of issues than it would if it held a domestic post.

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2.2.3 Agencies International agreements may also shift policy decision-making power to domestic or international agencies. Within domestic politics, the internationalization of an issue can alter the scope of agencies that have a role in policy formation. In the United States, the inter-agency policy process is often described as a minuet (although it is perhaps more of a wrestling match) between the relevant agencies. In the normal course, one agency will take the lead but multiple agencies will have input into the final regulatory outcome. For instance, environmental regulations of power plants may involve the Environmental Protection Agency and the Department of Energy. If the regulations implicate international climate agreements, then the State Department (State) and possibly the Trade Representative’s Office (USTR) would also be included. Including State and USTR in the mix will almost certainly have an influence on the final policy outcome. Both organizations will be acutely aware of international requirements and work to make sure that the final regulations do not breach international rules. In addition, these organizations are cognizant of other states’ sensitivities (even if not embodied in legal requirements) and may try to more subtly shape the form and substance of regulatory rules to prevent international disputes. National governments may also delegate to domestic agencies the authority to create international accords on specific issues, such as banking rules, securities law or corporate disclosure requirements. Particularly in market regulation, national legislatures have been delegating more power to agencies to coordinate rulemaking. For instance, when passing the Dodd-Frank Act, which regulated the banking and securities sector after the 2008 financial crisis, the U.S. Congress instructed the Securities and Exchange Commission to negotiate with foreign governments regarding the regulation of conflict minerals.29 Once these agreements are made, the legislature’s ability to revise the agency’s actions is limited because it requires disrupting internationally negotiated policy choices. As a result, these agency decisions are more entrenched than other purely domestic agency rules. 2.2.4 Policy effectiveness Who within the government has policymaking authority matters significantly in determining the policy effectiveness of a treaty agreement (less 29

Jean Galbraith and David T. Zaring, ‘Soft Law as Foreign Relations Law’ (2015) 99 Cornell Law Review 735; Galit A. Sarfaty, ‘Shining Light on Global Supply Chains’ (2015) 56 Harvard International Law Journal 419.

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so, here, with change effectiveness and optimal effectiveness). This is not a unidirectional phenomenon where domestic actors are consistently pushed towards greater concern for international law. Rather, government actors often have their own policy preferences that can lead them to promote domestic decisions that make some treaties more effective and others less so. The aggregate influence of these actors on a treaty’s policy effectiveness is difficult to theorize at a high level of abstraction. There is, however, a structural aspect to this ‘who decides’ analysis. Treaties generally push decision-making to international fora where national executives and executive agencies have greater agenda-setting power than in the domestic realm. More than domestic legislators, national executives and agencies are judged on their success on transnational policy issues. For instance, the U.S. president is judged by voters on his or her policy success in foreign affairs, as well as domestic welfare, more than members of Congress are. As such, executives and executive agency officials are more likely to internalize international pressures to achieve multilateral cooperative goals more than domestic legislators are. This is an influence at the margin. It does not assure that national executives and agencies will aim to make use of their policy authority to enhance the policy effectiveness of international agreements. Nonetheless, it does systematically add pro-policy effectiveness weight into multi-factor analysis of the domestic decision-maker. 2.3 Effectiveness and Implementation Implementation would seem to be a straightforward process. When a state is modeled as a unitary actor, the government actor need only change its own behavior. Even in disaggregated models, most implementation questions are addressed as matters of state fiat. The state issues an order, and it is carried out. While this might be the case for some issues, implementation is frequently a more complicated and political process. The most obvious concerns about implementation go to questions of state capacity. The state may not have the de facto or de jure authority to regulate the issue area. In federal systems, national governments may not have the legal authority to regulate sub-federal actors in certain issue areas. The domestic legal structure determines that certain areas are reserved for local control. As a result, national governments may not be able to implement fully certain treaty obligations.30 For instance, the 30 In Missouri v Holland [1920] 252 US 416, the US Supreme Court ruled that the federal government was not constrained by federalism limits when acting

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federal government may not be able to prevent local governments from offering subsidies that breach WTO obligations or to demand that local police give foreign criminal suspects access to their consulates. National governments are still responsible for the actions of all domestic state officials under international law, but national governments may not have the authority under domestic law to alter the local policy. This can occasionally result in international-law-free areas of policy because the national government cannot regulate the area, and local governments do not have the authority to create international law. In addition, governments may simply lack the coercive or regulatory authority to implement their treaty obligations. Chayes and Chayes maintain that much of the failure of treaties to achieve their goals can be attributed to a lack of regulatory capacity.31 They argue that technical and financial assistance is thus key to successfully implementing treaty law. Other commentators highlight the relative lack of resources between developing states and multinational corporations. Major corporations often have a net worth and financial sophistication that is greater than the developing nations that attempt to regulate them.32 In addition, developed and developing governments may be vulnerable to bribery that leads government officials to use public resources for private gain.33 Besides state capacity, there are often ambiguities within treaty law about what implementation requires. This is particularly true with the most recent wave of international economic law that requires states to regulate private-market actors. Traditional economic agreements have generally required governments to open up markets to greater private activity. Trade agreements have lowered barriers to trade, restricted states’ ability to use subsidies to promote domestic industry and limited the use of export restraints. Bilateral investment treaties require states to pursuant to a treaty. Although Missouri v Holland currently remains good (if vulnerable) law, federalism limits in practice constrain national policymakers. Curtis A. Bradley, ‘The Treaty Power and American Federalism’ (1998) 97 Michigan Law Review 390; Curtis A. Bradley, ‘The Treaty Power and American Federalism, Part II’ (2000) 99 Michigan Law Review 98; Edward T. Swaine, ‘Does Federalism Constrain the Treaty Power?’ (2003) 103 Columbia Law Review 403. 31 Abram Chayes and Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Harvard University Press 1995). 32 Mathias Koenig-Archibugi, ‘Transnational Corporations and Public Accountability’ (2004) 39 Government and Opposition 234. 33 Susan Rose-Ackerman, ‘“Grand” Corruption and the Ethics of Global Business’ (2002) 26 Journal of Banking and Finance 1889.

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refrain from limiting foreign investment or demanding local ownership. Both of these types of economic agreements relate to the state’s own economic activity and generally prohibit the state from taking any actions that breach these rules. Of course, markets do not exist without state regulation – states must provide property rights, contract enforcement, monetary and fiscal policy, and security for ‘free’ markets to function34 – and new international economic agreements demand that states regulate private actors more. New agreements require that states pass and enforce laws regulating private-market action, including competition, anti-bribery and intellectual property. Implementation of these new economic agreements has been fraught, in no small part due to uncertainty about what implementation requires. States can easily enact laws regulating private market actors, but what level of enforcement does ‘implementing’ the treaty entail? For instance, the 1995 OECD Anti-Bribery Convention, which requires parties to pass statutes criminalizing foreign bribery, has been ratified by all the members of the OECD and seven non-member states. The Convention has been very successful in having governments enact the requisite legislation, but dramatically less so in enforcement.35 However, after 15 years in existence, over half of the members had never prosecuted an individual or firm for foreign bribery.36 Unlike agreements covering solely their own behavior, it is unreasonable to expect that governments will investigate and prosecute all instances of foreign bribery, but what level of enforcement qualifies as implementing the treaty? Governments’ efforts to implement the treaty engage in a host of value tradeoffs, including concepts of prosecutorial discretion, whether to grant private rights of action, and national enforcement prioritization.37 The same goes for pursuing firms who abuse monopoly power or infringe on others’ 34

Dani Rodrik, Second-Best Institutions (2008) (working paper No. W14050, National Bureau of Economic Research). 35 Jo-Anne Gilbert and J.C. Sharman, ‘Turning a Blind Eye to Bribery: Explaining Failures to Comply with the International Anti-Corruption Regime’ [2014] Political Studies, accessed 10 September 2016 at http://dx.doi.org/ 10.1111/1467-9248.12153. 36 Organisation for Economic Co-Operation and Development, ‘Working Group Data on Enforcement of the Anti-Bribery Convention’, OECD Working Group on Bribery: Annual Report on Activities Undertaken in 2012 (2013), accessed 10 September 2016 at http://www.oecd.org/daf/anti-bribery/AntiBribery AnnRep2012.pdf. 37 Rachel Brewster, ‘The Domestic and International Enforcement of the OECD Anti-Bribery Convention’ (2014) 15 Chicago Journal of International Law 84.

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intellectual property. Ideas of good faith demand that governments put some effort into regulating these private-market actors. However, that does not resolve the question of how much effort is sufficient. The treaties are generally silent on this issue. Without clear legal requirements, the impact of these treaties is particularly contingent on the efforts governments are willing to undertake to implement the agreement. This, in turn, depends on the political preferences of government leaders and the enforcement strategies available to them. In the anti-bribery context, the United States has been a rigorous enforcer of foreign anti-bribery law but has done so by casting a very wide jurisdictional net, pursuing claims against many national firms but also a large swath of foreign firms.38 In fact, seven of the top ten largest fines against corporations under the U.S. Foreign Corrupt Practices Act (FCPA) have been levied against foreign firms.39 Arguably, the robust enforcement of the FCPA is politically palatable because the prosecutors target domestic companies and their foreign competitors. Similar dynamics hold with competition law enforcement. The U.S. Department of Justice rigorously enforces a strict and punitive (treble damages) antitrust law, but this applies to extra-territorial, as well as domestic, conduct. Implementation challenges most immediately implicate change effectiveness. An agreement may appear to demand movement in the status quo – for instance, demanding that the state enact new policies or enforce domestic rules against private actors – but whether this change actually occurs depends on government efforts. Thus, whether an agreement is effective in the change conception depends on both the capacity of the state and the political will of the government, particularly where the legal language of the treaty is ambiguous. Evaluating policy effectiveness can become complicated when considering implementation issues when the government laws are not enforced. For many agreements, such as anti-corruption or human rights agreements, the treaty regimes themselves are intermediate steps to achieving the policy outcome. That is, the goal of minimizing corruption or human rights violations involves legal change but also norm development in private and public bodies. Legal requirements that advance these goals on 38

Stephen J. Choi and Kevin E. Davis, ‘Foreign Affairs and Enforcement of the Foreign Corrupt Practices Act’ (2014) 11 Journal of Empirical Legal Studies 409. 39 Richard Cassin, ‘With Alstom, Three French Companies Are Now in the FCPA Top Ten’, accessed 10 September 2016 at http://www.fcpablog.com/blog/ 2014/12/23/with-alstom-threefrench-companies-are-now-in-the-fcpa-top-t.html.

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paper but do not lead to observable changes in action may have detrimental effects on norm development.40 These legal agreements can appear to be cheap talk, at least to a wide swath of the regime’s members, and thus promote the idea that the regime’s value is not a ‘real’ priority and damaging the treaty’s policy effectiveness. Even when the legal rules support the norm development, there can be a significant gap between the static and dynamic effects. For instance, European governments de facto did not enforce the OECD Anti-Bribery Treaty for the first ten years of the treaty’s existence, but the treaty provided prosecutors and private actors with important tools to encourage policy change when anticorruption norms emerge.41 2.4 Legal Change Legal regimes rarely face a definitive end. Political conditions change, new norms emerge, domestic interests shift and new demands are placed on international institutions. Even the end of the Cold War resulted in a refashioning, not a dissolution, of the North Atlantic Treaty Organization’s (NATO) military alliance.42 The concept of legal change invites a consideration of dynamic concepts of optimal effectiveness. Do the form and substance of an agreement set parties on a particular path? Is it better to have an ambitious treaty with expected near-term compliance problems to get states moving towards a target? Or is better to cement cooperation by establishing achievable goals?43 Will strict dispute resolution serve as a credible commitment that will bind states to a treaty goal, or will rigidity lead to political backlash against the regime?44 These questions involve speculation into how future political, economic and ideational change will stress and reshape existing legal regimes. This section cannot begin to anticipate the full scope of factors that can cause legal change, so it focuses on two aspects: substantive incrementalism and membership limits. 40 Robert D. Cooter, ‘Three Effects of Social Norms on Law: Expression, Deterrence, and Internalization’ (2000) 79(1) Oregon Law Review 1. 41 Elizabeth K. Spahn, ‘Multijurisdictional Bribery Law Enforcement: The OECD Anti-Bribery Convention’ (2012) 53 Virginia Journal of International Law 1. 42 Robert B. McCalla, ‘NATO’s Persistence after the Cold War’ (1996) 50 International Organization 445. 43 Gabriella Blum, Islands of Agreement: Managing Enduring Armed Rivalries (Harvard University Press 2007). 44 Goldstein and Martin (n 11).

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Substantive incrementalism describes the idea that initial policy instruments can sometimes fail to achieve a policy goal, and thus, interim half measures are optimal. The cause might be political (there is not currently a sufficient political coalition to enact the full policy) or informational (experimentation is necessary to understand what set of policies best achieves the desired outcome).45 The decision on whether to push forward towards a comprehensive approach or an incremental one is necessarily dependent on the idea of legal and political change. How will the future states of the world unfold, and will later sets of political actors be able to achieve more or less? The optimal level of incrementalism often depends on the expected economic/political change from the agreement, the anticipated development or decline of key norms, the costs of delayed action and changes in the negotiating power of key states. The tradeoffs for optimal effectiveness in incrementalism are perhaps clearest in the international trade area. In multilateral trade negotiations, the system has embraced the idea of substantive incrementalism – progressively easing barriers to trade over multiple rounds and decades rather than trying to eliminate all barriers to trade at once. Even political actors who would prefer more radical measures often accept partial moves towards liberalization to minimize economic adjustment costs, gain the necessary domestic legal support for the measures and prevent political blowback from the policies that would derail future liberalization. Importantly, trade incrementalism also has somewhat predictable structural effects on the economy.46 Export-oriented industries expand while import-competing industries decline, and the resources of each group shift accordingly.47 Although economic shocks or political organization can complicate this picture, it does a decently good job of explaining continued political support of market liberalization through the GATT and WTO rounds. Here, an incremental treaty is probably 45

Charles E. Lindblom, ‘The Science of “Muddling Through”’ (1959) 19 Public Administration Review 79. 46 John H. Barton and others, The Evolution of the Trade Regime: Politics, Law, and Economics of the GATT and the WTO (Princeton University Press 2008). 47 The same may not be true of preferential trade agreements that result in more trade diversion than trade creation. These agreements may decrease future support for more liberalizing agreements. Daniel Y. Kono, ‘Are Free Trade Areas Good for Multilateralism? Evidence from the European Free Trade Association’ (2002) 46 International Studies Quarterly 507; Daniel Y. Kono, ‘When Do Trade Blocs Block Trade?’ (2007) 51 International Studies Quarterly 165.

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more effective at achieving liberalization over the longer run than a more comprehensive, but contentious, agreement. Substantive incrementalism is not always the best approach to achieve optimal effectiveness (or policy effectiveness). In the environmental context, the costs of waiting may be particularly high. In addition, policymakers may lose the momentum of a cresting policy norm or popular demand for action.48 The substantive choices of earlier treaties can also continue to frame future legal agreements in a manner that is counterproductive. For instance, the Kyoto Protocol to the UNFCCC exempted non-Annex One states (developing states) from greenhouse gas emissions limits. This framing created negotiating hurdles in later climate change negotiations when developing countries resisted any obligations, citing this Kyoto principle.49 Similar ideas apply to decisions about whether to limit membership in international agreements. Often, policy issues are most efficiently addressed with a large treaty membership. The economic gains from trade are greater (and trade diversion less likely) the larger the agreement. Environment preservation can be most comprehensively addressed if all the states with access to the resource are included. Yet policymakers may opt to limit the membership in international agreements to a smaller number of states. The tradeoff here is the anticipated depth of the agreement that can be achieved by a smaller, like-minded group of states versus a shallower and broader agreement. If excluded states later join the deeper agreement (often due to the increasing costs of nonmembership), then policymakers may be able to achieve a deeper agreement with a broad membership that would not have been possible at first.50 However, if excluded states remain outside of the agreement or form a competing agreement, then the treaty may be less optimally effective over the long term than a shallower treaty would have been.

48 Richard J. Lazarus, ‘Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future’ (2008) 94 Cornell Law Review 1153. 49 Robert Falkner, Hannes Stephan and John Vogler, ‘International Climate Policy After Copenhagen: Towards a “Building Blocks” Approach’ (2010) 1 Global Policy 252. 50 Downs, Rocke, and Barsoom (n 9).

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3. CONCLUSION Law and politics are mutually dependent. Law provides a background of rules, procedures, and norms that structure and shape political dialogue. Reciprocally, politics establishes key legal institutions and prioritizes certain legal norms, both for enforcement and development. The line between law and politics is porous, and, in practice, a division between the two can be hard to draw. Similarly, the divide between domestic and international policy processes is permeable. The enforcement of law is politically dependent in both realms and even as law undergirds political interactions.51 International agreements can serve domestic policy goals as well as transnational ones. Domestic political actors may select international policymaking fora to reframe, weaken or entrench domestic policy options. The integrated nature of law and politics is keenly on display when examining the effectiveness of international agreements. Legal agreements are dependent upon political processes for support and development while simultaneously shaping and reframing domestic and international policy processes. This chapter explores a limited number of the many ways in which law and politics meet and interact to determine state behavior. The chapter examines how the relationship changes across different stages of governance, including rulemaking, decision-making, implementation and legal change. In each stage the critical mechanisms vary, highlighting different negotiating considerations and levers of bargaining power. Of course, many additional actors and issues are important: the role of NGOs as norm creators and policy advocates, the pressure of markets in economic regulation, the rise of political ideologies at the state level and, of course, economic and military resources. This initial foray into mid-level theorizing of effectiveness opens more research questions than it forecloses.

51 Christopher A. Whytock, ‘Thinking Beyond the Domestic-International Divide: Toward a Unified Concept of Public Law’ (2004) 36 Georgetown Journal of International Law 155; Jack Goldsmith and Daryl Levinson, ‘Law for States: International Law, Constitutional Law, Public Law’ (2009) 122 Harvard Law Review 1791.

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4. International law in domestic courts David L. Sloss and Michael P. Van Alstine

1. CONCEPTUAL OVERVIEW The central premise of this volume is that the relationship of law and politics in international law varies depending on the sites where the relationship unfolds. In this chapter, we analyze that premise in the creation, interpretation, recognition, implementation and modification of international norms in domestic courts. We will explain, however, that beyond these ‘stages of governance’, a decisive factor in explaining the engagement of domestic courts with international law is the nature of the legal rule at issue. Specifically, our analysis demonstrates that the willingness of domestic courts to view an international issue as one of law, not politics, varies in important ways depending on whether they are being asked to apply a horizontal (state-to-state) rule, a vertical (state-toprivate party) rule, or a transnational (private-to-private) rule. 1.1 The ‘Judicialization’ of International Law In their origin, composition, and institutional competence, domestic courts are legal institutions. Their stock in trade is the identification and application of norms of a legal, not political, nature. It is nonetheless widely accepted that courts are political actors as well. Political scientists have explained convincingly that courts (especially supreme courts) do not long adhere to policies ‘substantially at odds with the rest of the political elite’.1 Domestic courts are constituted by, and more generally a product of, their home polity. As a result, it is quite unlikely that they ever could be fully insulated from the cultural, social and political environments in which they function. The relative influence of law and politics in the work of domestic judicial bodies thus is of intense scholarly interest.

1 Robert A. Dahl, ‘Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker’ (1957) 6 Journal of Public Law 291.

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All of this plays out in international law as well. Indeed, in recent years scholars have demonstrated convincingly the increasing significance of domestic courts in this realm, not only as legal actors but also as agents in the development of international norms.2 Enthusiasts have championed the ‘globalization of judicial power’.3 Some, such as AnneMarie Slaughter, have highlighted the purely political aspects of ‘judicial globalization’.4 The focus for these scholars is on the means by which judges participate in cross-border dialogue as autonomous political actors.5 Scholars have emphasized as well the growing influence of domestic courts in their formal institutional function – that is, in the application of international legal norms in disputes properly before them. As a preliminary matter, however, one must distinguish in this regard between countries that have an independent judiciary and those that do not. Roughly one-third of the countries in the world lack an independent judiciary.6 In those countries, politics (that is, the subjective, situational desires of those in power) may trump law as a routine matter. In order to analyze the relationship between law and politics in domestic courts in any productive sense, therefore, this chapter focuses on countries with an independent judiciary. 2

See, e.g., André Nollkaemper, National Courts and the International Rule of Law (Oxford University Press 2011). 3 See Neal Tate and Torbjom Vallinder (eds), The Global Expansion of Judicial Power (NYU Press 1995). 4 Anne-Marie Slaughter, ‘Judicial Globalization’ (2000) 40 Virginia Journal of International Law 1103, 1112–23. 5 See, e.g. Anne-Marie Slaughter, ‘A Typology of Transjudicial Communication’ in Thomas M. Franck and Gregory H. Fox (eds), International Law Decisions in National Courts (Transnational Publishers 1996) 37; see also Osnat Grady Schwartz, ‘Changing the Rules of the (International) Game: How International Law is Turning National Courts into International Political Actors’ (2015) 24 Washington International Law Journal 99, 101, 129–34. 6 The Polity IV Project is the best source of data for estimating the number of countries with independent judiciaries. See Polity IV Project, ‘Political Regime Characteristics and Transitions, 1800–2014’, accessed 12 September 2016 at www.systemicpeace.org/inscrdata.html. The ‘exconst’ variable ranks countries on a scale from 1 to 7, measuring the degree of external constraints on the executive branch. A score of ‘1’ means that there are no significant constraints on executive power; a score of ‘7’ indicates substantial constraints. In the 2014 data, 109 out of 167 rated countries received a score of ‘5’ or better on the ‘exconst’ variable. This is a reasonably good proxy for determining whether a country has an independent judiciary.

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In countries with an independent judiciary, the clear trend in recent decades has been the ‘judicialization’7 or ‘legalization’8 of international relations. This phenomenon has expanded the field in which claimants may resort to legal argumentation, not political contestation, in international and transnational disputes. Moreover, recent decades have witnessed an extraordinary increase in the ‘density’ of international law. It now covers large swaths of the legal landscape, from commercial law to environmental law, family law and human rights law (among myriad others). The ultimate effect of such ‘judicialization’ is to ‘shift … the balance of power between law and politics [to] favor judicial institutions over representative and accountable institutions’.9 The primary question domestic courts must confront, however, is whether any particular norm has passed from the realm of politics to law. As Kenneth Abbott et al. have explained,10 ‘legalization’ of an international norm involves three essential attributes, each of which is ‘a matter of degree and gradation’: (1) ‘obligation’ – the extent to which the norm is legally binding on a state or other actor; (2) ‘precision’ – the extent to which the norm unambiguously defines the required, authorized or proscribed conduct;11 and (3) ‘delegation’ – the extent to which thirdparty institutions (especially domestic courts, independent agencies and international courts) have authority ‘to implement, interpret, and apply the rules; to resolve disputes; and (possibly) to make further rules’.12 7 See Ran Hirschl, ‘The New Constitution and the Judicialization of Politics Worldwide’ (2006) 75 Fordham Law Review 721, 723–4; Martin Shapiro and Alec Stone Sweet, On Law, Politics and Judicialization (Oxford University Press 2002); Schwartz (n 5) 129–34. 8 See generally Judith L. Goldstein and others, Legalization and World Politics (MIT Press 2001). 9 Russell A. Miller, ‘Lords of Democracy: The Judicialization of ‘Pure Politics’ in the United States and Germany’ (2004) 61 Washington & Lee Law Review 587, 590. 10 See, e.g. Kenneth W. Abbott and others, ‘The Concept of Legalization’ (2000) 54 International Organization 401, 401–4. 11 Franck describes a norm with this attribute as one that is ‘determinate’. Thomas M. Franck, The Power of Legitimacy Among Nations (Oxford University Press 1990) 41–9. Koskenniemi captures the notion with the term ‘concreteness’. Marrti Koskenniemi, ‘The Politics of International Law’ (1990) 1 European Journal of International Law 4, 7–19. 12 Sandholtz and Sweet describe this phenomenon as a continuum founded on the extent to which rules are ‘formal, precise, and authoritative’ and are ‘tied to organizational supports, including enforcement mechanisms’. Wayne Sandholtz and Alec Stone Sweet, ‘Law, Politics, and International Governance’ in

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In broad terms, one may describe the differing attitudes of domestic courts toward international law based on their tendency to adopt either ‘harmonization techniques’ or ‘avoidance techniques’.13 The former term covers a wide variety of practices domestic courts employ to give effect to international norms in their domestic legal systems. The latter term describes a range of contrasting techniques some domestic courts have devised ‘to by{pass otherwise … applicable international legal provisions’.14 The most potent ‘harmonization technique’ is a decision by a domestic court that a particular international norm is binding as formal law in the domestic legal system. But some courts also have given effect to international norms that do not formally qualify as domestic law. In this vein, courts have given effect to unincorporated treaties, applied interpretive presumptions to ensure conformity of domestic statutes with international law, and even relied on international norms in constitutional interpretation. Courts inclined to special ‘friendliness’15 to international law also have found fertile ground for the development of domestic law in existing (and even developing) rules of customary international law. When, in contrast, courts resort to ‘avoidance techniques’ they relegate claims founded in international law to politics or diplomacy.16 For example, some courts have recognized a ‘political question’ doctrine for issues with particularly important or sensitive foreign policy implications.17 A narrow conception of ‘standing’ in the assertion by private parties of rights founded in international law may severely circumscribe the pool of permitted claimants. Some courts also have afforded deference to the executive branch in interpreting international legal norms. Christian Reus-Smit (ed), The Politics of International Law (Cambridge University Press 2004) 239–42. 13 See Preliminary Report: Principles on Engagement of Domestic Courts with International Law (ILA Study Group 2013) 6–9 (employing these terms to describe the variations in the application of international law by domestic courts). 14 ibid 7. 15 The term ‘friendliness to international law’ often is attributed to Antonio Cassese, ‘Modern Constitutions and International Law’ (1985) III Academie de Droit International, Recueil des Cours 331, 343. 16 See Eyal Benvenisti, ‘Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts’ (2008) 102 American Journal of International Law 241, 242. 17 The leading United States Supreme Court case on the subject rejected the notion that all cases that involve foreign affairs implicate the political question doctrine. See Baker v Carr [1962] 369 US 186.

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Additionally, courts in some countries apply the doctrine of ‘non-selfexecuting’ treaties as an avoidance technique. These and related avoidance techniques carry particular significance for the theme of this volume, for they enable domestic courts to weigh political considerations in the decision whether to apply international norms to resolve specific disputes. As a matter of emphasis, our focus here is on judicial techniques for avoiding the application of rights founded in or derived from international law. Thus, as used in this chapter, the term ‘avoidance technique’ does not include doctrines – such as forum non conveniens or lis pendens – that courts invoke to avoid deciding the merits of cross-border disputes where the underlying substantive claim is not founded in international law.18 1.2 The Significance of Subject Matter: Horizontal, Vertical and Transnational Rules The introductory chapter to this volume suggests that the relationship between politics and international law varies across stages of governance and governance systems. It also notes that ‘different systems of governance are demarcated by their subject matter, their scope, or both’.19 Our analysis reveals that the relative influence of law and politics in the attitudes of domestic courts toward international law varies considerably across subject matter. That is, the willingness of national courts to view an international issue as one of law – and thus within their realm of authority notwithstanding the political implications – depends heavily on the subject matter of the legal rule involved. Specifically, judicial behavior varies depending on whether an international legal rule regulates the ‘horizontal’ relations between states, the cross-border ‘transnational’ relations between private actors, or the ‘vertical’ relations between states and private actors. 1.2.1 Horizontal rules Part 2 analyzes the role of domestic courts in applying legal rules that govern relations between and among sovereign states. This is the traditional realm of interstate diplomacy dominated by political considerations and national interest. International law rules governing horizontal relations may be both highly obligatory and highly precise. An arms control treaty with detailed 18 19

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limits on armaments represents a good example. But even when international law has these attributes, Part 2 describes a strong presumption that the sovereign states involved have not delegated adjudicative authority to national courts. The main exception involves rules protecting the jurisdictional immunity of states in domestic courts. 1.2.2 Transnational rules Part 3 then examines the sharply divergent judicial attitude toward ‘transnational’ legal rules. By this term we mean international norms that regulate cross-border legal relations between private actors. As one of us observed,20 disputes on this plane ‘rarely have sufficient political salience to become the subject of interstate diplomacy’.21 The benefits of uniform law for cross-border private transactions nonetheless have led states to adopt wide-ranging international norms governing transnational relationships, including multilateral treaties in commercial law, civil procedure, arbitration, family law and aviation law, among others. In this realm, a legal perspective predominates, and as Part 3 explains, judicial avoidance doctrines play a relatively small role. Instead, for transnational rules the norm in domestic courts is harmonization. And in sharp contrast to horizontal rules, domestic courts recognize, interpret and apply international law here almost irrespective of the political implications. This is true even if the relevant norms are obscure, equitable or highly imprecise. Norms of ‘good faith’ and ‘reasonableness’ in the U.N. Convention on Contracts for the International Sale of Goods represent a good example. 1.2.3 Vertical rules Part 4 takes up the third category of international legal rules – those governing the ‘vertical’ relations between states and private parties. This 20 David Sloss, ‘Domestic Application of Treaties’ in D. Hollis (ed), The Oxford Guide to Treaties (Oxford University Press 2012) 377. 21 This is not to suggest that the adoption of proposed transnational legal rules always is free from controversy. Good faith disagreements, often based on insurmountable divides between different legal systems, arise in this dimension as well. The failed negotiation in the Hague Conference over a convention on jurisdiction and enforcement of foreign judgments provides ample proof of this, as does the long list of private law treaties that have failed to attract sufficient support to enter into force. The point here is that – at least as compared to horizontal or even vertical rules – internationally agreed transnational norms are substantially less likely to touch political nerves, affect the exercise of executive discretion, or otherwise trigger high-stakes international diplomacy on essential sovereign rights, duties, or functions.

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category includes both treaty law and customary international law related to refugees, human rights and international humanitarian law (IHL). When called upon to apply vertical rules, domestic courts oscillate between harmonization and avoidance techniques, depending partly upon whether they perceive the contested issue as legal or political. Rules governing vertical relations between States and private actors often present challenging issues for domestic courts. Disputes in this realm equally may touch on sovereign functions traditionally allocated to political discretion and implicate the traditional judicial function of protecting private rights from governmental intrusion. Vertical rules require, therefore, a particularly careful analysis of the form and nature of state consent, of comparative constitutional structures, of the relative institutional competence of the judicial branch, and of the special need for judicial independence. Questions of legal obligation and precision play an important role. But a key point of divergence is the domestic courts’ own assessment of whether it is appropriate for them to apply international legal rules to protect individual rights against infringement by government actors. Ultimately, as Part 4 explains, the relative influence of law and politics in this realm depends on the extent to which particular domestic courts adopt avoidance techniques (as in horizontal disputes) or harmonization techniques (as in transnational disputes). But it is also on this issue, perhaps more than any other we examine in this chapter, that a comparative law perspective exposes striking differences among national court systems. 1.3 Comparative Law Perspectives Throughout this chapter we analyze the relative influence of law and politics in international law from a comparative perspective. Recent years have witnessed an increasing interest of scholars in the application of international law in domestic legal systems. Detailed analyses now exist for a number of states, especially on treaty law.22 We have participated in

22

See David Sloss (ed), The Role of Domestic Courts in Treaty Enforcement (Cambridge University Press 2009) (‘Treaty Enforcement’); Duncan B. Hollis, Merritt R. Blakeslee, and L. Benjamin Ederington (eds), National Treaty Law and Practice (Martinus Nijhoff 2005); see also The Oxford Guide to Treaties (n 20); Anthony Aust, Modern Treaty Law and Practice (2nd edn, Cambridge University Press 2007).

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some of those projects.23 We provide a brief review of the principal system types here to set a context for the more detailed analysis that follows. Nearly every constitutional system contains rules for the making and ratification of treaties (as the empirical evidence from Verdier and Versteeg in this volume confirms).24 Some – especially more modern ones – contain express provisions on the subject.25 Nearly 50 include references to the domestic legal force of specific treaties, especially on human rights.26 Other constitutional structures, especially those that follow the British parliamentary system, have established conventions on the subject.27 Some constitutions, though substantially fewer, also include express references to customary international law.28 It is common in this context to draw a distinction between so-called ‘dualist’ and ‘monist’ approaches to international law. Theoretical debates aside, we use those terms to describe two broad types of domestic legal systems. The fundamental issue that divides the two is whether international norms have the status of law in the domestic legal system. Treaty law provides the clearest illustration of the distinction. As one of us has observed, ‘[t]he key distinguishing feature of dualism is that no treaties have the formal status of law in the domestic legal system unless the legislature enacts a statute to incorporate the treaty into domestic law’.29 Thus, even if the executive department has expressed consent as a matter of international law, in dualist systems the legislature must ‘incorporate’ the treaty by standard legislation in order for it to have the force of domestic law. Otherwise, the treaty remains ‘unincorporated’ (although, as noted below, some courts have recognized an influence for such treaties as well). This is the approach of almost all British Commonwealth States, as well as a few others.30 23

See Sloss (n 20); David Sloss, ‘Treaty Enforcement in Domestic Courts: A Comparative Analysis’ in ‘Treaty Enforcement’ (n 22) 1–60; Michael P. Van Alstine, ‘The Role of Domestic Courts in Treaty Enforcement: Summary and Conclusions’ in ‘Treaty Enforcement’ (n 22) 555–613. 24 See Pierre-Hugues Verdier and Mila Versteeg, ‘Modes of Domestic Incorporation of International Law’, Chapter 6 in this volume. 25 Sloss (n 20) 373–6; Van Alstine (n 23) 566–9. 26 See Wayne Sandholtz, ‘How Domestic Courts Use International Law’ (2015) 38 Fordham International Law Journal 595, 605. 27 Sloss (n 20) 370–1; Van Alstine (n 23) 569–76; Verdier and Versteeg (n 24) pt II.A. 28 See Van Alstine (n 23) 581. 29 Sloss (n 20) 370. 30 ibid.

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It is harder to generalize about states that follow a monist approach. Nonetheless, the key feature of this type of state is that at least some treaties function as directly applicable domestic law without implementing legislation. Beyond this generalization, the monist states differ among themselves in several respects. Because of the different approaches to legislative consent and implementation, in this chapter we shall refer to these states as ‘hybrid monist’.31 Some hybrid monist states require advance legislative approval for all treaties before the executive may express consent under international law: others require such approval only for certain treaty types. Considerable differences also exist on which treaties require subsequent legislative implementation. It is here that debates over self-executing and non-self-executing treaties are most significant. Hybrid monist states diverge as well on the hierarchical status of treaties, with some even elevating them (in certain contexts) over the domestic constitution.32 Despite the formal distinctions, our analysis reveals few functional differences between dualist and hybrid monist states in the application of international norms. Indeed, as described in Parts 2 to 4, our conclusions about the important role of subject matter hold across the diversity of state systems. Thus, courts in dualist and hybrid monist states alike commonly defer to the political branches on horizontal rules (see Part 2). With transnational rules, in contrast, courts from all system types routinely apply appropriately sanctioned international norms to resolve legal disputes that come before them (see Part 3). With vertical rules, a state’s formal classification as dualist or hybrid monist does not seem to be a decisive factor in explaining the behavior of courts.33 Nonetheless, as Part 4 analyzes in detail, domestic courts diverge substantially in their willingness to defer to political interests in disputes between governments and private parties. And on no subject is this more glaring than in the protection of international human rights. 1.4 Domestic Courts and the Stages of Governance This volume analyzes the relationship between law and politics based on five ‘stages of governance’. On two of these stages, domestic courts are

31 32 33

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frequent and substantial players.34 Interpretation of legal norms is an essential function of an independent judiciary. Domestic courts also play an important role in the implementation of international law by issuing authoritative judgments in litigated disputes. These two subjects occupy much of our attention in this chapter. For the remaining three stages of governance, in contrast, the influence of domestic courts is more limited. From their constitutional station and institutional competence, domestic courts have only a circumscribed role in international law rulemaking. In a formal sense, states make treaties, and courts are not empowered to adjust the substance to advance broader interests. In some systems the common law opens a channel for the recognition of norms of customary international law. As a more general matter, a ‘transjudicial dialogue’ may foster epistemic communities for the recognition of such norms. But here as well, a faithful adherence to the judicial function places constraints on judges making, as opposed to finding, the law. A rare exception may be on the subject of conduct-based immunity of former government officials for acts of torture committed while in office.35 A distinct stage of governance involves decision-making by the subjects of legal rules. Courts are not generally the subjects of international legal norms – beyond the general obligation of a state institution to apply the law created by the political branches. However, some international rules target proceedings in domestic courts themselves. Thus, for example, domestic courts ultimately are the subjects for the rules of customary international law on state immunity, for the very question is whether the court will exercise jurisdiction over a foreign state.36 Transnational treaties on civil procedure matters and the enforcement of foreign arbitral awards fall in the same general category. Though limited, the actions of domestic courts are also significant in legal change. Of their nature, independent courts are sources of ‘rule innovation’,37 a phenomenon equally applicable to international law. Indeed, transnational judicial dialogue may be most pronounced in the development of customary international law. Although formally only a 34

For a broader, systematic analysis of this point see Christopher A. Whytock, ‘Domestic Courts and Global Governance’ (2009) 84 Tulane Law Review 67 (examining ‘transnational judicial governance’). 35 Compare: Yousuf v Samantar [2012] 699 F.3d 763 (4th Cir.) (rejecting a claim of immunity) with Jones v Ministry of the Interior of the Kingdom of Saudi Arabia (2006) UKHL 26 (recognizing immunity). 36 See Part 2 below. 37 Sandholtz and Sweet (n 12) 247–8.

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‘subsidiary means’ for determining the law, decisions of domestic courts contribute to the content of the law through an iterative process of recognition and adjustment over time. Moreover, on some subjects (for example, immunity, court procedure, the act of state doctrine) the actions of domestic courts, as state organs, constitute ‘state practice’ that drives the development and modification of customary international law. Disputes in domestic courts over the meaning and effect of treaties likewise provide a platform for legal change. Fundamental principles of treaty interpretation – good faith, autonomous interpretation, respect for foreign court judgments – support the development of epistemic communities among domestic courts that may lead to progressive changes in agreed meaning over time. Some treaties even expressly or impliedly delegate authority to courts to engage in ‘dynamic’ interpretation to address future developments. In all of this, domestic courts, intentionally or not, may contribute to evolution in the content of international legal norms over time.

2. HORIZONTAL RULES Horizontal rules regulate relationships between sovereign states. When domestic courts confront horizontal disputes, they often view the cases as ‘political’, not ‘legal’, and they apply various avoidance techniques to avoid decisions on the merits. The governing model of enforcement is diplomacy, political contestation and non-judicial sanctions in the parties’ interstate relations. Here, domestic courts commonly employ avoidance doctrines with the consequence of leaving the field free for exercise of discretion by political actors, especially the executive branch.38 In this realm, domestic courts do not play an active role at any of the five ‘stages of governance’, subject to the exception of state immunity, discussed below. An Italian decision in Presidency of the Council of Ministers v Markovic is illustrative.39 In April 1999, NATO forces bombed a radio 38

Cf.: Benvenisti (n 16) 242 (observing that domestic courts may resort to avoidance doctrines ‘to align their findings and judgments with the preferences of their governments and thus to guarantee [the governments] complete latitude in external affairs’). 39 Presidency of the Council of Ministers v Markovic [2002] 85 Rivista di diritto internazionale 799 ILDC 293 (IT 2002) [Markovic]. Throughout this chapter, the abbreviation ‘ILDC’ refers to the Oxford database on International Law in Domestic Courts. The designation ‘ILDC 293’ is an identifier assigned by

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station in Yugoslavia, killing Dejan Markovic and Slobodan Jontic. Surviving family members filed suit in Italy against the Ministry of Defence and others. Plaintiffs alleged violations of international humanitarian law (IHL) rules prohibiting the use of weapons ‘directed against a non-military objective and intentionally intended to harm civilians’.40 Defendants argued that Italian courts lacked jurisdiction. The Supreme Court of Cassation ruled for defendants on jurisdictional grounds, holding ‘that neither the ordinary courts nor any other court can consider the dispute’.41 The court said: ‘The choice of a means of conducting hostilities is an act of Government. These are acts that constitute the manifestation of a political function … The provisions of the [Geneva Conventions] … which govern the conduct of hostilities are … provisions of international law [that] govern relations between States.’42 In sum, the court described the relevant legal rules as horizontal rules that ‘govern relations between states’ and it characterized the underlying conduct as ‘the manifestation of a political function’. These two ideas – that the rule is horizontal and that the function is political – are closely related. The plaintiffs thought they were asking the court to apply a vertical rule of law that protects individual civilians from unlawful use of weapons by state actors. From their perspective, their claim was similar to a claim that government officers violated the European Convention on Human Rights: a type of claim that Italian courts often adjudicate.43 However, from the court’s perspective, the fact that the use of force occurred in the context of an international armed conflict meant that the case was properly viewed as a horizontal dispute between states, not a vertical dispute between state actors and private parties. Thus, Markovic illustrates two important points. First, domestic courts often have discretion in choosing whether to frame a dispute in horizontal or vertical terms. Second, the choice to frame it as a horizontal dispute typically

the editors of that database. Quotations from the case are taken from the English translation available in the Oxford database. 40 Markovic (n 39) para 1. 41 Markovic (n 39) para 5. 42 ibid paras 2–3. 43 See Dorigo and President of the Council of Ministers [2011] (intervening) No. 113/2011 (Corte Costituzionale, Italy) (holding that Italian courts must re-open criminal proceedings in cases where the European Court of Human Rights finds a violation of fair trial rights).

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means that the court views the contested issues as political, not legal, and domestic courts generally avoid the merits of political questions.44 However, domestic courts often enforce horizontal rules on state immunity.45 Customary international law provides that states may not permit their domestic courts to exercise jurisdiction over foreign sovereigns, unless one of several exceptions applies.46 The rules governing state immunity are properly viewed as horizontal rules because they protect one state from the exercise of sovereign (judicial) power by another state. Even so, immunity issues frequently arise in vertical disputes between states and private parties. A recent decision by the Supreme Court of Ghana is illustrative. In May 2006, a federal court in New York issued a judgment in favor of a bond holder, NML Capital, against the Republic of Argentina, the issuer of sovereign bonds.47 Argentina had waived its immunity from jurisdiction. However, NML could not execute the judgment because Argentina did not waive its immunity from attachment. In an attempt to collect the money it was owed, NML undertook a global search for Argentine assets subject to attachment.48 When an Argentine naval vessel docked at a port in Ghana, NML tried to attach the warship to collect on the prior judgment. A lower court granted an attachment order and seized the vessel.49 At this point, the dispute was effectively transformed from a vertical dispute between NML and Argentina to a horizontal dispute between Ghana and Argentina, as evidenced by the fact that Argentina sued Ghana in the International Tribunal for the Law of the Sea (ITLOS). ITLOS held that the attachment order breached an international obligation that Ghana owed to Argentina: the obligation to refrain from 44

See also Varvarin Bridge Case [2006] BGHZ 166, 384 (Federal Supreme Court of Germany), ILDC 887 (DE 2006) (dismissing claim against Germany by victims of NATO bombing in Serbia). 45 When courts apply rules on sovereign immunity, they typically avoid the merits of the underlying dispute. However, sovereign immunity is not an ‘avoidance technique’ as we use the term here, because courts do not typically apply sovereign immunity doctrine to avoid application of international law. 46 See Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) [2012] ICJ 143. 47 NML Capital, Ltd v Republic of Argentina [2006] 2006 WL 1294853 (SDNY). 48 See Republic of Argentina v NML Capital, Ltd [2014] 134 S. Ct. 2250, 2253 (noting that ‘NML has pursued discovery of Argentina’s property’ since 2003). 49 See The Republic v High Court, Commercial Division, Accra [2009] No J5/43/2008 (Supreme Court of Ghana).

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exercising jurisdiction over Argentina in Ghana’s domestic courts.50 The Supreme Court of Ghana remedied the breach by reversing the attachment order.51 Chapter 1 identifies ‘decision-making’ as a stage of governance in which ‘the actors whose behavior is governed by a rule’ make decisions on the basis of that rule.52 State immunity rules are unusual because domestic courts are key actors governed by those rules – in a practical sense, if not a formal sense. The Supreme Court of Ghana effectively implemented the international immunity rule by reversing the attachment order.53 The Ghanaian Court’s decision is similar to the Italian court’s decision in Markovic, in that both courts relied on jurisdictional rules to avoid the merits of the underlying dispute. However, the Ghanaian Court applied the international immunity rule to justify its jurisdictional decision, whereas the Italian court applied a domestic jurisdictional rule to avoid application of the international (IHL) rule. In sum, with the notable exception of rules on sovereign immunity, domestic courts in most countries tend to view horizontal rules as ‘political’, rather than ‘legal’. For that reason, domestic courts tend to invoke a variety of avoidance techniques to avoid judicial application of international rules that govern state-to-state relations.

3. TRANSNATIONAL RULES The governance system for transnational legal rules in domestic courts is strikingly different from that for horizontal rules. By ‘transnational rules’, we mean norms founded in, or derived from, international law that regulate cross-border legal relations between private actors. (Such transnational rules are distinct from domestic legal rules, such as constitutional limits on the territorial jurisdiction of U.S. courts that limit the power of domestic courts to adjudicate transnational disputes.) For such transnational rules, domestic courts play an active role almost irrespective of the salience of political interests. In this respect, the governance 50 See The ‘ARA Libertad’ Case (Argentina v Ghana) (Provisional Measures, Order of 20 November 2012, 15 December 2012) ITLOS Reports. 51 Republic v High Court (n 49). 52 See Chapter 1. 53 The government of Ghana released the ship before the Supreme Court of Ghana issued its ruling, but the Supreme Court decision validated the legality of the government’s action.

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system for transnational rules in domestic courts differs even from ‘vertical’ legal rules with significant effects on private interests. As noted in Part 1, the predominant model of governance for transnational legal rules is ‘judicialization’.54 In this realm, domestic courts commonly assume, often without detailed analysis, that they have adjudicative authority even if the relevant norms may touch on political sensitivities, are highly imprecise or involve substantial discretion. The result is that courts routinely apply, interpret, and (in part) develop transnational norms in the disputes before them. 3.1 The Significance of Multilateral Treaties Historically, customary norms predominated in transnational private relations in areas such as commercial and maritime law. As A. Claire Cutler has exhaustively demonstrated, however, since the nineteenth century domestic statutory and common law have displaced the private customary law of the lex mercatoria.55 The active engagement of domestic courts with transnational norms becomes clearest through their role in applying multilateral treaties. Treaties governing transnational private relations are numerous and practically significant. To choose just a few prominent examples, widely accepted conventions cover enforcement of international arbitral awards (the 1958 New York Convention, with over 150 member states); international carriage by air (the 1999 Montreal Convention, with over 110 member states); the civil aspects of international child abduction (the 1980 Hague Convention, with nearly 100 member states); and contracts for the international sale of goods (the 1980 Vienna Convention (CISG), with over 80 member states). Numerous other treaties cover other aspects of commercial and family law, as well as civil procedure and other private law subjects. The practical significance of these transnational treaties finds expression in the fact that the distinction between dualist and hybrid monist states becomes almost entirely irrelevant in this realm. ‘Scheduling’ is a common means for the incorporation of such treaties in dualist states. Under this practice, the legislature gives a treaty the force of domestic

54 See A. Claire Cutler, Private Power and Global Authority (Cambridge University Press 2003) 2 (citing a trend toward ‘the juridification of political, social, and economic life’). 55 See ibid 141–79.

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law by appending its text to an implementing statute.56 Thus, for example, the U.K.’s Child Abduction and Custody Act of 1985 declares that ‘the provisions of that [Hague] Convention set out in Schedule 1 to this Act shall have the force of law in the United Kingdom’.57 The result is that the treaty itself falls within the adjudicative authority of domestic courts. The result is similar in hybrid monist states. For such states, some treaties function as directly applicable domestic law. But in contrast to vertical treaties, transnational treaties have not triggered debates over ‘self-execution’ (or ‘direct effect’).58 Rather, either the political departments declare in advance that the treaties have direct effect, or domestic courts simply assume, with little analysis, that this is the case. Even in the sometimes-sceptical United States, the issue of self-execution of transnational treaties has barely caused a ripple in judicial analysis.59 Domestic courts rely on such treaties not merely as ‘persuasive authority’ – which ‘attracts adherence as opposed to obliging it’60 – but rather as binding and directly enforceable domestic law. And with the force of law, transnational treaties fall within the adjudicative authority of domestic courts, like norms of a purely domestic origin.61 Thus, in both dualist and hybrid monist states transnational treaties are perhaps the ‘hardest’ of international legal norms in the routine work of domestic courts. 56

See Van Alstine (n 23) 568–9 (summarizing the practice for Australia, Canada, Israel, and the United Kingdom). 57 Child Abduction and Custody Act of 1985 s 1; see also, e.g. Kenya’s International Interests in Aircraft Equipment Act of 2013 s 4 (providing that the Cape Town Convention and its protocol on aircraft equipment ‘shall have the force of law’); Canada’s International Sale of Goods Contracts Convention Act of 1991 s 4 (declaring that the UN Sales Convention has ‘the force of law in Canada’). 58 See Van Alstine (n 23) 599–603. 59 See, e.g. Ozaltin v Ozaltin, 708 F.3d 355, 359–60 (2nd Cir. 2013) (declaring that the Hague Child Abduction Convention is self-executing); Hanwha Corp v Cedar Petrochemicals, Inc, 760 F. Supp. 2d 426, 430 (SDNY 2011) (same for the CISG); Baah v Virgin Atlantic Airways Ltd, 473 F. Supp. 2d 591, 593 (SDNY 2007) (same for the Montreal Air Carriage Convention). See also, generally, David Sloss, ‘United States’ 504 et seq., in Treaty Enforcement (n 22) (comprehensively analyzing the application of treaties by US courts). 60 Sandholtz (n 26) 611–12 (quoting H. Patrick Glenn, ‘Persuasive Authority’ (1987) 32 McGill Law Journal 261, 263). 61 See, e.g. 28 USC s 1331 (providing that federal district courts in the United States ‘shall have original jurisdiction of all civil actions arising under … treaties of the United States’).

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Although often overlooked by public law scholars, treaties governing private relations are among the most common sources for the application of international law in domestic courts. Such treaties have generated thousands of reported opinions (and likely many more unreported ones). Judicial decisions applying the CISG alone number over 10,000.62 At least 1750 domestic court decisions apply the New York Convention.63 The International Child Abduction Database of the Hague Conference lists nearly 1000 domestic court opinions.64 The Montreal Convention and its predecessor, the Warsaw Convention, have generated over 660 decisions in total in just six jurisdictions.65 These formally reported opinions likely only scratch the surface in the routine resolution of disputes by domestic courts in commercial law, civil procedure, family law, aviation law and the many other fields now governed by transnational treaties. 3.2 The Pre-eminence of Law over Politics The primary theme of this volume is that the relative influence of law and politics varies according to the sites in which their relationship unfolds. At the site of domestic court application of transnational legal norms, law predominates over politics in nearly every respect. The realm of transnational private relations is highly ‘legalized’. Thus, the permissible grounds for argumentation by disputants (the ‘argumentation frameworks’)66 are legal (not political) in source, form, and content. Litigants and judges alike revert to ‘the text, purpose, and history of the rules, their interpretation, admissible exceptions, applicability to classes of situations, and particular facts’.67 Likewise, the dominant model of judicial decision-making is ‘legal’.68 Judges cite transnational treaties ‘because they contain relevant law and interpretive guidelines’ that are binding in the domestic legal system. Although of course relevant (as for all judicial decision-making), theories of ‘attitudinal’ judging (that 62

See CISG Database, accessed 12 September 2016 at http://www.cisg. law.pace.edu/cisg/text/digest-cases-toc.html. 63 See http://newyorkconvention.org, accessed 12 September 2016. 64 See http://www.incadat.com/index.cfm?act=text.text&lng=1 accessed 12 September 2016. 65 A search of the WestLaw database revealed 653 cases that have cited the Warsaw or Montreal Conventions in just Australia, Canada, Hong Kong, South Korea, the United Kingdom and the United States. 66 Sandholtz and Sweet (n 12) 245–7. 67 ibid 245–7. 68 See Sandholtz (n 26) 611.

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is, based on political or ideological preferences) or ‘strategic’ judging (that is, to satisfy the interests of other institutional actors such as the executive, the legislature or public opinion)69 do not appear to feature prominently in the judicial application of such treaties.70 The contrast with horizontal, and even many vertical, rules in this respect is striking. The attitude of the U.S. Supreme Court provides a clear example. That court hardly is ‘friendly’ to international law, as its decisions on Article 36 of the Vienna Convention on Consular Relations (a vertical provision) amply demonstrate.71 But the Court has embraced transnational legal norms with enthusiasm. Thus, for example, the Court issued this declaration in a custody dispute governed by the Hague Child Abduction Convention: Custody decisions are often difficult. Judges must strive always to avoid a common tendency to prefer their own society and culture[.] International law serves a high purpose when it underwrites the determination by nations to rely upon their domestic courts to enforce just laws by legitimate and fair proceedings.72

The touchstone nonetheless remains legal, as the Court emphasized in a recent opinion applying the same treaty. In a marked departure from its reliance on procedural default rules in disputes over the Vienna Consular Convention, the Court declared that it was ‘unwilling to apply equitable tolling principles that would, in practice, rewrite the treaty’.73 Domestic courts throughout the world routinely assume that they have adjudicative authority even for transnational norms that only dimly satisfy the other recognized attributes of ‘legalization’ (obligation and precision).74 Many provisions in transnational treaties are highly indefinite or involve substantial discretion. For example, the Hague Child Abduction Convention recognizes an exception if a return order would place a child in an ‘intolerable situation’.75 As a more general matter, as 69

ibid 611 (reviewing models of judicial decision-making). Cf.: Christopher A. Whytock, ‘The Evolving Forum Shopping System’ (2011) 96 Cornell Law Review 481, 525–8 (finding no statistically significant differences in outcomes on forum non conveniens motions in the United States as between judges of different political parties). 71 See, e.g. Sanchez-Llamas v Oregon [2006] 548 US 331; Breard v Greene [1998] 523 US 371 (per curiam). 72 Abbott v Abbott [2010] 560 US 1, 20. 73 Lozano v Montoya Alvarez [2014] 134 S. Ct. 1224, 1235. 74 See text accompanying nn 7–12. 75 See art 13. 70

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the U.K. House of Lords has observed, ‘[i]nternational jurisprudence supports a broad interpretation of the factors that may be relevant in the discretionary exercise’ of returning under that treaty.76 The CISG also repeatedly defines rights or obligations by what is ‘reasonable’ or ‘unreasonable’ under the circumstances.77 And the New York Convention grants exceptions based on an absence of ‘proper notice’ or ‘public policy’.78 Numerous similar examples exist in other transnational treaties. Notwithstanding such highly imprecise norms, domestic courts routinely adopt the ‘legal’ model of judicial decision-making. They interpret and apply the treaties as binding legal norms – even if doing so requires the exercise of substantial judicial discretion. Domestic courts also do so in situations of high political salience. Granted, transnational legal rules rarely touch on political nerves in an appreciable way (compared to horizontal and vertical rules). Disputes involving transnational rules simply are too numerous or mundane for the executive branch to assert its policy preferences on a regular basis. Moreover, the competing interests often cut across the political divide. A buyer or seller in an international sale is equally likely to be a member of one political party as another, so too is a father or mother in an international child custody dispute. As a result, the political branches commonly are content to leave the resolution of the related legal issues to the courts.79 Even transnational disputes, however, sometimes trigger significant international political conflicts. For example, controversies over the alleged failure of some foreign courts to adhere to the Hague Child Abduction Convention recently spawned a special statute in the United States authorizing targeted sanctions by the executive branch.80 Similarly, the U.S. Supreme Court recently highlighted ‘the diplomatic consequences resulting from this Court’s interpretation of “rights of custody”’ under the Convention, ‘including the likely reaction of other contracting states and the impact on the State Department’s ability to reclaim 76

See In re M and Another [2007] UKHL 55. See arts 34, 35(2)(b), 37, 48(1), 60(a), 75, 77, 79(1), 79(4), 85, 86(1), 86(2), 87, 88(2), 88(3). 78 See arts V(1)(b), V(2)(b). 79 See Mark A. Graber, ‘The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary’ (1993) 7 Studies in American Political Development 35 (demonstrating that party moderates across the political divide sometimes invite the judiciary to resolve certain sensitive issues). 80 See The Sean and David Goldman International Child Abduction Prevention and Return Act of 2014 22 USC s 9101 et seq. 77

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children abducted from [the United States]’.81 Nonetheless, the Court proceeded to interpret and apply the Convention. Likewise, one finds little weighing of political sensitivities in the application of transnational legal norms by domestic courts around the world. This is true even for domestic courts in states that do not have an exemplary reputation for judicial independence. Thus, courts in China have issued scores of opinions on the CISG,82 applied aviation treaties (beginning with a landmark opinion by a District Court in Shanghai),83 and enforced arbitral awards under the New York Convention.84 As should be clear from the preceding discussion, judicial avoidance doctrines have played a quite limited role in the realm of transnational legal relations. One finds here almost no mention of political question, non-justiciability or similar doctrines. Likewise, the debate over whether particular treaty provisions are ‘self-executing’ or have ‘direct effect’ simply has not featured prominently in transnational disputes. Most domestic courts do not grant deference to the executive branch in treaty interpretation.85 Although United States’ courts occasionally use the rhetoric of deference in cases involving transnational rules,86 little evidence exists that the executive branch has exercised political influence over judicial decisions.87 To be sure, domestic courts also employ a variety of ‘generic’ doctrines – including forum non conveniens, lis pendens, limits on the adjudicative 81

Abbott v Abbott (n 72) 15. See http://www.cisg.law.pace.edu/cisg/text/casecit.html#china accessed 12 September 2016. 83 See Hong v United Airlines Incorporated (Dist. Ct. of Shanghai, First instance, 26 November 2001) 4 Gazette of Supreme People’s Court of the People’s Republic of China 141, [2000] Min Jing Chu No 1639, ILDC 780 (CN 2001) (applying the Warsaw Convention on international air carriage). 84 See http://www.newyorkconvention.org/court-decisions/decisions-percountry#chinapr accessed 12 September 2016. See also Xue Hanqin and Jin Qian, ‘International Treaties in the Chinese Domestic Legal System’ (2009) 8 Chinese Journal of International Law 299. 85 See Van Alstine (n 23) 592–3. 86 Abbott v Abbott (n 72) 15; El Al Israel Airlines v Tsui Yuan Tseng [1999] 525 US 155, 168. 87 The US executive branch often expresses its opinion on the interpretation of transnational treaties in the form of amicus curiae briefs, and it is not uncommon for the Supreme Court to agree with those expressed opinions. See, e.g. Abbott v Abbott (n 22) 15 (noting that the Court’s interpretation of the Hague Child Abduction Convention was ‘supported and informed by the State Department’s view on the issue’). 82

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jurisdiction of domestic courts, and limits on the extraterritorial application of domestic statutes – that affect where, how, and by what rules ordinary transnational disputes are resolved. Judicial application of such doctrines may have significant effects on substantive outcomes. And as domestic courts increasingly recognize and regularize the application of such generic doctrines they indeed engage in ‘transnational judicial governance’.88 Though important on their own plane, however, these generic judicial doctrines are of a different nature from the ‘transnational legal rules’ we examine here (that is, those founded in, or derived from, international law). Moreover, the available evidence indicates that these generic judicial doctrines have no greater salience in cross-border cases involving the judicial application of international legal norms than they do in cross-border cases involving judicial application of domestic legal norms.89

88

See Whytock (n 34) (employing this term). The clearest evidence comes from the application of forum non conveniens in cases involving private treaty rights (the most prominent of the transnational legal rules we analyze here). Indeed, some US courts have held that such treaty rights prohibit, or at least limit, judicial discretion in the application of, forum non conveniens defenses. See, e.g. Hosaka v United Airlines, Inc, 305 F.3d 989, 997 (9th Cir. 2002) (holding that forum non conveniens cannot be invoked to transfer a case brought under the Warsaw Convention); Milor v British Airways Plc [1996] QB 702, 706 (English Court of Appeals) (same); Cour de Cassation le civ [7 December 2011] Bull. civ. I, No. Q10–30.919 (France) (same for Montreal Convention). Other courts have held that treaty rights have no effect at all on the analysis of forum non conveniens defenses. See, e.g. Kisano Trade & Invest Ltd v Lemster, 737 F.3d 869, 875 (3rd Cir. 2013) (holding that a Friendship, Commerce and Navigation treaty ‘does nothing to disturb’ standard forum non conveniens analysis); Pierre-Louis v Newvac Corp, 584 F.3d 1052, 1058 (11th Cir. 2009) (holding that ‘traditional forum non conveniens analysis’ applies for actions brought under the Montreal Convention). Other courts applying transnational legal rules have given no indication whatsoever that the fact that the underlying substantive rule is rooted in international law affects forum non conveniens analysis. See, e.g. Belcher-Robinson, LLC v Linamar Corp, 99 F. Supp. 2d 1329, 1338–9 (MD Ala. 2010) (regarding the CISG); Genpharm Inc v Pliva-Lachema as, 361 F. Supp. 2d 49, 59–61 (EDNY 2005) (same). The same is true on the consideration of lis pendens claims in cases based on transnational treaty rights. See, e.g. Palm Bay Intern, Inc v Marchesi Di Barolo SPA, 659 F. Supp. 2d 407, 413–414 (EDNY 2009). 89

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3.3 Domestic Court Engagement and the Stages of Governance As noted in Part 1, domestic courts generally do not play an active role in rulemaking or decision-making regarding international legal norms. But for transnational legal rules, domestic courts have noteworthy influence in interpretation, implementation and progressive development over time. The role of domestic courts in the interpretation of transnational legal norms is expansive and significant. The influence of domestic courts has become most pronounced through the process of developing an international consensus on the meaning of treaty provisions. Determining the meaning of treaties leaves considerable discretion for domestic courts in their primary duty ‘to say what the law is’.90 For transnational legal rules, this essential judicial role creates a platform for a process of judicial dialogue across jurisdictions. The foundation for this process is the recognition, including by courts from dualist states,91 that the relevant source of interpretive evidence is the treaty itself, including its drafting history (travaux préparatoires) and the subsequent practice of states. Most courts rely on the interpretive rules of the Vienna Convention on the Law of Treaties.92 With the foundation of uniform source materials and principles, together with a recognized goal of uniform interpretation, the result has been substantial cooperation and collaboration by domestic courts around the world. Of great importance in this cooperation is the widespread reliance on the opinions of courts from other treaty member states.93 Courts from dualist94 and hybrid monist95 traditions alike have emphasized that decisions of other member state courts are ‘entitled to considerable

90

Marbury v Madison [1803] 5 US (1 Cranch) 137, 177. See Povey v Qantas Airways Limited [2005] HCA 33 (2005) (High Court of Australia) (involving a claim by a passenger against an airline); Sidhu v British Airways Plc [1997] AC 430, 443 (House of Lords) (same). 92 See Van Alstine (n 23) 587–91. 93 See Antonios Tzanakopoulos, ‘Judicial Dialogue as a Means of Interpretation’ in H.P. Aust and G. Nolte (eds), Interpretation of International Law by Domestic Courts (Oxford University Press 2016). 94 See, e.g. Smallmon v Transport Sales Ltd [2010] Civ.-2009-409-000363 para 82 (High Court of New Zealand) (applying the CISG); In re M and Another (n 76) (applying the Hague Child Abduction Convention); Povey v Qantas Airways Limited (n 92) (applying the Warsaw Convention). 95 See, e.g. Van Alstine (n 23) 591–2 (noting the practice by courts in the Netherlands, Poland, and Germany). 91

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weight’ (in the words of the U.S. Supreme Court).96 Indeed, for transnational treaties, ‘transnational judicial dialogue’ is not merely theoretical or aspirational. A formal International Hague Network of Judges (composed of domestic judges from 61 jurisdictions) works to secure uniform interpretations of the Hague Child Abduction Convention.97 Official compilations of domestic court interpretations also exist to advance uniformity in the application of other transnational treaties. And, significantly, this substantial judicial cooperation transpires without the formal involvement of the political branches. The influence of domestic courts on decision-making (as noted in Part 1) is limited, even for transnational legal rules. The narrow exception is for treaties that provide rules affecting procedure in the courts themselves. Thus, in a real sense, domestic courts are the subjects of transnational treaties on service of process and taking of evidence abroad,98 as well as the New York Convention on the enforcement of arbitral awards. Nonetheless, for these treaties as well, a legal perspective predominates, and there is little evidence that political considerations play a noteworthy role in decision-making by domestic courts. Domestic courts fulfill an essential function in the implementation of transnational legal norms. In disputes between private parties, domestic courts are the principal state institutions in this stage of governance based on their authority to issue final judgments. But again, the governing model here is ‘judicialization’. In nearly all cases, courts treat norms that regulate transnational private relations as legal in nature and thus subject to the courts’ traditional adjudicative authority in disputes properly before them. Resort to avoidance doctrines as a cover for political sensitivities is neither common nor significant. At the site of the implementation of transnational rules by domestic courts, in short, law nearly always triumphs over politics.

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Abbott v Abbott (n 72) 20 (quoting an earlier opinion). See Judith Kreeger, ‘The International Hague Judicial Network – A Progressing Work’ (2014) 48 Family Law Quarterly 221; Robin Moglove Diamond, ‘The International Hague Network of Judges’ (2013), accessed 12 September 2016 at http://www.iawj.org/International_Hague_Network_of_ Judges-Justice_Diamond.pdf. 98 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (adopted 15 November 1965, entered into force 10 February 1969) 658 UNTS 163; Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (opened for signature 18 March 1970, entered into force 7 October 1972) 23 UST 2555. 97

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Regarding legal change in transnational rules, domestic courts do not have formal authority to modify the law created by the political branches. But transnational treaties, more than any other type, require active engagement by domestic courts to ensure the continued fulfillment of their purpose over time. Of their nature, such treaties regulate the activities of substantially more actors and in dynamic social and technological environments. As a result, over time the domestic courts charged with interpretation and application increasingly confront issues that the drafters did not foresee, or simply chose not to resolve. To ensure the continued vitality and relevance of such treaties, domestic courts must adapt their provisions to new and unexpected environments.99 Indeed, some commercial law treaties expressly empower domestic courts to fill regulatory gaps as they emerge over time, which one of us has described as a delegated authority to engage in ‘dynamic treaty interpretation’.100 The result is that domestic courts have the power (whether formally or practically) to effect legal change in fulfillment of the fundamental purposes of transnational treaties. In sum, in the realm of transnational legal rules a legal perspective predominates. Domestic courts recognize, interpret and apply transnational rules as a routine, almost prosaic, part of the standard judicial function. Judicial avoidance doctrines (political question, nonjusticiability, non-self-execution) likewise have not played a conspicuous, or even noticeable, role. And this is true irrespective of potential political implications, even if the transnational rules at issue are highly imprecise or involve the exercise of substantial judicial discretion.

4. VERTICAL RULES It is difficult to formulate general statements describing application of vertical international rules by domestic courts because national legal systems vary greatly. Even so, to identify some order amidst the chaos, three preliminary observations may be helpful. First, following the theme 99

In situations of doubt, some courts even have turned to a decidedly ‘soft’ form of international norms, the UNIDROIT Principles of International Commercial Contracts. See Michael Bonell, ‘The CISG, European Contract Law and the Development of a World Contract law’ (2008) 56 American Journal of Comparative Law 1, 22–25 (surveying the application of the Principles by domestic courts and arbitral tribunals). 100 See Michael P. Van Alstine, ‘Dynamic Treaty Interpretation’ (1998) 146(3) University of Pennsylvania Law Review 687, 726–91.

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introduced in Part 1, this Part focuses on countries with independent judiciaries. In states whose judicial branch is not truly independent, domestic courts rarely provide remedies to private parties when government actors violate domestic legal norms,101 so they can hardly be expected to provide remedies when government actors violate international norms. Second, one can distinguish between cases where the government invokes an international norm to justify imposing a sanction on a private party (as in domestic application of international criminal law),102 and cases where a private actor seeks a remedy against the government for violation of an international norm. This Part focuses on cases in the latter category. Third, one can distinguish between cases where private litigants file suit in State A against domestic government actors from State A, and cases where litigants file suit in State A against foreign government actors from State B.103 This Part focuses on cases where litigants ask courts to hold domestic officials accountable for violations of international norms. Three distinct bodies of law account for most domestic litigation in this field: international human rights law, international refugee law and international humanitarian law (IHL).104 The following analysis cites examples from all three areas. In states with independent judiciaries, domestic courts frequently provide remedies for private parties whose rights are violated by government actors. If the norm at issue is a domestic legal norm, courts perform their routine functions. But if the norm at issue is an international legal norm, courts apply harmonization techniques in some cases and avoidance techniques in others. When courts apply harmonization techniques, they effectively treat the contested issue as a legal issue. When they apply avoidance techniques, they treat the contested issue as a political issue. Hence, the key question is this: in cases where private actors seek 101

See, e.g. ‘U.S. Dept. of State, Country Reports on Human Rights Practices for 2013, Venezuela’ 14–17 (discussing denial of fair trial rights). 102 See, e.g. Canada v Mugesera [2005] 2 SCR 100, ILDC 180 (Supreme Court of Canada) (ordering deportation of Rwandan national accused of incitement to commit genocide). 103 See, e.g. Fang v Jiang [2007] NZAR 420, ILDC 1226 (High Court of New Zealand) (claim filed in New Zealand against Chinese government officials based upon acts of torture allegedly committed in China). 104 IHL can be divided broadly into three sets of rules: (a) rules governing the means and methods of warfare; (b) rules governing the treatment of detainees in armed conflict; and (c) rules related to administration of occupied territory. Domestic courts tend to view cases involving means and methods of warfare as horizontal cases, whereas they tend to view cases in the other two categories as vertical cases.

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remedies against domestic officials for alleged violations of international legal norms,105 how can we explain decisions by domestic courts to apply harmonization techniques in some cases and avoidance techniques in others? To address this question, we distinguish among three methods for applying international law: (1) ‘silent application’, where courts apply a domestic rule derived from international law without mentioning international sources; (2) ‘indirect application’, where courts apply international law as a guide to interpreting domestic statutory or constitutional provisions; and (3) ‘direct application’, where courts apply international law directly as a rule of decision. Each of these methods involves domestic courts in two prominent stages of governance: the interpretation and implementation of international law. 4.1 Silent Application of International Law When judges apply domestic legal rules, they often do so without acknowledging that those ‘domestic’ rules are derived from international norms. Several countries adopted new Constitutions in the decades after World War II. Many of those new Constitutions include Bill of Rights provisions that were heavily influenced by international human rights instruments.106 Domestic courts often apply those Bill of Rights provisions without mentioning international law. For example, the drafters of the Canadian Charter of Rights and Freedoms, which has constitutional status in Canada, ‘looked to Canada’s international treaty obligations, especially the ICCPR, for inspiration and guidance’.107 Even so, the Supreme Court of Canada rarely looks to international law for guidance in interpreting the Charter.108 When courts apply domestic constitutional provisions modeled on international human rights provisions, the effect may be to harmonize international and domestic norms, because the 105 This formulation encompasses cases where private actors raise international law defenses in actions initiated by the government, as well as cases where private plaintiffs bring civil suits against government actors. 106 See Zachary Elkins, Tom Ginsburg and Beth Simmons, ‘Getting to Rights: Treaty Ratification, Constitutional Convergence, and Human Rights Practice’ (2013) 54 Harvard International Law Journal 61, 63 (showing that the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights ‘have played crucial roles in the spread of formal human rights into national constitutions’). 107 Gib van Ert, Using International Law in Canadian Courts (2nd edn, Irwin Law 2008) 333. 108 See ibid 332–7.

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constitutional drafters internalized the international norm into domestic constitutional law. A similar process occurs when national legislatures incorporate international norms into domestic statutes. For example, the United States enacted the Refugee Act of 1980 to implement its obligations under the 1967 Protocol Relating to the Status of Refugees.109 The U.S. Supreme Court has occasionally referenced international sources expressly in an effort to harmonize its interpretation of the statute with the nation’s international legal obligations.110 In most cases, though, U.S. courts apply the statute without reference to the Protocol or other international legal authorities.111 The courts’ narrow focus on the statute may sometimes create discrepancies between international and domestic rules. However, in many cases, straightforward application of the domestic statute on its own terms promotes harmony with the international norm because Congress incorporated the international norm into the statute.112 It is impossible to measure the harmonizing effects of different methods for domestic application of international law, but incorporation of international law into domestic constitutional and statutory provisions is undoubtedly one of the more effective techniques for entrenching international law in the realm of ‘law’, rather than ‘politics’. 4.2 Indirect Application of International Law 4.2.1 International law in statutory interpretation Indirect application of international law as a guide to statutory interpretation is probably the most widely used overt judicial technique for 109

See INS v Cardoza-Fonseca [1987] 480 US 421, 436–37. More than 100 legislative provisions in the U.S. define legal norms with reference to ‘the law of nations’ or ‘international law’. See Michael P. Van Alstine, ‘Stare Decisis and Foreign Affairs’ (2012) 61 Duke Law Journal 941, 977–8. 110 See INS v Cardoza-Fonseca (n 109). 111 See, e.g. Matter of Kasinga, 21 I&N Dec 357 (BIA 1996) (holding that the practice of female genital mutilation can be the basis for a grant of asylum under the federal statute). The main opinion in Kasinga did not mention the Protocol, but Board Member Rosenberg’s concurring opinion did reference the Protocol. 112 The domestic definition of refugee, codified at 8 USC s 1101(a)(42), is substantially identical to the international definition. See Convention Relating to the Status of Refugees (opened for signature 28 July 1951, entered into force 22 April 1954) 189 UNTS 150 art 1 (defining the term ‘refugee’) and Protocol Relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267 art 1 (modifying that definition).

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harmonizing domestic law with international norms.113 Domestic courts in numerous states apply an interpretive presumption that domestic statutes should be construed in a manner consistent with international norms, including both treaties and customary international law. This interpretive presumption is sometimes called a ‘presumption of conformity’ or a ‘presumption of compatibility’.114 In the United States, it is referred to as the Charming Betsy canon.115 Courts in hybrid monist states – including Germany,116 the Netherlands,117 Poland,118 South Africa119 and the United States120 – apply the presumption frequently in cases involving vertical rules to help ensure that government conduct conforms to the nation’s international legal obligations. Similarly, domestic courts in strict dualist states – including Australia,121 Canada,122 India,123 Israel124 and the United Kingdom125 – apply the presumption in a very similar manner. There do not appear to be any significant differences between hybrid monist states, as a group, and dualist states, as a group, in terms of the manner in which they apply the presumption of conformity. Notably, courts in dualist states frequently apply the presumption to unincorporated treaties in roughly the same way that they apply it to incorporated treaties.126 113

This paragraph and the next borrow heavily from Sloss (n 20). See, e.g. Gib van Ert, ‘Canada’ 166, 188–97 in Treaty Enforcement (n 22); David Kretzmer, ‘Israel’ 273, 287–92 in Treaty Enforcement (n 22). 115 The canon takes its name from an 1804 decision by Chief Justice Marshall. See Murray v Schooner Charming Betsy [1804] 6 US 64, 118. 116 See Andreas L. Paulus, ‘Germany’ 209 in Treaty Enforcement (n 22) (‘German courts are also bound to interpret domestic law, as far as possible, in a way that avoids the breach of international legal obligations’). 117 See André Nollkaemper, ‘The Netherlands’ 326, 348–51 in Treaty Enforcement (n 22). 118 See Lech Garlicki, Malgorzata Masternak-Kubiak and Krzysztof Wójtowicz, ‘Poland’ 370, 404 in Treaty Enforcement (n 22). 119 See John Dugard, ‘South Africa’ 448, 457 in Treaty Enforcement (n 22). 120 See David Sloss, ‘United States’ 504, 526-27 in Treaty Enforcement (n 22). 121 See Donald R. Rothwell, ‘Australia’ 120, 152–6 in Treaty Enforcement (n 22). 122 See van Ert (n 114) 188–97. 123 See Nihal Jayawickrama, ‘India’ 243, 247–51 in Treaty Enforcement (n 22). 124 See Kretzmer (n 114) 287–92. 125 See Anthony Aust, ‘United Kingdom’ 476, 482–83 in Treaty Enforcement (n 22). 126 See Van Alstine (n 23) 593–5, 608–10. 114

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One recurring issue concerns the threshold conditions necessary to trigger application of the presumption. There is broad agreement that courts may apply the presumption in cases where the statute is facially ambiguous. The Supreme Court of Canada has gone further, holding that ‘it is reasonable to make reference to an international agreement at the very outset of the inquiry to determine if there is any ambiguity, even latent, in the domestic legislation’.127 Former Justice Kirby advocated a similar approach in Australia, arguing that courts should refer to international law ‘not only when there exists statutory ambiguity, but also where the construction of a statute would result in an interpretation contrary to international human rights standards’.128 However, the majority of the Australian High Court has rejected this approach, refusing ‘to endorse a wider role for [international law] in statutory interpretation other than where the legislature has clearly envisaged such a role or where there exists a clear ambiguity on the face of the statute’.129 Although the presumption of conformity is a well-established principle of statutory interpretation in most countries with independent judiciaries, application of the principle is inconsistent. In most countries, careful scrutiny of judicial decisions would probably reveal numerous cases where the presumption was potentially applicable, but courts did not apply it.130 In part, judicial failure to apply the presumption in cases where it is potentially relevant may be indicative of litigators’ failure to raise the issue. In part, though, inconsistent application of the presumption also manifests a tendency to apply the presumption in cases where harmonization of domestic with international law yields results that the judge considers normatively appealing, and to avoid applying it in cases where harmonization with international law would yield unattractive results. For vertical rules that regulate government conduct, one might describe the latter situation as a ‘silent’ avoidance technique – the result is that courts refuse to apply the international rule in deference to the government’s interests. In addition to applying a presumption of conformity as a guide to statutory interpretation, courts have also applied international law in 127

National Corn Growers Association v Canada [1990] 2 SCR 1324, 1372–3. 128 See Rothwell (n 121) 153–4. 129 ibid 156. 130 See, e.g. INS v Aguirre-Aguirre [1999] 526 US 415 (where a foreign national sought to avoid deportation by invoking the Refugee Protocol, the Court applied a domestic statute as the controlling rule without mentioning the Charming Betsy canon).

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cases involving judicial review of administrative action. For example, Israel’s Supreme Court routinely applies Geneva Convention IV (GC IV) to review the legality of actions by military authorities in the Occupied Territories.131 The court has justified judicial application of GC IV – even though it has no formal status as law in Israel – by invoking the government’s declared commitment to ‘respect the humanitarian provisions of the Convention’. The Australian High Court’s reasoning in Minister of State for Immigration and Ethnic Affairs v Teoh132 is similar to the Israeli Supreme Court’s approach to GC IV. In Teoh, the government ordered deportation of a Malaysian national who had six young children in Australia. Teoh argued that the deportation order violated the Convention on the Rights of the Child, an unincorporated treaty that has no formal status as law in Australia. The High Court said: [R]atification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. The positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention and treat the best interests of the children as a primary consideration.133

The High Court ruled in favor of Teoh because he had a legitimate expectation that the government would act in accordance with treaty requirements, and the government failed to meet that expectation.134 Courts in other dualist states have generally declined to adopt the ‘legitimate expectations’ doctrine,135 although Canadian courts have achieved similar results by applying the presumption of conformity.136 4.2.2 Human rights and constitutional interpretation Courts in both hybrid monist and dualist states apply international law – especially international human rights law – as an aid to interpreting national constitutions. Countries in Europe and Latin America that are subject to supranational judicial review, respectively, by the European Court of Human Rights and the Inter-American Court of Human Rights, 131 132 133 134 135 136

See Kretzmer (n 114) 309–14. [1995] 128 ALR 353. Rothwell (n 121) 148 (quoting Teoh (n 132) 36). See ibid 146–9. See van Ert (n 114) 173; Aust (n 125) 482 n.37. See van Ert (n 114) 194–5 (discussing Baker v Canada [1999] 2 SCR

817).

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use international law to harmonize domestic constitutional law with the jurisprudence of international human rights tribunals. For example, Peru’s Constitutional Court has said that Peruvian courts must interpret constitutional provisions pertaining to rights and liberties in a manner that is consistent with decisions of the Inter-American Court.137 Indeed, InterAmerican Court decisions holding that national amnesty laws contravene human rights treaty obligations have had significant impact on constitutional developments in Argentina, Chile, Colombia and Peru.138 Germany’s Constitutional Court has said that the German constitutional order is open towards international law, and that constitutional provisions should be interpreted in light of international law to avoid conflicts with Germany’s international obligations.139 Poland’s Constitutional Court invokes the European Convention on Human Rights and decisions of the European Court ‘as additional arguments in establishing the scope and meaning of relevant constitutional provisions’.140 International human rights law has also exerted significant influence on constitutional jurisprudence in some states that are not subject to the jurisdiction of regional human rights tribunals.141 South Africa and India are leading examples.142 The South African Constitution states: ‘When interpreting the Bill of Rights, a court, tribunal, or forum … must consider international law; and may consider foreign law.’143 Given this constitutional mandate, the jurisprudence of South Africa’s Constitutional Court is broadly consistent with the principle ‘that the spirit, purport and objects of the bill of rights … are inextricably linked to international law and the values and approaches of the international community’.144 Similarly, India’s Constitution states: ‘The State shall endeavor to … foster respect for international law and treaty obligations in the dealings 137

President of the Lima Bar Association v Ministry of Defence [2006] Exp No, 0012-2006-PI/TC, ILDC 671 (Constitutional Court, Peru). 138 See Christina Binder, ‘The Prohibition of Amnesties by the InterAmerican Court of Human Rights’ (2011) 12 German Law Journal 1203, 1218–26. 139 German Consular Notification Case, F v T [2006] 2 BvR 2115/01, ILDC 668 (Constitutional Court, Germany 2006). See also Paulus (n 116) 232. 140 Garlicki and others (n 118) 405. 141 This paragraph and the next borrow heavily from Sloss (n 20). 142 See generally Jayawickrama (n 123); Dugard (n 119). 143 Constitution of the Republic of South Africa s 39(1). 144 N. Botha, ‘The Role of International Law in the Development of South African Common Law’ (2001) South Africa Yearbook of International Law 252, 259.

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of organized peoples with one another.’145 Accordingly, decisions by India’s Supreme Court manifest a view ‘that any international convention not inconsistent with the fundamental rights provisions in the Constitution and in harmony with its spirit must be read into those provisions to enlarge the meaning and content thereof’.146 In contrast, the use of international law in constitutional interpretation has been controversial in Australia and the United States. In Australia, former Justice Kirby was a strong advocate for judicial application of international law in constitutional interpretation, but he never persuaded a majority of the High Court to adopt his preferred approach.147 The U.S. Supreme Court has occasionally cited international human rights law to support its interpretation of a contested constitutional provision. In every such case, though, the majority’s reliance on international law provoked a sharp dissent.148 The contrast between India and South Africa, on the one hand, and the United States and Australia, on the other, suggests that countries with newer constitutions tend to embrace the use of international human rights law in constitutional interpretation. However, countries with older constitutional traditions are more hesitant to apply international law in constitutional interpretation, unless they are subject to the jurisdiction of an international human rights tribunal. 4.3 Direct Application of International Law 4.3.1 Direct application of treaties In strict dualist states, direct application of treaties is not possible because treaties are not part of the domestic legal order unless the legislature enacts a statute to incorporate the treaty. Once a treaty has been incorporated, courts apply the statute, not the treaty, at least as a formal matter. Courts in dualist states apply other techniques to harmonize domestic law with international law, but direct application of treaties is not an available option.149 In hybrid monist states, some or all treaties have domestic legal force, even without implementing legislation. However, the fact that a treaty has domestic legal force does not necessarily mean that it is directly 145

Constitution of India s 51. Jayawickrama (n 123) 246. 147 See Rothwell (n 121) 156–8. 148 See, e.g. Graham v Florida [2010] 560 US 48; Roper v Simmons [2005] 543 US 551; Lawrence v Texas [2003] 539 US 558. 149 See Sloss (n 20) 370–3. 146

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applicable by courts.150 In most hybrid monist states, treaties are directly applicable if they are intended to benefit private parties, provided that the particular treaty provision at issue is sufficiently clear and precise that courts are competent to apply it as a rule of decision. For example, in a case where arresting officers did not inform arrestees of their right to consular assistance under Article 36 of the Vienna Convention on Consular Relations, the German Constitutional Court reversed the criminal convictions, holding that Article 36 is directly applicable under Article 59(2) of the German Basic Law.151 Similarly, where a Dutch political party invoked freedom of association principles to justify its policy denying women the right to stand for election, the Netherlands Supreme Court held that Article 7 of the Convention on Elimination of Discrimination Against Women required the government to ensure that all political parties allow women to run for elective offices.152 And in Eichenlaub v Axa France, a French appellate court held that Article 6.1 of the International Covenant on Economic, Social, and Cultural Rights, which protects the right to work, was directly applicable and superseded Article 75 of the local commerce code.153 Similarly, domestic courts in Latin America have often held that treaties involving human rights or humanitarian law are directly applicable.154 Courts in the United States, by contrast, generally do not apply human rights treaties directly because the federal political branches have consistently inserted declarations in the instruments of ratification for human 150 Courts and commentators sometimes use the term ‘self-executing’ as a synonym for ‘directly applicable’, but that terminology can be misleading because the term ‘self-executing’ is also used to mean that the treaty has domestic legal force. To avoid confusion, we distinguish between two different questions: (1) whether a treaty has the force of law in the domestic legal system; and (2) whether the treaty can be applied directly by the courts as a rule of decision. 151 German Consular Notification Case, F v T (n 139). 152 Netherlands, Ministry of the Interior and Kingdom Relations v Stichting Proefprocessenfonds Clara Wichmann [2010] LJN: BK4549, ILDC 1632 (Supreme Court, Netherlands). 153 Appeal judgment [2008] Case No 05-40876, ILDC 2139 (Social Division, France). 154 See, e.g. Aliendre v Mendoza [2006] No 84, ILDC 1522 (Civil Court of Appeal, Paraguay) (appellate court declared property transfer void because it violated Convention on Elimination of Discrimination Against Women, which ranks above domestic law in Paraguay); Shining Path Case, Peru v Reinoso [2006] No 560-03, ILDC 670 (National Criminal Court, Peru) (holding that domestic criminal prosecution did not contravene the principle of legality because defendants had violated Common Article 3 of the Geneva Conventions).

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rights treaties specifying that the treaties are not self-executing.155 The correct interpretation of such ‘NSE declarations’ is contested.156 Regardless, no U.S. court has specifically held that a human rights treaty is self-executing, and the courts have typically refrained from applying the treaties directly as rules of decision.157 Some U.S. courts have held that portions of the 1949 Geneva Conventions are self-executing,158 but judicial authority is divided on this question.159 A judicial decision that a treaty is not directly applicable (or not self-executing) is a common avoidance technique that courts utilize to justify application of domestic law without reference to international law. In contrast, direct application of treaties by domestic courts is an important technique for harmonizing domestic law with international law. It bears emphasis, though, that direct application does not guarantee harmonization because domestic courts sometimes interpret directly applicable treaties in a way that is not entirely consistent with the dominant international interpretation. 4.3.2 Direct application of customary international law Domestic courts in numerous countries apply customary international law directly as a rule of decision in cases where foreign states and/or foreign government officials raise a sovereign immunity defense.160 In the United States, lower federal courts have applied customary international law 155

See David Sloss, ‘The Domestication of International Human Rights: Non-Self-Executing Declarations and Human Rights Treaties’ (1999) 24 Yale Journal of International Law 129, 138–44. 156 See David L. Sloss, The Death of Treaty Supremacy: An Invisible Constitutional Change (Oxford University Press 2016) 306–10 (analyzing different possible interpretations of NSE declarations). 157 See, e.g. Renkel v United States, 456 F.3d 640, 644 (6th Cir. 2006) (holding that the Convention Against Torture is not self-executing because the political branches included an NSE declaration in the US instrument of ratification). But see Freedom to Travel Campaign v Newcomb 82 F.3d 1431 (9th Cir. 1996) (rejecting an ICCPR claim on the merits, without discussing the NSE declaration). 158 See, e.g. United States v Lindh, 212 F. Supp. 2d 541, 553–4 (ED Va. 2002) (holding that portions of the Prisoner of War Convention are selfexecuting); United States v Noriega, 808 F. Supp. 791, 799 (SD Fla. 1992) (same). 159 See, e.g. Al-Bihani v Obama, 619 F.3d 1, 20 (DC Cir. 2010) (stating that ‘the 1949 Geneva Conventions are not self-executing treaties and thus are not domestic US law’). 160 See Jones v United Kingdom App no 34356/06 and 40528/06 (ECtHR, 2014) 116–49 (providing an excellent survey of the law of sovereign immunity in

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directly as a rule of decision in numerous cases under the Alien Tort Statute (ATS) where foreign plaintiffs alleged human rights violations by foreign government officials.161 However, U.S. Supreme Court decisions in 2004 and 2013 imposed significant constraints on plaintiffs who seek to raise similar claims in the future.162 Domestic courts rarely apply customary international law directly as a rule of decision to resolve claims by private plaintiffs against domestic government actors. The most notable line of cases is a set of decisions by the Israeli Supreme Court involving the Occupied Territories.163 In Israel, courts have the authority to apply customary international law directly as a rule of decision where there is no controlling statute.164 For almost 50 years, Israeli military authorities have governed the Occupied Territories by promulgating military orders. Israel’s Supreme Court was initially reluctant to review the legality of such orders, but the Court held in the Beth El case165 that the 1907 Hague Convention (IV) Regarding the Laws and Customs of War on Land is part of customary international law, and is therefore directly applicable by the judiciary in cases involving the Occupied Territories. Since that time, Israel’s Supreme Court has applied customary IHL directly to decide dozens, if not hundreds, of cases arising from the ongoing military occupation.166 4.4 Summary The preceding analysis of domestic courts’ engagement with vertical international rules supports two main conclusions. First, domestic courts in states subject to the jurisdiction of a regional human rights tribunal that has authority to issue legally binding judgments are more likely to view vertical rules as ‘legal’ (and apply harmonization techniques), and less likely to view vertical rules as ‘political’ (and apply avoidance techniques), than their counterparts in states that are not subject to the jurisdiction of any such tribunal. Interestingly, the fact that states are the United States, Canada, New Zealand, Australia, Italy, Greece, Poland, France and Slovenia). 161 See generally Beth Stephens and others, International Human Rights Litigation in U.S. Courts (2nd edn, Irvington-on-Hudson 2008). 162 Kiobel v Royal Dutch Petroleum Co [2013] 133 S. Ct. 1659; Sosa v Alvarez-Machain [2004] 542 US 692. 163 See Kretzmer (n 114) 305–9. 164 See ibid 278–9. 165 Ayub v Minister of Defence [1978] HCJ 606/78, 33 (2) PD 113 (Supreme Court of Israel). 166 See Kretzmer (n 114) 305–25.

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subject to supranational jurisdiction under a regional treaty may make their courts less inclined to view vertical rules in global treaties as political, even when those global treaties do not provide for supranational judicial review. Second, domestic courts in states whose national constitutions were promulgated or substantially amended after adoption of the 1948 Universal Declaration of Human Rights (UDHR) are more likely to apply harmonization techniques (treating vertical rules as ‘legal’), and less likely to apply avoidance techniques (treating vertical rules as ‘political’), than their counterparts in states with older national constitutions. For human rights norms, in particular, the tendency to view such norms as legal, not political, is especially true for states whose post-1948 constitutions incorporate human rights norms embodied in the UDHR and/or the International Covenant on Civil and Political Rights.

5. CONCLUSIONS Chapter 1 in this volume suggests that the relationship between politics and international law varies across stages of governance and governance systems. It notes that ‘different systems of governance are demarcated by their subject matter, their scope, or both’. This chapter has shown that the role of domestic courts in applying international law depends heavily on the subject matter of the international legal rule at issue – in particular, whether the rule is horizontal, transnational or vertical. Domestic courts typically view horizontal rules as ‘political’, not ‘legal’. Accordingly, domestic courts rarely apply horizontal rules. Rules governing the jurisdictional immunities of states are the most notable exception. Domestic courts routinely apply immunity rules because they are seen as legal, despite the fact that they regulate horizontal relationships between states. Patterns of judicial enforcement and nonenforcement of horizontal rules do not differ substantially between dualist states and hybrid monist states. In contrast, domestic courts typically view transnational rules as legal, not political. Accordingly, courts in both dualist states and hybrid monist states routinely apply transnational rules to help resolve cross-border disputes between private parties. Although many transnational rules were part of customary international law in the nineteenth century, most of the key rules have since been codified in treaties. The political branches play an important role in incorporating transnational treaties into the domestic legal order – either by means of legislative incorporation, or by means of legislative approval for treaty ratification (in hybrid monist states). However, once the treaty is incorporated, the political branches are

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largely disengaged, and domestic courts have primary responsibility for treaty implementation. Application of vertical rules by domestic courts straddles the boundary between legal and political. If courts view a particular issue as political, they are likely to employ one of several avoidance techniques, leaving the issue to be resolved by politics. However, if courts view an issue as legal, they are likely to employ one of several harmonization techniques in an effort to harmonize domestic law with the relevant international legal rule. Several factors influence the decision between harmonization and avoidance in any particular case. Here, the distinction between dualist and hybrid monist states has little influence over the choice between harmonization and avoidance, but it does influence the particular type of harmonization or avoidance technique that courts utilize.

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5. Treaty law and national legislative politics Kevin L. Cope1

INTRODUCTION The most underappreciated actors in creating, interpreting, and complying with international law – what I call here international law governance – are the legislatures of national governments. Legislatures are critical to international law governance for two main reasons. First, they are involved in nearly every stage of treaty creation and operation, including their formation, interpretation, implementation, and application. In playing these multiple roles, legislatures meaningfully impact how their states influence and respond to international law. Second, this impact is compounded by legislators’ different preferences concerning international governance issues and state behavior. Despite legislatures’ important role in international law governance, the international law and international relations literatures have given them fairly little attention. International law scholarship has focused its domestic attention almost entirely on courts and executives in foreign relations. And international relations scholarship has traditionally explained international behavior by assuming a unitary state interest. Though liberal approaches now consider the impact of different state actors, even they usually gloss over the substantial variety of legislative influences on state behavior. In this chapter, I argue that international law and international relations scholarship, especially that which concerns treaties and international cooperation, should be paying more attention to legislative rules and politics. I should first caution that the relationships described below probably do not extend beyond genuine democracies. The findings are therefore not generalizable to states whose legislatures are window dressing for autocracy, or which otherwise have little or no influence over 1 For helpful feedback, I thank volume editors Wayne Sandholtz and Christopher A. Whytock, Jason Davis, Mila Versteeg, and participants at the University of New South Wales School of Law Comparative Constitutional Roundtable in December 2015, especially discussants Christopher Michaelsen and Ralph Wilde. I thank Caitlin Eberhardt for valuable research assistance.

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state policy. But considering that three of the five permanent UN Security Council members, all of the current G-7 members, and 16 of the G-20 members are democracies, this caveat does not substantially temper my argument: even if non-democratic-state legislatures had no role in international law – a dubious assumption – national legislatures’ aggregate influence on global governance would still be profound. Section 1 reviews the relevant international relations and international law literatures, focusing on how the recent convergence of disciplines has largely overlooked the role of legislatures. Section 2 analyzes legislatures’ formal influence on treaty law across several systems and gives empirical examples of their influence on international engagement.2 Section 3 then develops a series of conjectures about how legislatures systematically influence international cooperation: each conjecture could prompt a line of research at the intersection of international law and relations.

1. DOMESTIC LAW AND POLITICS IN THE INTERNATIONAL LAW AND INTERNATIONAL RELATIONS LITERATURES Though the substance and methods of international law (IL) and international relations (IR) research have partially converged in recent decades, that convergence has thus far mostly left out national legislatures. Following the model of legal scholarship generally, traditional IL scholarship has concerned itself primarily with interpreting international rules, with the goal of describing what those rules mean or should mean, and with how they apply to hypothetical scenarios. In contrast, the social science of international relations has traditionally asked what phenomena – such as state characteristics, international and domestic institutions, and global structures – predict the international behavior of states and other actors. For most of the post-World War II period, these two disciplines were largely estranged, separated both by their distinct methods, and by the realist view then dominant in IR that world politics comprised a legal anarchy.3 One notable difference between traditional IL and IR scholarship has been their disparate approaches to domestic politics, including national 2

See [n 28] infra. Jeffrey L. Dunoff and Mark A. Pollack, ‘What Can International Relations Learn from International Law?’ (2012) 11 Temple University Legal Studies. 3

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legislatures. For its part, IL scholarship has spent little effort on legislatures. Given its traditional focus on formal rule interpretation, the discipline has mainly confined its interest in domestic systems to how courts interpret and shape international law, while largely cabining the study of legislatures to the related (some would say sub-) field of constitutional foreign relations, especially in the United States.4 In that domain, an enormous body of scholarship considers the descriptive or normative role of the U.S. president, Congress, and the courts in approving treaties, constraining other branches’ power, and otherwise shaping foreign relations. Most of this research aims to analyze the rules that govern these bodies’ place in the domestic constitutional order. With a few notable exceptions, it has not sought to explain how legislative rules and structures shape a state’s international legal interactions.5 On the IR side, political thinkers since before Immanuel Kant have explored the ways that domestic actors explain international behavior. Liberalism has emerged over the last few decades as a distinct theoretical approach in its own right, and as one viable challenger to realism.6 Especially over this period, international relations has increasingly taken account of domestic politics in several ways: it has made domestic ‘veto

4 Anthea Roberts, Is International Law International? One theoretical exception is Harold Koh’s transnational legal process approach, which accepts much of the constructivist paradigm but argues that a ‘sufficiently thick’ explanation of why nations comply with international law must consider the complexities of transnational legal processes. Harold Hongju Koh, ‘Why Do Nations Obey International Law?’ (1997) 106 Yale Law Journal 2599, 2649; Christian Reus-Smit (ed), The Politics of International Law (Cambridge University Press 2004); Beth Simmons, ‘International Law and International Relations’ in Keith E. Whittington, R. Daniel Kelemen and Gregory A. Caldeira (eds), The Oxford Handbook of Law and Politics (Oxford University Press 2008). Those complexities, Koh says, include ‘interaction within the transnational legal process, interpretation of international norms, and domestic internalization of those norms’, by which he implicitly includes legislatures. ibid 2599. 5 E.g., Gregory Shaffer, ‘Parliamentary Oversight of WTO Rule-Making: The Political, Normative, and Practical Contexts’ (2004) 7 Journal of International Economic Law 629; Duncan B. Hollis, ‘A Comparative Approach to Treaty Law and Practice’ in Duncan B. Hollis, Merritt R. Blakeslee and L. Benjamin Ederington (eds), National Treaty Law and Practice: Dedicated to the Memory of Monroe Leigh (Martinus Nijhoff Publishers 2005); Kevin L. Cope, ‘Congress’s International Legal Discourse’ (2015) 113 Michigan Law Review 1115. 6 Andrew Moravcsik, ‘Taking Preferences Seriously: A Liberal Theory of International Politics’ (1997) 51 International Organization 513.

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players’ a centerpiece of many theories of international behavior,7 studied the international signaling effects of domestic bodies,8 and explored the effect of democracy on interstate conflict.9 During this time, liberal perspectives have been applied to explain several types of questions, which Kenneth Schultz divides into three categories: how domestic politics (1) impact the interests of states, affecting how states are allied; (2) affect which states fight wars with which states, and the outcomes thereof (leading to the now infamous ‘democratic peace’ maxim); and (3) facilitate or frustrate cooperation between states.10 Thomas Schelling laid the foundation for much of IR’s domestic politics attention by arguing that constraints on treaty ratification can improve the bargaining position of the state’s representative in negotiating an international agreement.11 Robert Putnam puts these ideas to work by showing how domestic politics can be formally modeled in theories of state-to-state interaction, in his seminal Diplomacy and Domestic Politics: The Logic of Two-Level Games.12 Since then, international relations scholars have increasingly adapted more specialized models to explain how domestic politics shapes international politics.13 Some of that

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Scott L. Kastner and Chad Rector, ‘International Regimes, Domestic Veto-Players, and Capital Controls Policy Stability’ (2003) 47 International Studies Quarterly 1. 8 James Fearon, ‘Domestic Political Audiences and the Escalation of International Disputes’ (1994) 88 American Political Science Review 577. 9 Bruce Russett, Grasping the Democratic Peace: Principles for a PostCold War World (Princeton University Press 1994); Bruce Bueno de Mesquita and others, ‘An Institutional Explanation of the Democratic Peace’ (1999) 93 The American Political Science Review 791; Charles Lipson, Reliable Partners: How Democracies Have Made a Separate Peace (Princeton University Press 2013). 10 Kenneth A. Schultz, ‘Domestic Politics and International Relations’ in Walter Carlsnaes, Thomas Risse and Beth A. Simmons (eds), Handbook of International Relations (SAGE Publications 2013) 479. 11 Thomas C. Schelling, The Strategy of Conflict (Harvard University Press 1960). 12 Robert D. Putnam, ‘Diplomacy and Domestic Politics: The Logic of Two-Level Games’ (1988) 42 International Organization 427. 13 Jongryn Mo, ‘Domestic Institutions and International Bargaining: The Role of Agent Veto in Two-Level Games’ (1995) 89 American Political Science Review 914; Helen V. Milner and B. Peter Rosendorff, ‘Democratic Politics and International Trade Negotiations Elections and Divided Government As Constraints on Trade Liberalization’ (1997) 41 Journal of Conflict Resolution 117.

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research has been tested empirically,14 and much has dealt with trade and issues of political economy. Some of this literature has implicitly or explicitly embraced the notion that legislatures, in particular, can be relevant to international relations.15 Over roughly the same period, European integration has provided fodder for a substantial literature on how politics in the national parliaments of Europe has helped or hindered the European Community’s and EU’s development.16 Thus, IR scholarship has increasingly considered how legislatures act as a potential veto player over international behavior. In fact, in stark contrast to IL, IR has devoted more attention to domestic legislatures than to domestic courts. But with a few exceptions, IR scholarship has not inquired into how variation in rules and practices of legislative participation in treaties impacts state behavior.17 Over the last few decades, the methods and focus of the two disciplines of international law and international relations have partially converged. To date, this integration has consisted mainly of law scholars’ adopting methods from the social sciences, and, to a lesser extent, some political scientists’ looking more closely at the role of legal institutions in world politics.18 Abbott has argued that international relations regime theory ‘offers a long-overdue opportunity to re-integrate IL and IR’ and has explained how social science approaches like game theory could

14 E.g., Milner and Rosendorff (n 12); Edward D. Mansfield, Helen Milner and John Pevehouse, ‘Vetoing Cooperation: The Impact of Veto Players on International Trade Agreements’ (2007) 37 British Journal of Political Science 403. 15 Mo (n 12); Lisa L. Martin, Democratic Commitments: Legislatures and International Cooperation (Princeton University Press 2000); Helen V. Milner and Dustin H. Tingley, ‘The Political Economy of US Foreign Aid: American Legislators and the Domestic Politics of Aid’ (2010) 22 Economics and Politics 200; Yonatan Lupu, ‘Legislative Veto Players and the Effects of International Human Rights Agreements’ (2015) 59 American Journal of Political Science 578. 16 Liesbet Hooghe and Gary Marks, Multi-Level Governance and European Integration (Rowman & Littlefield 2001); Klaus H. Goetz and Jan-Hinrik Meyer-Sahling, ‘The Europeanisation of National Political Systems: Parliaments and Executives’ (2008) 3 Living Reviews in European Governance. 17 E.g., Michael A. Bailey, Judith Goldstein and Barry R. Weingast, ‘The Institutional Roots of American Trade Policy: Politics, Coalitions, and International Trade’ (1997) 49 World Politics 309. 18 As described by Dunoff and Pollack (n 3) and Gregory Shaffer and Tom Ginsburg, ‘The Empirical Turn in International Legal Scholarship’ (2012) 106 American Journal of International Law 1.

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inform international law problems.19 Slaughter further laid out an agenda for IL/IR integration.20 Shaffer and Ginsburg sketched several themes in international legal scholarship’s move toward empirical methods.21 Very little of this convergence has addressed the role of legislatures. In 2000, a leading IR journal, International Organization, issued a special issue titled, ‘Legalization and World Politics’.22 The issue features contributions analyzing how several social phenomena, such as world trade, human rights, monetary policy, and international dispute resolution, are increasingly subject to international legal mechanisms. Two contributions address domestic institutions – Karen Alter on European Union legalization, and Judith Goldstein and Lisa Martin on legal institutions and trade liberalization – but neither squarely analyzes the influence of domestic legislatures. In a recent edited volume on the state of interdisciplinary IL/IR scholarship, among 26 contributions, none meaningfully addresses legislatures.23 Thus, in recent years, scholarship at the intersection of IL and IR has bolstered its attention to domestic politics generally, if not to legislatures in particular. Specifically, IL/IR research has not meaningfully considered how variation in the law and politics of legislatures can impact state international law governance behavior. The IL and IR literatures have therefore left open a significant opportunity for research in this domain. Though legislatures may have not been a focus of IL/IR scholarship, the question remains of whether they should be: what, if anything, might such a research agenda accomplish? The rest of this chapter attempts to answer this question implicitly. It begins by describing and illustrating the formal role that many legislatures play in international law governance, and then proposes several conjectures about how legislatures might specifically affect international law governance.

19 Kenneth W. Abbott, ‘Modern International Relations Theory: A Prospectus for International Lawyers’ (1989) 14 Yale Journal of International Law 335, 338. 20 Anne-Marie Slaughter Burley, ‘International Law and International Relations Theory: A Dual Agenda’ (1993) 87 American Journal of International Law 205. 21 Shaffer and Ginsburg (n 18). 22 Judith Goldstein and others, ‘Introduction: Legalization and World Politics’ (2000) 54 International Organization 385. 23 Dunoff and Pollack (n 3).

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2. LEGISLATURES IN INTERNATIONAL LAW AND GOVERNANCE: FORMAL POWERS AND APPLICATIONS In the majority of systems, constitutions and other domestic law give legislatures prerogative over whether to sanction both treaties the government is negotiating, and existing treaties that the executive is considering joining. Many legislatures can also demand that the government issue reservations to treaties, and they can provide interpretations that can bind domestic courts. Especially in dualist systems (but also to some extent in monist ones), legislatures are largely responsible for deciding how to transform international law into domestic law through a process of interpretation and implementation. Legislatures are also often the key actor in determining how the state adopts many international and domestic behaviors in response to existing international law norms. In this section, I discuss these three ways that legislatures interact with treaties to shape international law governance: creation and change; interpretation and implementation; and application and conformance with international law.24 2.1 Creation and Change Under the constitutional or customary rules of most states, legislatures are central actors in the making and amending of international rules. Legislatures typically cannot unilaterally alter treaty specific provisions agreed to by the executive, most legislatures must approve or reject the agreement wholesale. Rather, their influence on the content of international law comes mainly from two powers: (1) the common constitutional authority to prevent treaties from binding their state by vetoing those to which the executive has agreed; and (2) the ability to demand that an agreement conform to legislative preferences as a condition of approving it. Through treaty reservation and bargaining, national legislatures make decisions that alter states’ international law obligations before the treaty binds that state. 24 These three categories roughly correspond closely to the five sites of interaction between law and politics that Sandholtz and Whytock set forth in chapter 1 of this volume, that is, (1) rulemaking, (2) interpretation, (3) decisionmaking, (4) implementation, and (5) rule change. The three categories also roughly correspond to the four ‘interactions’ discussed by Cope (n 5).

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A recent empirical study found that every monist state and about one-third of dualist states in the sample currently require legislative approval for treaty ratification. Because monist systems make up the majority of the sample, about three-fourths of all systems in total have such a requirement.25 A dataset of constitutional provisions dealing with legislatures’ participation in treaty approval assembled by Oona Hathaway makes similar aggregate findings.26 In essence, the nature and extent of legislative influence vary greatly across states,27 but a strong majority of national legislatures – including those in both democracies and non-democracies28 – have some formal authority to impact the development of treaty law ex ante. This power distinguishes legislatures’ influence on treaties from that of domestic courts, which consists primarily of ex post interpretation.29 Legislatures today rarely have an official role in treaty formation before and during negotiations, though historically, some have. The first U.S. President, George Washington, consulted with the Senate in negotiating his first treaty, an agreement with southern Native Americans. Washington ‘found the process so frustrating and tedious’, that it was the last time that he (or any future president) formally consulted the Senate during a treaty negotiation.30 Yet modern legislators routinely request modifications to proposed treaties as a condition of their ultimate approval. Legislatures can use this power to impact the content of treaties during the treaty negotiation process, often before formal ratification 25

Pierre-Hugues Verdier and Mila Versteeg, ‘International Law in National Legal Systems: An Empirical Investigation’ (2015) 109 American Journal of International Law 514. 26 Oona A. Hathaway, ‘Treaties’ End: The Past, Present, and Future of International Lawmaking in the United States’ (2008) 117 Yale Law Journal 1236. 27 For instance, in Canada, because ‘the making of treaties is a prerogative power’, the legislature ‘has no legal or necessary role in the treaty-making process’ (emphasis added). Yet ‘[c]onsultations on Canada’s most important treaties now take place regularly prior to the Government taking binding action’. Maurice Copithorne, ‘National Treaty Law and Practice: Canada’ (2003) 33 Studies in Transnational Legal Policy. 28 In fact, there is almost no correlation between de jure legislative participation in treaty-making and democracy level. Verdier and Versteeg (n 25). 29 Notably, however, domestic courts in some systems have increasingly received authority to block treaties that are inconsistent with their national constitutions. 30 Kevin C. Kennedy, ‘Conditional Approval of Treaties by the US Senate’ (1996) 19 Loyola LA International & Comparative Law Journal 89, 93.

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deliberations begin.31 Because the support of at least the median legislator is required for ratification (which often means enlisting members outside the executive’s political party or coalition), legislative leaders often engage in behind-the-scenes, inter-branch bargaining with executive treaty negotiators.32 In this way, legislators communicate to executive negotiators what provisions they prefer, which they consider necessary to approval, and which are deal-breakers. This information spurs executive representatives to push for those provisions during the negotiation process. In this way, legislatures exert a less visible and less formal, but no less significant impact on the content of international law. To make these characterizations more concrete, it is useful to summarize the international law-making role of legislatures in a sample of states from different regions and legal traditions. First, many of the major European parliamentary systems have a substantial role in treaty formation: Germany and the United Kingdom are illustrative. The German Basic Law gives the executive the dominant position in foreign affairs, including the power to negotiate and sign many types of treaties without the approval of the Bundestag, the national legislature. Also, the executive cabinet members are members of the Bundestag, so most bills presented to the Bundestag already have the support of the executive.33 However, the Bundestag’s approval is required for ratification for treaties that ‘deal with the political relations of the Federation or relate to matters of federal legislation’, a comparatively small but relatively important subset of all agreements.34 In addition, legislative authorization is a prerequisite to ratification of any treaty that transfers national power to an intergovernmental organization. Despite Germany’s executivedominated foreign relations, the Bundestag can meaningfully impact Germany’s international commitments. For instance, in 2012, the German and Swiss executives signed a tax treaty that would legalize undeclared German assets held by Swiss banks, while allowing Germany to tax those assets. Liberal opposition parties (to Chancellor Angela Merkel’s Christian Democrats), the Greens and Social Democrats, joined forces to defeat the deal in the upper house of the Bundestag, saying it violated tax 31

Stefan Albrecht Riesenfeld, Parliamentary Participation in the Making and Operation of Treaties: A Comparative Study (Aspen Publishers 1994). 32 Cope (n 5). 33 Jochen Abr Frowein and Michael J. Hahn, ‘The Participation of Parliament in the Treaty Process in the Federal Republic of Germany’ (1991) 67 Chicago-Kent Law Review 361, 361. 34 Quoted in Basic Law for the Federal Republic of Germany art 59, para 2 (as cited in ibid 362, 364).

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fairness principles. (In 2013, after parliamentary elections, the sides revisited the possibility of concluding the deal, but with allegedly more equitable modifications preferred by the parliament’s liberals.) In the United Kingdom, a traditionally dualist system, treaties also often need legislative approval. Specifically, until 2010, Parliament approved treaties where: taxation is imposed or where a grant from public funds is necessary to implement the treaty, where the existing domestic law is affected, where important territories are ceded or where new states and dominions are created outside the United Kingdom and territory transferred to them, where a peace treaty interferes with the private rights of the individual and where a multinational or commercial convention requires a change in domestic law in order to implement international commercial practice.35

Reforms enacted in 2010 allowed Parliament an even greater role in treaty-making, giving the House of Commons formal power to block ratification of most treaties. But even when a treaty did not require ratification, ‘the practical influence’ of Parliament was ‘substantial’.36 When the executive was considering entering into a treaty, those running for re-election were ‘anxious to ensure’ that the treaty was ‘palatable to all sections of the electorate’. Advocacy groups contacted Members of Parliament, who would in turn ‘bring pressure to bear upon the [executive] government’.37 Smaller Scandinavian and northern European states such as the Netherlands and Sweden are often associated with their eager embrace of international law norms, and they too make the legislature a central figure in international rulemaking. As home to the International Court of Justice, the International Criminal Court, and several other key international bodies, the Netherlands is sometimes called the ‘world’s home of international law’. It is also often considered the prototypical monist system. The approval of the legislature, the Staten-Generaal, is required for all nearly all treaties.38 Only the second (lower) chamber may modify 35

Sydney Templeman, ‘Treaty-Making and the British Parliament’ (1991) 67 Chicago-Kent Law Review 459, 463. 36 ibid 471. 37 ibid 471. 38 A few narrow classes of treaties do not need approval, mainly short or unimportant ones. Pieter van Duk and Bathiyyih G. Tahzib, ‘Parliamentary Participation in the Treaty-Making Process of the Netherlands’ (1991) 67 Chicago-Kent Law Review 413.

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treaties by adding reservations.39 All treaties have internal effect, though Dutch constitutional law distinguishes between self-executing treaties and non-self-executing treaties: self-executing treaties have direct effect in Dutch courts and create a cause of action, and non-self-executing treaties need parliamentary action for application by Dutch courts, but still bind government officials as a matter of Dutch law. Courts decide which provisions are self-executing and which are not.40 Ratified treaties trump even the Dutch Constitution, though a two-thirds supermajority vote is needed to approve such agreements. Sweden’s Riksdag must approve treaties ‘of major significance’.41 Treaties that typically fall under this category include those involving human rights, defense alliances, changes in criminal law, environmental, and association agreements.42 This means that the various select parliamentary committees are kept abreast of ongoing treaty negotiations. For more important treaties, members of the Riksdag are often consulted in the course of negotiations.43 When the Riksdag objects to the course of ongoing treaty negotiations, regardless of the treaty’s magnitude, it can vote to demand the executive take different positions or even cease negotiations altogether. Depending on the nature of the treaty, the vote may or may not be binding: regardless, a defiant executive can face censure if it declines to comply. As part of European Union integration, member legislatures have ceded some of their international law governance authority to the EU.44 And though the EU Parliament is not a national legislature, it possesses many of the powers over international agreements that legislatures of European states do. Since the Lisbon Treaty took effect, the European

39

ibid. This distinction is different from that in some other systems, in which ‘non-self-executing’ denotes no domestic obligations whatsoever without further legislative action. ibid. 41 Regeringsformen [Instrument of Government] s 10:2 para 3. 42 Iain Cameron, ‘Swedish Parliamentary Participation in the Making and Implementation of Treaties’ (2005) 74 Nordic Journal of International Law 429, 458. 43 ibid 446. 44 See generally Eivind Smith (ed), National Parliaments as Cornerstones of European Integration, vol 11 (Kluwer Academic Publishers 1996); Simon Hix and Klaus H. Goetz, ‘Introduction: European Integration and National Political Systems’ (2000) 23 West European Politics 1. 40

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Parliament ‘has acquired a significant role in the conclusion of international agreements’.45 Because the EU has the legal capacity to enter into treaties on behalf of its members, the EU Parliament’s power to shape the EU’s commitment affects the international legal relationships of all EU states.46 For instance, the Anti-Counterfeiting Trade Agreement (ACTA) is a global framework for enforcing intellectual property rights. It was negotiated by the European Union, Australia, Canada, Japan, Mexico, Morocco, New Zealand, Singapore, South Korea, Switzerland, and the United States. The agreement was opened for signature in 2011, and many state executives signed quickly, despite a growing populist movement against it in Europe and Australia. That popular opposition movement may have made a stronger impression on EU representatives: in July 2012 the EU Parliament voted against ratification by a vote of 478–39, effectively dooming the treaty.47 The U.S. Congress’s role in approving treaties also gives it substantial influence over the substance of those treaties,48 but those rules are far from straightforward: a hodgepodge of alternatives for the legislature to supervise treaty creation and ratification is perhaps unique in the world.49 The majority of international agreements are approved or authorized by a simple majority of both houses of the U.S. Congress, but arms control agreements, other security treaties, and various other types of treaties usually undergo a process, spelled out in the U.S. Constitution (Article II), requiring the consent of two-thirds of the Senate. There is a longstanding debate over what types of agreements require what types of congressional approval, if at all, and the implications of that process for the agreement’s domestic effect.50 Regardless, political considerations 45 European Parliamentary Members’ Research Service, ‘Parliament’s Enhanced Role In International Agreements’ (European Parliamentary Research Service Blog, 22 October 2013), accessed 13 September 2016 at http://epthink tank.eu/2013/10/22/parliaments-enhanced-role-in-international-agreements/. 46 John Grenville and Bernard Wasserstein, The Major International Treaties of the Twentieth Century: A History and Guide with Texts (Routledge 2013). 47 A month before, in June 2012, the Joint Standing Committee on Treaties of the Australian Parliament also recommended rejection, with a Greens member noting, ‘The Greens would welcome ACTA being ruled out completely because the content of this treaty is fatally flawed and the process that brought it about was shamefully and unnecessarily secretive.’ 48 Riesenfeld (n 31). 49 Hathaway (n 26). 50 E.g., Bradford R. Clark, ‘Domesticating Sole Executive Agreements’ (2007) 93 Virginia Law Review 1573; John Yoo, ‘Rational Treaties: Article II,

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and past practice impose significant practical constraints on the president’s ability to enter into treaties without some form of congressional approval.51 As illustrated below, the Senate supermajority procedure remains a de facto normative constraint – and sometimes a fatal one – for a great many of the most important treaties the United States seeks to join. Two-time Chairman of the Senate Foreign Relations Committee, Jesse Helms, saw the Senate’s role in treaty-making thusly: it is our [responsibility] to say to Presidents and Secretaries of State, when they come demanding quick action on ‘urgent’ treaties and legislation, ‘Slow down, let’s think on this a little.’ We hold hearings, we listen to witnesses with differing points of view. Then, sometimes, our job is to work with an administration to improve its proposals. And sometimes our job is to say no.52

The U.S. Congress frequently exercises these formal and informal powers over treaties to block or indefinitely delay ratification. According to one scholar, as of 1987, Congress had vetoed executive-signed agreements at least 130 times, resulting in 108 treaties being permanently blocked.53 Legislatures also commonly condition their approval on the executive’s entering reservations with the treaty partner or international body. For example, a 1996 study found that over the previous 200 years, the U.S. Senate had been involved in giving Article II advice and consent 1286 times, and it had attached some form of condition on ratification 195 times, just over 15 per cent of the treaties it considered.54 An earlier Congressional Research Service study found similar results.55 Congressional-Executive Agreements, and International Bargaining’ (2011) 97 Cornell Law Review 1. 51 John K. Setear, ‘The President’s Rational Choice of a Treaty’s Preratification Pathway: Article II, Congressional-Executive Agreement, or Executive Agreement’ (2002) 31 Journal of Legal Studies 5. 52 Jesse Helms, Empire for Liberty: A Sovereign America and Her Moral Mission (Regnery Publishing 2001) 5. Some have criticized this framework. For example, Hathaway argues that because the congressional-executive agreement process is easier, has greater democratic legitimacy, and produces stronger international legal commitments, the Article II process should be largely abandoned. Hathaway (n 26). 53 Orde Kittrie, ‘Congress Can Rewrite the Iran Deal’ Wall Street Journal (12 August 2015), accessed 13 September 2016 at http://www.wsj.com/articles/ congress-can-rewrite-the-iran-deal-1439419154. 54 Kennedy (n 30) 91. 55 Ellen Clodfelter Collier, US Senate Rejection of Treaties: A Brief Survey of Past Instances (Library of Congress, Congressional Research Service 1979).

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Although it may have overplayed its hand during President Washington’s term, the U.S. Congress continued to exercise meaningful postnegotiation veto and modification power. One of the most notorious and historically significant legislative influences on an international agreement was the U.S. Senate’s attempt to modify – and ultimately, its outright rejection of – the 1918 Treaty of Versailles, which would have authorized the United States’ membership in the League of Nations. After World War I, President Woodrow Wilson championed the League of Nations internationally and domestically, believing it was crucial both to international peace and to the United States’ emerging role as a player in international security. In 1918, the U.S. midterm congressional elections disfavored the president’s party (as they typically do), and the Republicans regained control from President Wilson’s Democrats. Though Republican Senator Henry Cabot Lodge supported joining the League in principle, he attached a number of amendments to the treaty designed mostly to preserve congressional war powers. Senate Democrats aligned with Wilson voted against the amended treaty, and it failed in the first vote. The reintroduced version contained several reservations, including the right of the United States not to defend an attacked League of Nations member.56 If adopted, this provision would have undermined a core purpose of the new organization, collective defense. Wilson again urged Democrats to reject, and the treaty was never reintroduced. Many believe the United States’ omission from the League was an important reason the body ultimately proved largely ineffective and failed to prevent World War II. In U.S. history, a deeply divided Senate in concert with the two-thirds Article II approval rule has defeated treaties with executive support. For instance, Bailey, Goldstein, and Weingast explain how, for most of U.S. history, the rule that trade treaties receive Senate supermajority support forced the president to cater those agreements to the preferences of the 67th percentile of the Senate, which typically meant a protectionistoriented senator.57 Throughout the nineteenth century, this constraint doomed numerous trade treaties. In 1934, the Landmark Reciprocal Trade Agreements Act (RTAA) gave the president powers to adjust tariffs and to conclude bilateral agreements with only a simple majority of both houses. Because future agreements could be tailored to the median 56 John Milton Cooper Jr., Breaking the Heart of the World: Woodrow Wilson and the Fight for the League of Nations (Cambridge University Press 2001). 57 Bailey, Goldstein and Weingast (n 17).

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legislator, the RTAA’s enactment would bring on a new era in U.S. free trade policy.58 At least one recent treaty that presidents from both parties supported met its fate in the Senate, where local politics and domestic concerns effectively doomed its ratification. The UN Convention on the Rights of Persons with Disabilities was concluded in December 2006 and opened for signature in March 2007. Both Republican President George W. Bush and Democratic President Barack Obama supported and signed the treaty.59 But in the Senate, the Convention faced resistance from Republicans, who feared it would unduly intrude on U.S. sovereignty. According to Senator James Inhofe, the Committee on the Rights of Persons with Disabilities – what he called an ‘unelected bureaucratic body’ – ‘would pass recommendations that would be forced upon the United States if we were a [party]’.60 One of the strongest objections came from (disproportionately Republican) homeschooling activists, who feared the convention would be interpreted to prohibit certain homeschooling practices. In December 2012, the Senate voted 61–38 to approve ratification, six votes short of the two-thirds supermajority required under Article II. Thus, the domestic-oriented concerns of a small but vocal minority were not reflected in the executive’s support for the convention, but they may have strongly impacted the expressed preferences of senators. The UN Arms Trade Treaty61 and 2015 nuclear disarmament arrangement 58

ibid. Bush’s father, President George H.W. Bush, had been a strong advocate for the Americans with Disabilities Act of 1990, a U.S. federal statute designed to achieve many of the same objectives as the Disability Convention. 60 ‘Senate Rejects UN Treaty on Disabled’ United Press International (United Nations, 4 December 2012), accessed 13 September 2016 at http://www. upi.com/Top_News/US/2012/12/04/Senate-rejects-UN-treaty-on-disabled/756713 54649093/. 61 The UN Arms Trade Treaty offers another example of domestic-oriented political concerns derailing an international agreement with otherwise overwhelming support among international-oriented actors. The treaty, concluded in 2013, sought to control the import and export of small arms, with the goal of keeping them away from terrorists, militias and other bad actors. The UN General Assembly passed it by a 154–3 vote, with only North Korea, Iran and Syria opposing. When the treaty was being negotiated, and later, after President Obama signed it in 2013, several U.S. interest groups mounted a campaign to defeat its U.S. ratification. They made several sovereignty and personal-security arguments, each related to the treaty’s threat to domestic gun ownership, including that the treaty trumped the U.S. Constitutions and required the United States to ban domestic possession of guns. The dynamic of U.S. politics (with Democrats traditionally far more receptive to gun control than Republicans) 59

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between the so-called ‘P5+1’ (the permanent members of the UN Security Council plus Germany) and Iran62 provide additional examples of the U.S. Congress’s potential to stymie international cooperation (though the latter effort was unsuccessful). The constitutional arrangement of legislative influence over international agreements is not confined to Western democracies. Democracies in South America, South Asia, and Africa have adopted similar

happened to align the president with the internationalist view in this case. But the National Rifle Association, the Heritage Foundation and other organizations’ lobbying did not sway the U.S. executive’s international position, but markedly affected the U.S. Senate, including several key Democrats. In March 2013, the Senate approved by a 53–46 vote a budget bill amendment that purported to prevent the United States from joining the treaty. After the vote to reject ratification, an American UN consultant who helped develop the treaty wrote in a New York Times op-ed, ‘The Arms Trade Treaty is consistent with America’s national security interests, foreign policy goals, business interests and moral traditions, which is why United States negotiators worked so hard to create it. So what’s behind the foreboding whispers? … Some truly cynical domestic politics, it would appear,’ she concluded. Rachel Stohl, ‘Tell the Truth About the Arms Trade Treaty’ The New York Times (11 April 2013), accessed 13 September 2016 at http://www.nytimes.com/2013/04/12/opinion/tell-the-truth-about-the-armstrade-treaty.html. 62 Another example of a legislature’s using informal power to attempt to derail a security/arms agreement involves the 2015 nuclear disarmament arrangement between the so-called ‘P5+1’ (the permanent members of the UN Security Council plus Germany) and Iran. While negotiations were underway during the summer of 2015, a group of Republicans in Congress sent a letter directly to the Iranian leadership, claiming that any executive agreement reached between him and President Obama would not be binding on later U.S. presidents, and implying the agreement would not be worth concluding. (The letter apparently did not have its intended effect: Foreign Minister Mohammad Javad Zarif responded in another letter purporting to instruct the senators on the binding status of treaties under international law.) After a deal was reached in late summer 2015, pundits and the American public stood divided on its merits, with polls showing between 28% and 51% of the public supporting, and between 33% and 57% opposing (depending on how the question was asked). Nahal Toosi, ‘Does the American Public Oppose the Iran Deal?’ Politico (3 August 2015), accessed 13 September 2016 atr http://www.politico.com/story/2015/08/publicpolls-iran-nuclear-deal-support-oppose-120953.html. Some commentators urged the Senate to reject the deal, insisting doing so would force the president to return to negotiations. For a brief period, that outcome seemed plausible. The Senate introduced but ultimately failed to pass a measure designed to block the agreement: the vote was 45 in support of the deal and 53 against it, 7 votes short of the 60 nay votes needed to overcome a Democratic filibuster.

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arrangements. In Brazil, for instance, congressional oversight of treatymaking is modeled on the U.S. Constitution, though the approval of both houses of Congress is the norm. As a result, the president’s treaty power is dependent on Congress’s approval.63 The 1988 Constitution makes it ‘incumbent exclusively on Congress … to resolve conclusively on international acts, agreements or treaties which involve charges or commitments against the national patrimony’.64 Likewise, in Argentina, both chambers of the Congress play a role in treaty making,65 as Congress has the power ‘to approve or reject treaties concluded with other nations’.66 Not surprisingly, the Indian system somewhat resembles that of its former colonizer, Great Britain. ‘[T]reaty-making is not within the exclusive competence of the Executive’, but lies within the ‘legislative competence of the Parliament’, as it is ‘always open to the Parliament to disapprove a treaty entered into by the Executive whereupon the treaty will have to effect whatever’.67 However, this power is seldom used: it is thought that it would be ‘quite embarrassing’ for Parliament to reject a treaty after the executive signed it.68 Formally, the Indian Parliament also has the power to make laws regulating the process for both ‘entering into’ and ‘implementing’ treaties, though it has not yet done so.69 South Africa’s 1996 post-apartheid constitution provides that international agreements do not bind the state until both houses, the National Assembly and the National Council of Provinces, have approved them. Agreements ‘of a technical, administrative or executive nature’ and agreements that ‘do[] not require either ratification or accession’ are

63

Guido F. Soares, ‘The Treaty-Making Process under the 1988 Federal Constitution of Brazil’ (1991) 67 Chicago-Kent Law Review 495. 64 Constitution of the Federative Republic of Brazil, art 49. 65 Jose Maria Ruda, ‘The Role of the Argentine Congress in the TreatyMaking Process’ (1991) 67 Chicago-Kent Law Review 485. 66 Constitution of the Argentine Nation, art 67. 67 Shri P.M. Bakshi, A Consultation Paper on Treaty-Making Power Under Our Constitution (National Commission to Review the Working of the Constitution 2001) para 16. 68 ibid. 69 Quoted in the Constitution of India, art 246 (as cited in K. Thakore, ‘National Treaty Law and Practice India’ in Duncan B. Hollis, Merritt R. Blakeslee and L. Benjamin Ederington (eds), National Treaty Law and Practice: Dedicated to the Memory of Monroe Leigh (Martinus Nijhoff Publishers 2005)).

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exempted from this rule.70 Parliamentary committees can demand reservations, and there is a growing trend of the executive consulting with the parliament during the negotiations over certain categories of treaties.71 In Iran, the legitimacy of parliamentary elections, together with the enormous power wielded by the chief cleric, the Supreme Leader, makes the state more theocratic/autocratic than democratic. Indeed, it often falls near the bottom of state democracy rankings. Yet even in Iran, the parliament, the Majles, has real influence over whether and how the state ratifies treaties.72 In that sense, it largely reflects its French origins but with significant Islamic law features. Although the executive conducts treaty negotiations, the Majles must approve ‘[a]ll international treaties, protocols, contracts, and agreements’.73 This provision has been interpreted to include only formal treaties, with ‘informal treaties’ not subject to the legislative veto. The speaker of parliament may review even executive-negotiated informal treaties, however, and if he determines they violate an existing statute, the Speaker may demand that the executive amend them.74 In addition, a body known as the Guardian Council, half of which is chosen by the Majles, is charged with ensuring that laws passed by parliament violate neither the constitution nor the Islamic state religion:75 it enjoys a veto of the decisions of both bodies. 2.2 Interpretation and Implementation After treaties are concluded, signed, and ratified, national legislatures generally bear responsibility for deciding how to transform the international law into domestic law. This is especially the case in dualist systems, but it is also true in monist ones, in the case of treaties that require additional domestic action. Given that treaty law often acquires

70 Quoted in The Constitution of the Republic of South Africa, art 231(3) (as cited in N.J. Botha, ‘National Treaty Law and Practice: South Africa’ in Duncan B. Hollis, Merritt R. Blakeslee and L. Benjamin Ederington (eds), National Treaty Law and Practice: Dedicated to the Memory of Monroe Leigh (Martinus Nijhoff Publishers 2005)). 71 ibid. 72 Kevin L. Cope and Hooman Movassagh, ‘National Legislatures: The Foundations of Comparative International Law’ in Anthea Roberts et al. (eds), Comparative International Law (Oxford University Press) (forthcoming). 73 Constitution of the Islamic Republic of Iran, art 77. 74 ibid, art 138. 75 ibid, art 4.

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teeth only once it permeates domestic law, this step of interpretation and implementation can determine whether and how international law matters at all. In most democratic states, even those where legislatures take a backseat to executives in forming treaties, legislatures are key players in interpreting international law commitments and determining whether and how to implement them domestically. Sandholtz and Whytock divide international interpretation into three strands: legal obligation, legitimacy, and meaning.76 In interpreting and implementing treaties, legislatures routinely tackle at least the first and last. In deciding whether to enact implementing legislation, legislatures must first determine whether the legal rule applies to conduct by their state. Then, in enacting implementing legislation, legislatures must determine what the legal rule means and ‘translate’ its obligations into domestic law. Though legislatures often receive some guidance from the executive foreign ministry or equivalent, legislators are free to, and often do, wholly or partially disregard that advice. This often means that even for treaties for which legislative consent is not required for ratification, to avoid the risk of default, executives often seek the legislature’s input and approval before joining the treaty. Some version of this phenomenon plays out in the United Kingdom, Canada, India, and Israel, for instance. In each, ‘the executive’s theoretical freedom’ to join a treaty unilaterally ‘is restrained in practice by the need to ensure the state can legally (or politically) implement the treaty’s obligations’.77 The implementation of the Rome Statute of the International Criminal Court (ICC) provides a cross-country comparative illustration of legislatures’ effect on how a single international law norm is practiced in different countries. After a state has ratified the Rome statute, it is obligated to ensure that its legislation conforms to the Statute’s requirements, that is, that Rome Statute crimes are criminalized in domestic law, and that the state has procedures in place for cooperating with the ICC in the extradition of suspects. In implementing the definitions of the Rome Statute’s crimes (as of 2016, war crimes, crimes against humanity, and genocide), legislatures have defined the crimes in their domestic law using several approaches, which can be divided into three categories: 76

Wayne Sandholtz and Christopher A. Whytock, ‘The Politics of International Law’, chapter 1 in this volume. 77 Hollis (n 5).

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(1) using the same definitions as the Rome Statute;78 (2) using broader definitions than the Rome Statute; and (3) using narrower definitions than the Rome Statute/not defining Rome Statute crimes at all. These decisions are often largely a function of domestic politics, and they cause the ostensibly uniform ICC scheme to operate differently in different parts of the world. Several states have adopted definitions narrower than the Rome Statute’s or no definition at all. In those states, there are several risks, including inability to prosecute. Even if the act is a crime in the view of the ICC, the state cannot prosecute if the action does not meet the elements of the domestic definition, or if there is no domestic definition.79 France, for example, did not enact a specific law implementing the Rome Statute, and so in the case of crimes against humanity, it has maintained within its legislation the definition that existed prior to the drafting of the Rome Statute. The definition is more restrictive and does not define extermination, imprisonment, severe deprivation of physical liberty, rape, sexual crimes, or apartheid, as crimes against humanity.80 As a result, France could face the ‘inability to prosecute’ scenario above. Some parties to the Rome Statute, such as Venezuela, Mexico, and Colombia, do not define ICC crimes at all. Venezuela has taken no action to implement the Rome Statute: the legislature has defined only the crimes of torture and forced disappearance of persons.81 In terms of other crimes against humanity, genocide crimes, and war crimes, Venezuela 78

The United Kingdom matches the Rome Statute crimes precisely. The British statute attaches Articles 6, 7, and 8 to the implementing legislation. Julio Bacio Terracino, ‘National Implementation of ICC Crimes Impact on National Jurisdictions and the ICC’ (2007) 5 Journal of International Criminal Justice 421, 423. Australia and South Africa have taken the same approach. The Netherlands and Germany include only Articles 6 and 7 verbatim. Goran Sluiter, ‘Implementation of the ICC Statute in the Dutch Legal Order’ (2004) 2 Journal of International Criminal Justice 158. 79 While the state’s inability to prosecute would still give the ICC jurisdiction over the crime (Article 17), this could lead to an overload of such cases before the ICC if it happened frequently enough. The drafters intended that this provision would give the ICC jurisdiction over crimes in war-torn countries with unstable or collapsed governments, not to admit cases from countries with capable judicial institutions but holes in their legislation. Terracino (n 78). 80 The French definition of genocide also requires that it be carried out as part of a ‘coordinated plan’, which is not an element of the crime in the ICC’s definition. ibid 426–7. 81 Hugo Relva, ‘The Implementation of the Rome Statute in Latin American States’ (2003) 16 Leiden Journal of International Law 331, 364.

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could therefore also face the inability-to-prosecute scenario,82 meaning that the ICC would take jurisdiction over potential defendants in that country, prompting international cooperation (and, perhaps more likely, conflict) over efforts to arrest that defendant and bring him before the ICC. These differences in legislative interpretation beg the question: why did some states interpret/implement the ICC so differently, when all were involved in approving the same treaty? The question is ripe for further research, but one scholar has suggested that one part of the puzzle lies in the political climate of some of the underachieving states: the political will necessary to hold people liable for crimes like genocide, crimes against humanity, and war crimes has ‘rarely existed in the states of [the Latin American] region’.83 Notably, this lack of political will has manifested more in legislative than executive hesitance to embrace the ICC regime. 2.3 Application and Conformance After assisting in making rules, interpreting how they apply in domestic law, and implementing accordingly, legislatures are then largely responsible for much state conduct relative to those international norms. That is, at least some legislatures regularly have the opportunity to determine how international law will shape their respective states’ behavior whenever they consider domestic-oriented legislation. This obligation involves choosing to ensure that its laws conform to the international law obligation, to ignore those obligations, or to flout them outright. When legislative branches have the power to enact legislation that contradicts existing treaty commitments, these measures, if enacted, are often immune from judicial review. As Bakshi notes of the Indian Parliament, ‘Once [treaties] are created, while they bind the State as against the other contracting parties, Parliament may refuse to perform them and so leave the State in default.’84 This power and responsibility continues indefinitely, often for years after the international obligation is undertaken. As I have noted elsewhere regarding U.S. congressional legislation, a non-trivial percentage of legislation, even that which is facially unrelated to international law (though potentially related to foreign relations), concerns a topic creating tension with one or more international law 82 83 84

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norms.85 For example, legislatures can enact a criminal drug or sexslavery trafficking law that might have effect outside national borders, which would implicate the customary international law norms concerning jurisdiction to prescribe public law extraterritorially. Likewise, national legislatures could enact a copyright protection law to protect their own domestic authors and promote innovation. If crafted in certain ways, this could violate international norms on ‘moral rights’ as set forth in the Berne Convention for the Protection of Literary and Artistic Works, to which 169 states were parties in 2015.86 These domestic statutory decisions could be made without the legislature’s awareness that its actions implicate international law. In these types of cases, a legislature is not deliberately or even knowingly engaged in the business of international law governance. Under the Vienna Convention on the Law of Treaties, treaties bind on the international plane. CIL norms also bind states that are not persistent objectors.87 Yet national legislatures might enact laws that violate these norms, if they deprioritize or disregard them in favor of domestic priorities. Because they are typically not compelled by process or logistics to value or even consider the international legal ramifications of enacting the law, legislatures may unwittingly create laws that conflict with international legal norms.88 Thus, a state’s compliance with these norms will depend on the degree to which: the body’s members are attuned to international norms, its professional staff is equipped to research about and alert members to these implications, and disproportionately provincially minded legislators value these international obligations vis-à-vis the domestic ones (which are probably closer to their constituents’ and donors’ hearts). By one count, from 1980 to 2010, the U.S. Congress enacted at least eleven statutes that violated then-existing international law obligations of the United States, including both treaty and customary law.89 The U.S. Congress has also been instrumental in reducing the reach of the ICC to Americans and American contractors. Despite some misgivings, the Clinton administration signed the Rome Statute and initially signaled its openness to work to facilitate the ICC’s development, but the Bush 85

Cope (n 5). Roberta Kwall, The Soul of Creativity: Forging a Moral Rights Law for the United States (Stanford University Press 2010). 87 David A. Colson, ‘How Persistent Must the Persistant Objector Be’ (1986) 61 Washington Law Review 957. 88 Saikrishna Prakash, ‘The Constitutional Status of Customary International Law’ (2006) 30 Harvard Journal of Law and Public Policy 65. 89 Cope (n 5). 86

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administration took a different tack. It purported to ‘unsign’ the Rome Statute, renouncing any obligations under the treaty. Then, through a series of bilateral immunity agreements concluded between the United States and over 100 other states (so-called Article 98 agreements), numerous parties to the Rome Statute have agreed not to hand over ‘current or former Government officials, employees (including contractors), or military personnel or nationals of one Party’ to the ICC without the consent of the United States.90 These agreements were styled as sole-executive agreements and therefore did not require the participation of Congress. However, Congress later bolstered the agreements’ clout by enacting a series of domestic laws which further sought to undermine the ICC’s potential threat to U.S. nationals by restricting aid to states that had ratified the Rome Statute. 2.4 Legislatures versus Other Bodies These illustrations show how legislatures are legally entitled to impact the different stages of international law governance and how they commonly do so, sometimes undermining previously expressed international interests. This breadth of responsibility is unusual, perhaps unique, in the realm of actors responsible for international law governance. Most other international and domestic sites of international law and politics interaction cover just one, occasionally two, of the several governance stages. Domestic courts, for instance, are often called upon to interpret international law, and they are undoubtedly political bodies, thus forming a source for the potential injection of politics into international law.91 They are important sites for application of transnational rules and shaping transnational transactions,92 a fact often underappreciated in the

90 Coalition for the International Criminal Court, ‘Status of US Bilateral Immunity Agreements (BIAs): Factsheet’, accessed 13 September 2016 at http://www.iccnow.org/documents/CICCFS_BIAstatus_current.pdf. 91 Richard A. Posner, How Judges Think (Harvard University Press 2010). 92 Yonatan Lupu, ‘Best Evidence: The Role of Information in Domestic Judicial Enforcement of International Human Rights Agreements’ (2013) 67 International Organization 469; Adam S. Chilton and Christopher A. Whytock, ‘Foreign Sovereign Immunity and Comparative Institutional Competence’ (2015) 163 University of Pennsylvania Law Review 411.

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IR literature. But their influence beyond interpretation is limited: domestic courts have little or no role in creating treaties.93 The international law governance functions of international governmental organizations (IGOs) vary by their mandate, but they, too, typically cover just one stage. Though their actions affect all states subject to the international rule in question, the roles of most such IGOs span fewer of the stages than that of legislatures. Some organizations serve a largely administrative role, receiving reports and complaints. Others, like the core human rights treaty committees, are charged with issuing (technically, non-binding) interpretations of their respective conventions. The UN Security Council is unusual in that its resolutions bind member states, and the Council is therefore one of the few permanent bodies that is effectively empowered to make binding international rules (though those rules must have some basis in the UN Charter). It does not have a formal interpretive role, however, and implementation of its resolutions is left to UN member states. Important judicial IGOs, like the WTO Dispute Settlement Body, the European Court of Justice, the International Criminal Court, the Inter-American Court of Human Rights, and the International Court of Justice, serve mainly interpretive and decision-making functions. For instance, the WTO Dispute Settlement Body engages in interpretation and decision-making: its decisions do not formally bind non-parties, so it does not, strictly speaking, make rules. And implementation is left to parties, so it does not implement international law either. The Dispute Settlement Body also lacks the power to change existing rules, a job reserved to member states through a process of multilateral negotiations. In contrast, as illustrated above, national legislatures are commonly involved at nearly every stage of the international law governance process. National constitutional rules give legislatures a role in deciding whether and how an international rule will emerge, how it will operate in the domestic order, and whether and how the state will comply with its requirements. Thanks to the constitutional rules that create legislatures and the locally oriented political incentives that guide legislators, the politics that unfolds in these venues is different from that in other venues, including domestic courts, international courts, and especially, IGOs and NGOs. The next section proposes three ways in which these effects on international law governance might be further explored. 93 Increasingly, some systems delegate authority to a court to ensure treaties’ conformance with existing law. Verdier and Versteeg (n 25).

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3. THREE CONJECTURES OF DOMESTIC LEGISLATIVE POLITICS IN INTERNATIONAL LAW GOVERNANCE The previous section illustrated how legislatures are often empowered to play a role in international law creation, implementation, and compliance. It showed that their positions sometimes diverge from those of the head of state, and that legislatures can profoundly influence international law governance. To social scientists and others concerned with the determinants of international behavior, however, it may be more interesting to explore the non-legal determinants of legislative impact. The next step in developing this research agenda, then, requires exploring the political factors that predict how this influence will manifest: under what political conditions are legislatures most influential, and what is the nature of this influence? In general, the IL and IR literatures rarely address these questions, though some theoretical approaches have done more work than others. Some treat states as unitary, single-interest actors, thereby ignoring domestic politics completely. On this end of the spectrum lies realism, whose primary international interactions metaphor portrays states as solid, opaque billiard balls. Liberalism, whose key theoretical contribution is its focus on social actors within states, lies on the other end. Institutionalism, constructivism, and other approaches lie somewhere in between. But even in the liberal tradition, there has been very little theorizing about the often-unpredictable politics within legislatures that shapes outcomes. The notion of a single state preference can sometimes be a useful theoretical tool with significant explanatory power. Nonetheless, it is a fiction: a state is an amalgam of interests and preferences, strictly speaking, it does not possess a single preference for any particular policy. Rather, the policy preferences transmitted externally by a state’s diplomats represent some aggregation of the preferences (that is, ‘ideal points’) of numerous individuals, with executive and legislative policymakers’ preferences typically carrying the most weight. In essence, for all issues that international law and diplomacy tackle, there exists within a state a distribution of preferences over the outcome. The varying political procedures in the different organs of government lead to different ways of aggregating domestic preferences. When those aggregation procedures produce different preferences in the executive and legislative bodies, the bodies may clash, creating a showdown over which

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policy preference will ultimately be transmitted externally though the state’s behavior or official position. For example, consider an international agreement that would lower tariffs, and which economists believe will lower consumer prices but expose several large industries to increased competition. A subset of stakeholders has a strong interest in the lower tariffs, and another, probably smaller subset has an even stronger interest in the status quo. Whether chosen by districts or by proportional representation of parties, the legislature roughly reflects the diversity of these views. The executive chooses one of those positions to advocate externally at the negotiating table. How does a typical executive choose this policy? The policy probably represents some amalgam of the executive’s own preference and those of other relevant actors, usually including the veto-equipped legislature,94 but how this aggregation occurs is unclear. The large number of times that executive-supported agreements have failed to receive support in the legislature suggests that the executive fails to closely reflect the aggregated legislative preferences a non-trivial percentage of the time. Legislatures should thus tend to reflect the diversity of the entire citizenry’s policy preferences, which should play out in different, often unpredictable ways based on extra-constitutional factors like legislative customs, intra-body political alliances, and strategic political maneuvering. The political process often leads the branches to prefer different international policies, causing inter-branch clashes, which shape the content of international law and how it binds the state. This analysis gives some insight into why legislative politics might matter to international law governance. Based on the foregoing observations, the rest of the chapter offers three propositions about how legislative law and politics might affect international law governance. 3.1 How Does the Gap between Legislative and Executive Preferences Vary by Agreement Issue Area? The first conjecture is that the degree of difference between the legislative and executive preference distributions might vary systematically from issue to issue. One especially salient characteristic of a treaty is how the agreement would produce and distribute utility among domestic stakeholders, that is, to what extent it would create ‘winners and losers’.

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Issues like security and disarmament, which address general societal interests, are less likely to do so. In contrast, environmental and economic issues have more significant distributional consequences and are more likely to do so. For the former set of homogenizing issues, we should find legislatures less likely to impede the ratification and fulfillment of treaties than for more the latter, more polarizing issues. Put more concretely, at one end of the spectrum, a policy that could subject the country to large-scale armed conflict should produce a relatively narrow distribution of preferences, as society presumably ‘rallies around the flag’. For these issues, the distributional consequences are low, the model of a unitary state interest functions rather well, and the legislature’s role is probably more limited. (Though this effect could be tempered by the recent phenomenon present in the United States and some other countries of wars being fought disproportionately by people of lower socioeconomic status.) At the other end of the spectrum would lie agreements with domestic distributional consequences, allocating benefits to some groups and imposing costs on others. For instance, an agreement might force a majority faction to: cede political power to a minority faction, lower import tariffs in order to attract more competition in agricultural industries (benefiting consumers but hurting some farmers), or restrict activities like coal-burning or fishing. All these should produce a relatively broader distribution of preferences both among interest groups and citizens and in any representative legislature. Though empirical evidence is mostly lacking, the distribution of preferences over most international issues is probably more like the tariff issue than the armed conflict. That is, there is non-trivial variation in preferences among the population. For these issues, then, the unitary state interest model loses much of its explanatory power, and because the legislature represents more diverse interests, its preferences may diverge from those of the executive. The two primary international relations literatures – that is, security and international political economy – reflect this division. Security studies have traditionally been dominated by political realists, along with realism’s notion of unitary state power as the central force in international relations. Security theorists have not generally felt it worthwhile to examine the inner workings of domestic political systems. Given that security issues dominated the field of international relations for much of its history, it is unsurprising that international relations theory has been so influenced by the unitary state model. Political economists, on the

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other hand, have given considerable attention to the interaction between international economic policy and domestic politics.95 The fact remains that some expressed state preferences are those of the head of state (e.g., conduct of war, recognition of foreign governments). Other expressed state preferences reflect an amalgam of different state actors including legislatures, most often when the issue divides citizenry, and when legislature has veto/modification power. Because these two sets of actions express the interests of two different sets of actors with different preferences, treating them as originating from one unitary state actor will lead to incongruence, that is, to a seemingly schizophrenic state. Therefore, research that attempts to gauge state interests on various issues of international cooperation might first ask whether the aggregation mechanisms that generate those interests are executive, legislative, or some combination. 3.2 Might Presidential-System Legislatures be More Influential in International Law Governance? The second conjecture is that the method by which legislative representatives and the executive are selected might also affect the practical relevance of legislatures. At one extreme, in an autocracy the externally expressed state position is certain to coincide with the preference of the executive, making the citizenry and legislature irrelevant. On the other extreme, in a pure democracy, the externally expressed preference would be a simple transmission of the aggregated preferences of the electorate. Of course, in reality nearly every modern system lies somewhere between these two poles. The executive is neither completely independent of popular and legislator preferences nor entirely beholden to them. The method for selecting the executive helps to determine the system’s position along this continuum. In a representative democracy with a strong executive, the state’s aggregated position is likely to lie between the ideal point of the median legislator and the executive, but probably closer to the latter. In a system in which parliament has significant foreign policy authority which it shares with a prime minister, parliamentary majorities comprise members of a party or a coalition of parties that 95

E.g., Ronald Rogowski, ‘Political Cleavages and Changing Exposure to Trade’ (1987) 81 American Political Science Review 1121; Kenneth Scheve, ‘Public Inflation Aversion and the Political Economy of Macroeconomic Policymaking’ (2004) 58 International Organization 1; Pablo M. Pinto and Santiago M. Pinto, ‘The Politics of Investment Partisanship and the Sectoral Allocation of Foreign Direct Investment’ (2008) 20 Economics and Politics 216.

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shares the general priorities of the executive. Therefore, the state’s aggregated position is relatively likely to lie roughly equidistant from the median parliamentarian and the prime minister, but those points are likely to be much closer to one another than they would be in a presidential system. Compared with legislatures of presidential systems, then, parliamentary-style legislatures are likely to exert somewhat less influence on treaty negotiation and approval, both formally and informally.96 Because policy differences between parliament and prime minister are likely to be relatively small, policy differences between the executive and legislative are more likely to be resolved through intra-party or intracoalition bargaining. This is especially true in a system like Germany’s, for example, where cabinet members are members of the parliament. The empirical prediction that flows from this conjecture is that legislatures in parliamentary systems are less likely to impede treaty ratification and fulfillment than are legislatures in presidential systems. 3.3 Might Legislatures be Less Likely than Executives to Support Internationalist Policies? The fact that legislatures can play an important role in international law governance does not imply that they have an internationalist orientation, that is, a penchant for international engagement. In fact, anecdotal evidence suggests the opposite: their selection process and incentive structures should make legislatures less inclined to support the surrender of sovereignty that international cooperation often entails. Indeed, it has been argued that it was popularly elected legislatures’ anticipated provincialism and short-sightedness that made the American founders wary of giving the popularly elected House of Representatives meaningful foreign affairs power.97 As founder John Jay argued in Federalist 64, ‘The power of making treaties is an important one … and it should not be delegated but in such a mode … as will afford the highest security that it will be exercised by men the best qualified for the purpose …’. He warned, then, against committing the treaty power to a ‘popular assembly’, which, because it was ‘composed of members 96

Robert Pahre, ‘Endogenous Domestic Institutions in Two-Level Games and Parliamentary Oversight of the European Union’ (1997) 41 Journal of Conflict Resolution 147; Cameron (n 42). 97 David M. Golove and Daniel J. Hulsebosch, ‘A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition’ (2010) 85 NYU Law Review 932.

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constantly coming and going in quick succession … must necessarily be inadequate to the attainment of those great objects’.98 Alexander Hamilton concurred: ‘Accurate and comprehensive knowledge of foreign politics … a nice and uniform sensibility to national character; decision, secrecy, and despatch, are incompatible with the genius of a body so variable and so numerous’ as the House of Representatives.99 The founders ultimately divided this power between the president, and the smaller – and then-state-legislature-selected – Senate. Such a divergence in internationalist orientation may flow from several phenomena, rooted both in the offices’ respective selection processes, and in the conditioning that different offices provide. First, compared with most other actors who shape international law, legislators are usually more beholden to domestic, frequently local, constituents. It is widely understood that legislative behavior is primarily a function of the desire to obtain re-election,100 and most legislators depend directly on domestic constituents and patrons, not foreign or international actors, to keep their jobs. Under some electoral systems, legislators answer electorally not to the nation as a whole, but to the provincial or local interests of their respective legislative districts, interest groups, or political parties. As Anne-Marie Slaughter has observed, ‘Legislators are most directly tied to territorially defined policies … [and,] [i]n this sense, it could be said that remaining resolutely “national,” or even parochial, is their job.’ Slaughter believes that ‘[e]ven when [legislators] focus on international issues, it is generally through the prism of domestic interests rather than through an independent interest in foreign policy, much less global governance … . To the vast majority of these constituencies, international cooperation usually takes a low priority.’101 Second, we might expect legislatures to be less internationally inclined because, unlike with some other actors engaged in international law governance like judges and IGO members, their jobs typically do not require formal education or professional training related to global affairs. In addition, overseas education or professional experience may not appeal to a candidate’s would-be constituency. In fact, in some political 98

James Madison, John Jay and Michael A. Genovese, The Federalist Papers: Alexander Hamilton, James Madison and John Jay (Palgrave Macmillan 2009) 64. 99 ibid 75. 100 Anthony Downs, ‘An Economic Theory of Political Action in a Democracy’ (1957) 65 The Journal of Political Economy 135. 101 Anne-Marie Slaughter, A New World Order (Princeton University Press 2004) 105.

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environments, too much education or political experience – especially overseas – may be a political liability.102 In contrast, though executives are also elected by a domestic electorate, that electorate likely puts more value on international experience (for example, as a military leader, diplomat, or foreign relations legislative committee chair) than the electorates that select legislators. If so, officials with some sort of international experience, and, perhaps a more internationalist orientation, would be more likely both to seek executive office and to be elected. Third, and finally, legislators may be less likely than domestic executive officials, IGO members, international NGO members, and even national judges to engage with regional or global professional networks. To illustrate, compare the closest case, domestic appellate judges, who, according to Anne-Marie Slaughter, have created a ‘global community of courts’.103 As former ICJ President Rosalyn Higgins argued, national courts are increasingly engaged with international law because they want to ‘become part of the international mainstream’.104 Their decisions therefore reflect an emerging international consensus of a global network of judges, which has formed as judges have embraced a transnational judicial dialogue through conferences, foreign legal training, and internet-based correspondence,105 some of which concerns how to address transnational problems. Broadly speaking, there has been no equivalent phenomenon for national legislators. Granted, advances in communication technology and globalization generally have recently allowed legislators (like corporate officials and other private sector actors) to correspond with their counterparts across national borders. But, with the notable exception of many European legislatures, their level of engagement generally lags behind that of most of their counterparts in other bodies.106 102 Michael Hill, ‘Arrogant Posh Boys? The Social Composition of the Parliamentary Conservative Party and the Effect of Cameron’s ‘A’ List’ (2013) 84 The Political Quarterly 80. 103 Anne-Marie Slaughter, ‘A Global Community of Courts’ (2003) 44 Harvard International Law Journal 191; see also Christopher McCrudden, ‘Common Law of Human Rights?: Transnational Judicial Conversations on Constitutional Rights’ (2000) 20 Oxford Journal of Legal Studies 499. 104 Eyal Benvenisti and George W. Downs, ‘National Courts, Domestic Democracy, and the Evolution of International Law: A Rejoinder to Nikolaos Lavranos, Jacob Katz Cogan and Tom Ginsburg’ (2009) 20 European Journal of International Law 1027. 105 Slaughter (n 101). 106 ibid.

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Even more than judges, executives are prone to adopting relatively internationalist orientations.107 They too routinely engage with foreign officials and IGOs. And they are nearly always designated the exclusive representative of the state in foreign matters. The U.S. Supreme Court, for instance, once called the president the ‘sole organ of the Nation in its external relations’.108 And as Bailey and others observed about the 1934 Reciprocal Trade Agreements Act, ‘While presidents shared the partisan [protectionist] inclinations on trade, their national constituencies and their more direct concern with international diplomacy made them less protectionist than the median member of their parties.’109 Thus, suppose that all international agreement policy positions across a variety of issues were placed on a scale based on their degree of internationalism, with substantial engagement and cession of sovereignty on the left end, and isolationism and complete retention of sovereignty on the right end. On average, we would expect the legislature to lie to the right of the executive. That means that we might generally expect legislatures to show less support for engagement and submission to international norms than the executive. This in turn suggests that a rational executive who takes legislative preferences into account at the international negotiating table would move to the right of her own ideal point on the continuum when the legislature’s blessing is needed. She would advocate externally for policies that result in less international cooperation, engagement, and legalization than if the legislature were powerless to affect those policies.

4. CONCLUSION I have shown in this chapter how legislatures wield both legal and political influence over international law governance, including the creation, interpretation, and application stages of governance. The primary challenge for future IL scholarship is to acknowledge that some of the most important legal interpretations and applications occur not in courts, and not through traditional doctrinal legal analysis, but through the political processes in national legislatures. Thus, how international law operates de facto in national governments is commonly a result of 107

Cope (n 5). United States v Curtiss-Wright Export Corp [1936] 299 US 304, 319. This sweeping characterization of executive power has not received much support in later cases, though the holding has never been formally overturned. 109 Bailey, Goldstein and Weingast (n 17). 108

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these non-legal, political processes. This is especially true in systems where legislative interpretations of international law trump judicial ones, a common arrangement. In those systems, international law is effectively what the legislature, not the courts, says it is, and the state often responds to international rules as the legislature determines, not just how the courts determine. Studies that purport to gauge how international law affects a domestic legal system should acknowledge that statutory interpretations often form a foundation for subsequent judicial and executive interpretations. They should therefore consider more closely the legal and political determinants of that original domestic interpretation. Likewise, the question of how legislatures use existing international law in their domestic lawmaking has not yet been considered systematically. IR scholarship, meanwhile, might benefit from taking more seriously the notion that a state’s externally expressed preference often depends on what subset of the state governance system is speaking for the state, and that that subset can change based on subject matter (executive agreement, military action, treaty, customary law formation), and on domestic political winds. As a result, a single-state-interest model may be less useful when that preference is so dynamic. An opportunity for IR cooperation scholarship, then, is to selectively increase its skepticism about the unitary state model. This is most appropriate when building a model of state behavior: (1) with a subject matter that produces a high variance of preferences within a citizenry (which tends to arise when an agreement creates an uneven distribution of utility); or (2) in which the national legislature is legally and politically positioned to meaningfully impact the state’s externally expressed preferences. As I have attempted to show, one or both of these conditions are present in a large fraction of international-cooperation scenarios.

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6. Modes of domestic incorporation of international law Pierre-Hugues Verdier and Mila Versteeg

1. INTRODUCTION The effectiveness of international law often rests on its domestic implementation. Recent scholarship in political science has recognized this by drawing attention to the role of domestic political and legal institutions in implementing human rights treaties and other international law obligations.1 Yet, relatively little attention has been given to the formal domestic legal framework that governs the relationship between international law and domestic law. These rules, which govern matters such as the treaty-making process, how treaties and customary international law are received and interpreted, and their status vis-à-vis other sources of domestic law such as ordinary legislation and the constitution, differ substantially across countries and over time. In this chapter, we argue that, by drawing on the extensive legal literature on these formal legal rules, it is possible to more accurately take them into account in research on the politics of international law. Our first goal is to describe the constitutional and public law rules that regulate states’ relationship with international law and how they vary across countries. We organize our discussion in Part II within the analytical framework proposed by Sandholtz and Whytock in their introduction to this volume, by considering how the rules we describe may affect each stage of governance and how their impact may differ across governance systems. We argue that these rules play a central role in allocating authority over international rulemaking and normative 1

Beth A. Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (Cambridge University Press 2009); Emilia Justyna Powell and Jeffrey K. Staton, ‘Domestic Judicial Institutions and Human Rights Treaty Violation’ (2009) 53 International Studies Quarterly 149; Yonatan Lupu, ‘Best Evidence: The Role of Information in Domestic Judicial Enforcement of International Human Rights Agreements’ (2013) 67 International Organization 469; Yonatan Lupu, ‘Legislative Veto Players and the Effects of International Human Rights Agreements’ (2015) 59 American Journal of Political Science 578.

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change, as well as interpretive, decision-making and implementation authority, among domestic political actors. As a result, the rules shape the state’s engagement with international law at each stage, and they can affect outcomes such as a state’s ability and willingness to commit to international legal obligations and to comply with these commitments. More specifically, we find that while domestic rules generally give the national executive the leading role in negotiating and concluding treaties, this power is increasingly constrained by legislative approval requirements, constitutional review of treaties, and other procedures that allocate authority – and sometimes veto power – to legislatures, courts and other domestic actors. While this may complicate treaty-making, it also potentially allows a broader range of domestic political actors to shape substantive international law. We also examine the rules governing the reception of international law, particularly those that allocate to domestic courts the authority to enforce the state’s treaty commitments. In some countries, dualism and other legal doctrines significantly limit the authority of courts to compel the government or private actors to comply with treaties. In others, a potent combination of direct application and hierarchical superiority of treaties over domestic law effectively empowers courts to enforce international law through quasi-constitutional judicial review. Our discussion incorporates empirical insights from an original dataset we created, which captures in detail the various domestic rules that govern the creation, implementation and interpretation of international law. The dataset includes over 50 different variables that capture numerous aspects of these rules and covers the period from 1815 to 2013. It is currently available for 101 countries, and the coding of further countries is underway. The dataset is based on the coding of a variety of national legal documents, including constitutions, legislation and judicial decisions. For each country, we commissioned a memorandum that provides a narrative answer to each of a series of pre-established questions and then coded these memorandums. The dataset is described in more detail in our earlier work.2 In Part III, we conclude this chapter by contrasting our data with existing indicators that have been used by political scientists to capture the relationship between international law and domestic legal systems. More specifically, we examine existing empirical measures that capture: 2

Pierre-Hugues Verdier and Mila Versteeg, ‘International Law in National Legal Systems: An Empirical Investigation’ (2015) 109 American Journal of International Law 514.

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(i) broad legal traditions, such as the civil law or common law; (ii) explicit constitutional provisions on international law; and (iii) binary classifications of national legal systems as either ‘monist’ or ‘dualist’. These measures constitute important first steps towards mapping the interface between domestic and international law, and in some circumstances they may serve as appropriate proxies. However, we show that our dataset offers more fine-grained and precise information on international law’s place in domestic legal orders as well as on the allocation of powers between the different domestic political actors involved in the making and implementation of international law. In particular, unlike these measures, our dataset captures numerous nuances in the treatment of international law that are not systematically reflected in constitutions, correlated with legal traditions, or associated with a binary monist-dualist distinction. It also captures significant variation over time that is not reflected by these proxies. Thus, it is our hope that our dataset will prove useful to researchers in understanding the relationship between law and politics in the domestic incorporation of international law.

2. DOMESTIC LEGAL SYSTEMS AND THE POLITICS OF INTERNATIONAL LAW The traditional image of international law is of a body of law that governs relations among states, and in which the remedies for breaches must be found at the international level through recourse to international tribunals or self-help remedies. International lawyers, however, have long recognized that national institutions, especially courts, play a central role in implementing international law obligations. This role has become more important as international law has expanded to cover policy areas traditionally reserved to domestic institutions and to create rights and obligations that operate directly on individuals, corporations and other subnational actors. These changes have also expanded the role of national actors other than courts, including the executive, administrative agencies and legal advisers. All these domestic actors potentially play an important role in interpreting and applying international law. The process by which international law is deployed by domestic legal actors is structured by a set of public law rules, generally well-developed in each national legal system, that govern how various forms of international law are received, how they interact with other sources of domestic law, and what institutions are responsible for implementing them. The modes of domestic incorporation of international law cut across multiple stages of the governance process and across governance

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systems. While most studies focus on the process by which exogenouslygiven international law rules are made effective domestically – thus on the ‘interpretation’, ‘decision-making’ and ‘implementation’ stages – the legal framework for this translation is closely tied to the rules that govern the state’s participation in rulemaking and normative change. Thus, in this section, we discuss national rules governing both international rulemaking and the reception of international law, how these rules vary among states, and the consequences they may have for the interplay of international law and politics. 2.1 Rulemaking and Normative Change In almost all countries, an elaborate body of public law – often codified in the constitution and other organic laws3 that are hierarchically superior to ordinary laws but inferior to the constitution – governs the process by which the state may conclude international treaties. Typically, the organ that exercises executive power – the President in presidential systems, the government in Parliamentary ones – is granted the authority to negotiate and sign treaties. In practice, this authority is often delegated to the Minister of Foreign Affairs and most negotiations are conducted by diplomatic personnel. Although international law recognizes that some treaties may become binding immediately upon signature, most require ratification.4 In virtually all countries, the formal instrument of ratification – the solemn act that expresses the state’s intent to be bound by a treaty – is issued by the Head of State. In countries where the Head of State does not personally exercise executive authority, such as in the United Kingdom, this function is exercised in accordance with the relevant constitutional provisions or conventions. The most widespread – and arguably the most significant – restriction on the executive’s power to enter into treaties is the requirement, typically enshrined in the Constitution, that ratification be authorized by prior legislative vote. Thus, Art. II, sec. 2 of the U.S. Constitution authorizes the President to conclude treaties upon the ‘advice and consent’ of two-thirds of the Senate. This example is somewhat atypical: 3 An organic law is a law that provides the fundamental rules that govern a state or organization. A constitution is a kind of organic law, but in many countries – particularly in the civil law tradition – other organic laws govern the structure and functioning of the legislature, court system, ministries and other institutions, and are considered hierarchically superior to ordinary laws. 4 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331.

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in most countries that require legislative approval, it must come from either the lower house or both houses of the legislature and only requires a simple majority. Indeed, according to our data, as of 2013, 52 percent of countries with a legislative approval requirement grant this power to the lower house of Parliament, while another 42 percent grants the power to both houses. A mere 7 percent grants this power, like the U.S., to the upper house. In other countries – especially those that retain the traditional British constitutional framework – treaties may be ratified by executive action without any prior legislative authorization. According to our data, 27 percent of countries had no legislative approval requirement in 2013. The rules governing ratification empower different political actors in different countries and often create veto points, which may systematically affect patterns of treaty ratification. As of 27 April 2015, the U.S. Department of State reported that 38 treaties were pending before the Senate, the oldest of which – ILO Convention No. 87 Concerning Freedom of Association and Protection of the Right to Organize – was submitted by the President on 27 August 1949.5 Many other proposed treaties have been withdrawn or simply not submitted for lack of any realistic prospect of Senate approval. Thus, in the United States, onethird of the Senate can effectively veto treaty ratification, while the House plays no formal role. In other countries, rules governing treatymaking create different formal veto points, whose impact may depend on the institutions they empower and the ability of domestic interests to effectively mobilize to exercise that veto. This affects upstream treaty negotiations as well, as they are conducted in the shadow of the downstream approval process. The impact of legislative approval requirements on treaty-making is complicated by several further considerations. First, the approval requirement does not typically apply to all treaties, and countries vary considerably in the criteria used to identify those treaties that require legislative action. In many countries, constitutional provisions list specific categories of treaties. Thus, Article 53 of the French Constitution provides: Peace treaties, trade agreements, treaties or agreements relating to international organization, those committing the finances of the State, those modifying provisions which are the preserve of statute law, those relating to the status of persons, and those involving the ceding, exchanging or acquiring 5 US Department of State, ‘Treaties Pending in the Senate’, accessed 13 September 2016 at http://www.state.gov/s/l/treaty/pending/.

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154 Research handbook on the politics of international law of territory, may be ratified or approved only by an Act of Parliament. They shall not take effect until such ratification or approval has been secured.6

A notable trend has been for these lists to expand over time, possibly to reflect the growth of treaty regimes in areas of traditional legislative authority and greater concern about the democratic accountability of treaty-making. In particular, while earlier lists evidenced great concern with legislative approval of alliances and peace treaties, more recent ones almost universally require approval of treaties that change domestic law or commit public spending or borrowing. As of 2013, 59 percent of all countries with legislative approval requirements explicitly require approval for treaties that alter domestic law, while 32 percent explicitly require approval for treaties that affect domestic spending. Another 30 percent require approval for all treaties, thus further increasing the prevalence of legislative approval requirements for treaties that alter domestic law or domestic spending. Even in countries whose constitution appears to require legislative approval for all treaties, a more complicated system often applies in practice. Sometimes, organic laws on treaty-making narrow this requirement to an enumerated list, effectively creating a system similar to that described above. This is a common practice in Eastern Europe and the former Soviet Union. For example, the Constitution of Belarus simply provides that ‘the House of Representatives shall … consider draft laws including … ratification and denunciation of treaties’ and that ‘the Council of the Republic shall … approve or reject draft laws adopted by the House of Representatives on the introduction of changes and additions into the Constitution; on the interpretation of the Constitution; other draft laws’.7 The Law on Treaties clarifies this somewhat vague language by providing that the National Assembly must vote to approve ratification, but only in the case of treaties falling within categories enumerated in the law. In addition, many countries allow the executive to resort to alternative procedures to enter into binding international agreements. Thus, in the United States, the President may enter many such agreements by obtaining majority approval from both Houses of Congress (a ‘Congressional-Executive Agreement’) or on his own (a ‘Single Executive Agreement’). These procedures are routinely used for important agreements: for example, the WTO agreements and NAFTA were concluded as CEAs. U.S. courts have held that the choice of treaty form is a 6 7

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non-justiciable political question, therefore allowing the President to freely choose among these options, subject only to political constraints.8 The proliferation of treaties since the beginning of the twentieth century has led to many more CEAs and SEAs, overshadowing treaties.9 According to our coding, as of 2013, 68 percent of all countries with legislative approval requirements recognize some kind of executive agreements. Yet, the use of such alternatives is not usually free of restrictions. In France, for example, it is well-established that ‘simplified form’ agreements – binding agreements entered into by simple signature without ratification – may not be used in areas covered by Article 53’s legislative approval requirement. International agreements entered into through such procedures may also not have the same domestic legal status as treaties concluded through the legislative approval procedure. In the United States, while Article II treaties appear not to be subject to the Article I limitations on Congressional legislative power, CEAs must rest on an Article I power in order to constitute valid federal law. As for SEAs, their domestic legal effect is controversial, but it seems that in most circumstances they cannot displace federal or state law. Indeed, according to our coding, as of 2013, only seven countries allow the executive to bypass legislative approval requirement and give these agreements the same constitutional status as treaties concluded with legislative approval.10 Second, the exact role of the legislative branch in the treaty-making process can vary considerably. In many countries, ratification of a treaty is approved by an ‘up or down’ vote on a short bill or resolution, without granting the legislature the ability to modify the treaty or introduce reservations. In others, like the United States, the legislature plays a significant role in shaping the treaty, introducing reservations that are binding on the President in the sense that he or she may only ratify the treaty subject to such modifications. For example, when the United States ratified the International Covenant on Civil and Political Rights in 1994, the Senate appended numerous reservations, declarations and understandings that significantly constrain its domestic legal impact. For treaties that represent the outcome of precise bargaining, such as trade treaties, 8

Made in the USA Foundation v United States, 242 F.3d 1300 (11th Cir.

2001). 9 Oona A. Hathaway, ‘Treaties’ End: The Past, Present, and Future of International Lawmaking in the United States’ (2008) 117 Yale Law Journal 1236. 10 These are Cameroon, Papua New Guinea, Venezuela, Zimbabwe, Brazil, Norway and Indonesia.

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the possibility that the legislature might revisit the ‘bargain’ may dissuade foreign partners – hence the systematic use of ‘fast track’ authority by which Congress commits itself in advance to an ‘up-or-down’ vote.11 Third, while the executive often requires legislative approval to conclude treaties, it can usually withdraw from treaties unilaterally. Indeed, only a handful of constitutions expressly require legislative approval for withdrawal from treaties whose ratification required legislative action.12 In many countries, constitutional silence on this point is assumed to authorize the executive to withdraw unilaterally from treaties. In the United States, federal courts have held that whether the President could validly withdraw from a treaty without involving Congress is a nonjusticiable political question, once again leading to a situation where the President can – and does – act unilaterally.13 The ability of the executive to withdraw from treaties unilaterally may have important implications for theories which hold that states use treaties to create credible commitments towards domestic or foreign audiences. However, as Brewster notes, there are significant practical constraints on the executive’s use of withdrawal to escape treaty obligations.14 Finally, countries sometimes have special rules concerning the ratification of particularly sensitive treaties. For instance, in several countries cessions of territory require a supermajority vote that does not apply to ordinary treaties.15 Importantly, many states also have special rules regarding treaties by which the state joins an international organization or delegates additional powers to it, sometimes going so far as to require a national referendum approving the commitment. For example, in 2011 the United Kingdom adopted legislation requiring a referendum prior to the ratification of significant amendments to the principal EU treaties.16 As a result, EU reform efforts during the financial crisis have come under 11 E.g., Bipartisan Congressional Trade Priorities and Accountability Act 2015, 19 USC s 4201 note. 12 For example, pt 3 art 19.1 of the Danish Constitution provides that the King shall not ‘except with the consent of the Folketing, terminate any international treaty entered into with the consent of the Folketing’. 13 E.g., Goldwater v Carter, 481 F.Supp, 949 (D.D.C. 1979). 14 Rachel Brewster, ‘Unpacking the State’s Reputation’ (2009) 50 Harvard International Law Journal 231. 15 For example, art 293 of the Constitution of Burundi provides: ‘Any cession, any exchange, any adjunction of territory is invalid without the consent of the Burundian people expressed by referendum.’ 16 European Union Act 2011, s 2. A similar requirement applies in Ireland as a result of a 1987 Supreme Court decision.

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great pressure to avoid treaty amendments, sometimes limiting the options available. Another significant constraint on treaty-making is the increasingly common requirement that ratification be subject to prior constitutional review. As will be seen below, in most countries treaties – even where directly applicable – are considered hierarchically inferior to the constitution, so that in principle the latter should prevail in the event of a conflict. Traditionally, however, remedies for such conflicts were often unavailable, especially in countries without a tradition of judicial review of legislation. For example, the constitution of Portugal under the Salazar regime explicitly prohibited courts from engaging in constitutional review of treaties.17 While this is a somewhat extreme example, the principle that constitutionality of treaties was not subject to review by courts was once widespread, especially in civil law systems. In recent years, constitutional courts have proliferated, and many have been granted the power to review treaties prior to their ratification. Treaties can fail this test because the proper constitutional procedure was not followed – for example, a treaty that required legislative approval was not submitted. More significantly, several constitutional courts may now review treaties for their compatibility with national bills of rights. The German Constitutional Court has been particularly active in reviewing European treaties and acts in light of national constitutional rights.18 It is not the only court with this power: as of 2013, 39 percent of all countries provide a procedure for formal review to assess treaties’ constitutionality prior to ratification. The rise of national constitutional courts as another veto point in treaty-making may have a substantial impact on treaty negotiation and ratification, especially in countries where such courts find themselves at odds with government policy. Unlike for treaties, national constitutions rarely if ever address the allocation of authority among branches of government with respect to participation and the formation of customary international law. This is unsurprising, given that in principle all organs of the state can contribute to the CIL formation process through their practice and expressions of opinio juris. Nevertheless, the allocation of responsibilities within the domestic legal system will affect who the actual players are. For 17

Constitution of Portugal (1933), art 123, para 2. See Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] 18 March 2014, docket number 2 BvR 1390/12 (Ger.); Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] 28 February 2012, docket number 2 BvE 8/11 (Ger.); Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] 7 September 2011, docket number 2 BvR 987/10 (Ger.). 18

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example, the existence in the United States of a statute authorizing U.S. courts to hear certain civil actions alleging violations of the ‘law of nations’19 led to a substantial body of case law on international human rights that may affect the development of the relevant CIL norms. Without this grant of authority to the courts, the executive would likely have remained the principal contributor to the development of international human rights law through its interventions in international organizations, monitoring bodies and courts. 2.2 Interpretation, Decision-Making and Implementation In most countries, formal rules also govern the reception of international law in the national legal system. These rules typically draw a sharp distinction between treaties and customary international law. With respect to treaties, the first fundamental question is whether ratified treaties may be given direct effect by courts without further legislative action. In the British constitutional tradition, while the sovereign may ratify treaties without any approval by Parliament, such treaties do not create domestic law binding on courts unless implemented by an Act of Parliament. By contrast, in many countries ratified treaties become part of domestic law – either automatically or after some further act of the executive such as a formal proclamation and/or publication in the official journal – so that courts may apply them as independent rules of decision without further legislative action. This difference is tracked by the traditional classification of national legal systems as ‘monist’ or ‘dualist’. The constitutions of many countries address the status of treaties in the domestic legal order, although these provisions are rarely complete and systematic. The US constitution, which provided one of the earliest explicit statements on this topic, is illustrative: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.20

This provision makes it clear that treaties are federal law, binding on courts, and superior to State constitutions and laws. In principle, the 19 20

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28 USC s 1350. United States Constitution, art VI.

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direct application of treaties in the domestic legal order is a fundamental allocative choice, as it empowers courts to interpret treaties and apply them to resolve disputes among private parties, and potentially to enforce them against other branches of government. This situation stands in stark contrast with ‘dualist’ systems in which the legislature acts as a gatekeeper, shaping the interpretation of treaties and circumscribing their scope of application and available remedies through implementing legislation. But even explicit constitutional provisions do not answer all questions relating to the reception of treaties, many of which are settled by legislation or by judicial and government practice. In practice, the principal recurrent questions relate to the ‘self-executing’ nature of particular treaties; the place of treaties in the domestic hierarchy of legal norms; and whether national laws should be interpreted in light of ratified treaties. Along all three of these dimensions, there is considerable variation among legal systems that is not systematically captured by constitutional provisions. First, even in systems where treaties are in principle directly applicable, not all treaties are in fact applied by courts. In many such systems, courts have developed doctrines to determine which treaties may appropriately be applied without legislative action and which ones cannot, for example because their language is insufficiently precise; because they do not create direct rights or obligations that may be invoked by litigants; because the intent of the parties was that they be implemented by the legislature or the executive; or simply because they are ‘political in nature’.21 Indeed, according to our data, no less than 84 percent of all countries where treaties apply directly recognized such exceptions by 2013. Thus, the self-execution doctrine is a source of considerable variation in the implementation of treaties, with the very same provisions sometimes being held self-executing in one country and not in another. In addition, a number of other legal obstacles such as justiciability, act of state, and immunities – which Eyal Benvenisti has called ‘avoidance doctrines’22 – may stand in the way of application of treaties by courts, although in later work he notes that their use has become less frequent 21

Thomas Buergenthal, ‘Self-Executing and Non-Self-Executing Treaties in National and International Law’ (1992) 235 Recueil des cours – Académie de Droit International 303. 22 Eyal Benvenisti, ‘Judicial Misgivings Regarding the Application of International Law: An Analysis of Attitudes of National Courts’ (1993) 4 European Journal of International Law 159.

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and courts have become more willing to apply treaties.23 Thus, selfexecution and other avoidance doctrines can be seen as self-imposed constraints on the ability of courts to interpret and apply treaties, perhaps meant to avoid clashes with other branches of government.24 The extent to which such doctrines are linked with measures of the autonomy of courts – such as judicial independence – is an important avenue for research.25 Second, the status of ratified treaties within the hierarchy of domestic legal norms also has important implications. For example, if – as in the United States – self-executing treaties are considered equal to federal statutes, the legislature retains the power to displace prior treaty obligations. Indeed, in the late nineteenth century the Supreme Court famously held that treaty promises made to Native American tribes were overridden by later federal legislation, and this rule was later held to apply to international treaties.26 Because the treaty’s obligations remain in force at the international level, such doctrines can easily result in situations where the state finds itself, intentionally or not, in breach of international commitments. Since the mid-twentieth century, many countries have granted ratified treaties supra-legislative status, which means that a treaty prevails over an inconsistent statute, even if subsequently enacted. Indeed, as of 2013, 75 percent of all countries that apply treaties directly make them superior to legislation (compared to a mere 25 percent in 1946, for example). In effect, this gives treaties quasi-constitutional status, and in many of these 23 Eyal Benvenisti, ‘Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts’ (2008) 102 American Journal of International Law 241. 24 National courts follow different rules as to whether deference to the executive is required for treaty interpretation issues and for determination of the existence and content of CIL rules. This can lead to cross-country differences in techniques of identification and interpretation. For example, foreign states and commentators have criticized what they perceive as eccentric interpretations of international human rights law by US courts in Alien Tort Statute cases. Deference to the executive may also be required for factual or political issues, such as whether a foreign state is recognized, with implications for its ability to own property, initiate court proceedings, or invoke the protection of immunities. 25 Indeed, in previous research, we have suggested that there might be an inverse relationship between exceptions for non-self-executing treaties and judicial independence: where countries lack independent courts, they are less likely to have exceptions for non-self-executing treaties. Verdier and Versteeg (n 2). 26 E.g., The Cherokee Tobacco Case [1870] 78 US 616.

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countries courts are empowered to strike down or disregard laws that conflict with treaties. This supra-legislative status is typically embodied in explicit constitutional provisions. For example, Article 91(2) of the Polish Constitution provides: An international agreement ratified upon prior consent granted by law shall have precedence over laws if such an agreement cannot be reconciled with the provisions of such laws.27

In some countries, such as Belgium, courts have taken it upon themselves to declare treaties superior to statutes, thus effectively granting themselves a new power of constitutional review of legislation.28 Finally, while direct effect and self-execution is ostensibly the ‘stronger’ way in which treaty obligations can be incorporated in the national legal system, it is not the only way. Another is the principle of consistent interpretation,29 which is embodied in Article 233 of the South African Constitution: When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.30

While such constitutional provisions are rare, the principle itself is common both in common law and civil law systems. Indeed, as of 2013, 65 percent of all countries applied such principle. Consistent interpretation can be of great importance in so-called ‘dualist’ systems because it implies that while courts may not give direct effect to unimplemented treaties, they may take them into account in interpreting legislation in order to avoid breaching the state’s ratified but unimplemented treaty obligations. This can go quite far, as illustrated by a famous Australian High Court case, Minister of State for Immigration and Ethnic Affairs v Teoh.31 The Court held that the ratification by Australia of the U.N. Convention on the Rights of the Child, even if unimplemented by legislation, created legitimate expectations that the ‘best interest of the 27

Constitution of the Republic of Poland, art 91(2). Cass, 27 mai 1971, Pas, 1971, p 886. 29 Andre Nollkaemper and Gerrit Betlem, ‘Giving Effect to Public International Law and European Community Law before Domestic Courts: A Comparative Analysis of the Practice of Consistent Interpretation’ (2013) 14 European Journal of International Law 569. 30 Constitution of South Africa, art 233. 31 [1995] 183 CLR 273. 28

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child’ standard would be applied by the government in an immigration decision regarding his father. The reception of customary international law in national legal systems also gives rise to complex questions. Very few constitutions expressly address the status of CIL, the South African Constitution again being a notable exception. Article 232 provides: ‘Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.’32 Despite the lack of similar constitutional provisions, the vast majority of states – including those in which treaties are not considered directly applicable – follow a similar pattern. CIL may – at least in principle – be applied by courts without legislative implementation, but it can be displaced by national legislation. According to our data, as of 2013, 89 percent of all countries apply CIL directly, 82 percent of which make it inferior to ordinary legislation. In federal systems such as the United States, this may lead to complex debates about the exact status of CIL as ‘federal’ or ‘state’ common law, with implications for its ability to displace subnational legislation.33 The willingness of national courts to apply CIL may also vary across regimes: for example, the U.K. Supreme Court has held that it could not apply international criminal prohibitions without legislative implementation.34 While these doctrines have obvious implications for the allocation of interpretive authority among domestic institutions, they also impact the ‘downstream’ stages of decision-making and implementation. Thus, when international law is directly applicable by courts, private actors may be more likely to comply, because otherwise they can be sued in those courts. In such cases, compliance reflects a logic of consequences, insofar as it is motivated by fear of court-imposed sanctions. This impact, however, may vary depending on the vulnerability of different addressees of the rule to effective domestic lawsuits. For example, if courts

32

Constitution of South Africa, art 232. E.g., Curtis A. Bradley and Jack L. Goldsmith, ‘Customary International Law as Federal Common Law: A Critique of the Modern Position’ (1997) 110 Harvard Law Review 815; Harold Hongju Koh, ‘Is International Law Really State Law?’ (1998) Harvard Law Review 1824; Curtis A. Bradley, Jack L. Goldsmith and David H. Moore, ‘Sosa, Customary International Law, and the Continuing Relevance of Erie’ (2007) 120 Harvard Law Review 869; Carlos M. Vázquez, ‘Customary International Law as US Law: A Critique of the Revisionist and Intermediate Positions and a Defense of the Modern Position’ (2011) 86 Notre Dame Law Review 1495. 34 R v Jones [2006] UKHL 16, [2007] 1 AC 136. 33

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systematically use avoidance doctrines to avoid clashes with the government while allowing lawsuits against private parties to proceed, treaties that target the latter may prove more effective.35 On the other hand, if courts are determined and possess the institutional capacity to aggressively enforce international law rules, they may be able to do so even without a formal doctrine of direct application. This is illustrated by cases like Teoh, in which domestic courts effectively use the doctrine of consistent interpretation to enforce international law standards against the government. Another important – and largely unexplored – area is the impact of international law reception doctrines outside the courts. In countries that follow a ‘monist’ system, courts may decline to enforce treaties for various reasons, such as their non-self-executing nature. But scholars and lawyers often argue that such treaties are nevertheless part of domestic law and impose an obligation on other state authorities – including the executive and administrative agencies – to respect them. Indeed, government legal advisers routinely provide advice on the legality of proposed actions under international law in situations where the relevant obligations would not be enforceable by domestic courts even if breached. In this sense, international law is incorporated in the large body of constitutional and public law that is effectively unenforceable by courts but may affect decisions through other mechanisms, including logics of appropriateness, bureaucratic inertia, and enhanced political pressure by interest groups or the general public. 2.3 Governance Systems The rules governing the interaction of international law and domestic law also cut across different governance systems and may be a source of systematic differences in their effectiveness. Some areas of international affairs are governed by treaties and CIL rules which, by necessity or design, rely heavily on domestic institutions for their effective implementation. For example, the immunities granted to foreign states and diplomats require that national prosecutors, courts and tax authorities, among others, carve out exceptions from generally applicable domestic laws. They may be unable to do so unless the national legal system gives direct effect to the relevant obligations or the legislature has adopted appropriate implementing legislation. However, in other areas of international law 35 David L. Sloss and Michael P. Van Alstine, ‘International Law in Domestic Courts’, Chapter 4 in this volume.

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such as the use of force, international law constraints may rely only marginally on national legal systems for their impact. In those areas, the rules on reception may not have much relevance for compliance and effectiveness. In this respect, an important but neglected dimension is the relationship between legalization and judicialization at the international and domestic levels. In some areas, like immunities and (arguably) human rights, there is an extensive and detailed body of international law but little or no binding dispute resolution mechanisms at the international level, so that national courts are the dominant forum for application of the relevant rules. In other areas, like trade, there is extensive legalization and judicialization at the international level but very little reliance on domestic courts to enforce treaties or implement international decisions. International trade treaties are rarely litigated domestically, and WTO decisions are usually implemented by executive or legislative action rather than by national courts. In yet others areas, such as international investment, there is an extensive system of binding international arbitration, but its decisions must be recognized and enforced by national courts in order to be effective. At the domestic level, the rules on international law reception themselves reflect the outcomes of political processes and change over time. They may reflect principled decisions by constitution-makers wishing to balance competing objectives, such as the need to establish international credibility by effectively implementing international obligations and the need to protect domestic priorities like democratic accountability or federalism. The resulting compromises may be evidenced by the strong correlation between the status of ratified treaties in national legal systems and constraints on treaty-making: states that give treaties more robust domestic legal effect also tend to make them harder to conclude. Even within a given constitutional framework, patterns of international law reception may change over time to reflect ongoing struggles for authority among different institutions. Thus, Benvenisti argues that national courts have applied international law more aggressively in recent years in order to wrest traditional areas of authority back from the executive.36 The realization that rules on reception are themselves the outcomes of political processes means that their impact on the various stage of international governance is, in a sense, a second-order effect. In some circumstances, it may be fruitful to look behind these rules to their own underlying causal factors to explain outcomes satisfactorily. Nevertheless, 36

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Benvenisti (n 23).

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we believe the body of rules governing reception has an important intervening causal role. By providing a baseline structure for the interaction of international law and the national legal system, it shapes the expectations of actors as to who participates in the various stages of rulemaking and application, and what rules can legitimately be applied to whom. As a result, the outcomes may differ from what we would observe if the ‘deep’ causal factors were translated directly into politics.

3. DOMESTIC INCORPORATION IN POLITICAL SCIENCE RESEARCH The insight that international law requires domestic implementation is increasingly common in the political science literature. A number of recent studies have stressed the importance of domestic political processes, such as political mobilization,37 veto players,38 democracy39 and domestic parliaments.40 Domestic arrangements not only aid compliance with international agreements, they may also affect the likelihood of joining international agreements in the first place.41 The idea that domestic political institutions and domestic politics affect states’ relationship with international law is central to the liberal tradition of international relations.42 While the importance of domestic politics is widely recognized, less attention has been given by political scientists to domestic legal systems and how they allocate authority among domestic institutions and other political actors over the state’s incorporation of international law. Some 37

Simmons (n 1); Mala Htun and S. Laurel Weldon, ‘The Civic Origins of Progressive Policy Change: Combating Violence Against Women in Global Perspective: 1975–2003’ (2012) 106 American Political Science Review 548. 38 Lupu, ‘Legislative Veto Players’ (n 1). 39 Charles Lipson, Reliable Partners: How Democracies Have Made a Separate Peace (Princeton University Press 2003). 40 Lisa L. Martin, Democratic Commitments: Legislatures and International Cooperation (Princeton University Press 2000); Kevin L. Cope, ‘Congress’s International Legal Discourse’ (2015) 113 Michigan Law Review 115. 41 Simmons (n 1). 42 Robert D. Putnam, ‘Diplomacy and Domestic Politics: The Logic of Two-Level Games’ (1988) 42 International Organization 427; Helen V. Milner, Interests, Institutions, and Information: Domestic Politics and International Relations (Princeton University Press 1997); Andrew Moravcsik, ‘The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe’ (2000) 54 International Organization 217.

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scholars have emphasized the importance of independent judiciaries in enforcing international law, especially international human rights treaties.43 Indicators of judicial independence, however, are oriented more towards the ‘law in action’ (or law de facto) than ‘law on the books’ (or law de jure) While there are advantages to using de facto measures, such indicators are likely to be correlated with other factors (such as a tradition of respect for the rule of law) that also affect compliance with international law. It thus becomes more difficult to disentangle the effect of judicial independence on treaty compliance. What is more, judiciaries are themselves empowered by formal legal rules. For example, in the overwhelming majority of countries, it is the constitution or other formal legal rules that empower courts to strike down domestic statutes that contradict the constitution44 or international treaty commitments.45 Thus, whether or not judges are actually instrumental in enforcing international law may depend on whether they are empowered to invalidate statutes that contradict international treaties. It is important, therefore, to study judicial independence in conjunction with the formal legal rules that govern domestic courts’ application of international law. As we have argued, scholars interested in the domestic implementation of international law should consider paying attention to the formal domestic legal rules that govern states’ relationship to international law. These rules can affect states’ propensity to undertake international legal commitments as well as their ability and willingness to enforce them. While a number of recent studies have recognized this insight in principle, existing empirical approaches do not fully reflect the intricacies of the domestic legal rules that shape states’ relationship with international law. Instead, existing studies have used various proxies, including: (i) broad legal traditions; (ii) explicit constitutional provisions; or (iii) a binary distinction between monist and dualist systems. While these studies have made valuable contributions to the literature, we believe that further progress can be made by using more fine-grained data that captures the specific rules by which states make and apply international law. In the remainder of this section, we will describe some of the existing indicators and contrast them with our own data. 43 Powell and Staton (n 1); Simmons (n 1); Wayne Sandholtz, ‘Treaties, Constitutions, Courts, and Human Rights’ (2012) 11 Journal of Human Rights 17; Lupu, ‘Best Evidence’ (n 1). 44 Tom Ginsburg and Mila Versteeg ‘Why Do Countries Adopt Constitutional Review?’ (2014) 30 Journal of Law, Economics, and Organization 587. 45 Antonio Cassese, ‘Modern Constitutions and International Law’ (1985) 192 Recueil des cours – Académie de Droit International 331.

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3.1 Legal Traditions In recent years, some scholars have emphasized the importance of legal traditions in states’ relationship with international law. For example, Beth Simmons finds that the common law legal tradition affects states’ attitudes towards international human rights law: common law countries are less likely to ratify international human rights treaties and more likely to add reservations.46 Sara Mitchell and Emilia Powell have found that legal traditions inform states’ approaches to international adjudication, including their support for the International Court of Justice and the International Criminal Court.47 Emilia Powell has further shown that variation within the Islamic legal tradition affects Islamic states’ willingness to accept the jurisdiction of the International Court of Justice48 as well as the means by which they settle territorial disputes.49 While legal traditions are a relatively new object of analysis in the international relations literature, they are the central focus of an expansive body of work in economics, often referred to as the legal origins literature.50 Spurred by the work of La Porta, Lopez-de-Silanes, Shleifer and Vishny, this body of literature has shown that common law countries perform better in terms of quality of corporate law,51 the structure of equity and debt markets, judicial quality,52 economic growth53 and corruption, than their civil law counterparts.54 Common law legal origins

46

Simmons (n 1) 83–4. Sara McLaughlin Mitchell and Emilia Justyna Powell, Domestic Law Goes Global: Legal Traditions and International Courts (Cambridge University Press 2011). 48 Emilia Justyna Powell, ‘Islamic Law States and the International Court of Justice’ (2013) 50 Journal of Peace Research 203. 49 Emilia Justyna Powell, ‘Islamic Law States and Peaceful Resolution of Territorial Disputes’ (2015) 69(4) International Organization 777. 50 For an overview, see Rafael La Porta, Florencio Lopez-de-Silanes and Andrei Shleifer, ‘The Economic Consequences of Legal Origins’ (2008) Journal of Economic Literature 285. 51 Rafael La Porta and others, ‘Law and Finance’ (1998) 106 Journal of Political Economy 1113. 52 Rafael La Porta and others, ‘Judicial Checks and Balances’ (2004) 112 Journal of Political Economy 445. 53 Paul G. Mahoney, ‘The Common Law and Economic Growth: Hayek Might Be Right’ (2001) 30 Journal of Legal Studies 503. 54 La Porta, Lopez-de-Silanes and Shleifer (n 50). 47

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has also been associated with higher respect for the rule of law55 and better de facto human rights practices.56 This body of work has received several strong criticisms, one of the most salient of which is that common law legal origins are correlated with numerous other factors, including colonial policies,57 Protestantism58 or diffusion through legal networks.59 Our data suggests another important correlate of domestic legal traditions: the formal rules that govern states’ relationship with international law. Traditionally, civil law countries have applied international treaties directly (making them ‘monist systems’), while common law systems typically require international law to be implemented through an act of parliament (they are ‘dualist systems’).60 This distinction remains relevant today. According to our data, the correlation between the direct reception of international treaties and a common law legal system is –0.81 in the year 2012.61 Only four of the 37 common law systems in 2012 apply treaties directly, without implementing legislation. Conversely, only one out of the 36 civil law systems (Italy) requires implementing legislation. Thus, to the extent that scholars conclude that legal traditions affect states’ relationship with international law, this raises the question whether the relevant outcomes arise from the broader legal tradition (such as the lack of binding 55

Friedrich A. Hayek, The Constitution of Liberty (University of Chicago Press 1960); Sandra F. Joireman, ‘Colonization and the Rule of Law: Comparing the Effectiveness of Common Law and Civil Law Countries’ (2004) 15 Constitutional Political Economy 315. 56 Sara McLauglin Mitchell, Jonathan J. Ring and Mary K. Spellman, ‘Domestic Legal Traditions and States’ Human Rights Practices’ (2013) 50 Journal of Peace Research 189. 57 Daniel M. Klerman and others, ‘Legal Origin or Colonial History?’ (2011) 3 Journal of Legal Analysis 379. 58 René M. Stulz and Rohan Williamson, ‘Culture, Openness, and Finance’ (2003) 70 Journal of Financial Economics 313. 59 Holger Spamann, ‘Contemporary Legal Transplants: Legal Families and the Diffusion of (Corporate) Law’ (2009) Brigham Young University Law Review 1813. 60 Virginia A. Leary, International Labour Conventions and National Law (Martinus Nijhoff 1982) 36–38; Kaye Holloway, Modern Trends in Treaty Law (Stevens & Sons 1967); John H. Jackson, ‘The Status of Treaties in Domestic Legal Systems: A Policy Analysis’ (1992) 86 American Journal of International Law 310, 319-320. 61 To compute this correlation, we use the legal origins coding by LLSV and contrast it with our own coding of the status of international treaties in domestic legal systems.

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precedent in civil law systems) or from the specific legal rules that govern states’ relationship with international law. At the same time, the explanatory power of legal traditions abates fairly quickly once we delve into the nuances of how domestic law governs the making, application and interpretation of international legal rules. For example, the coding of legal traditions does not capture substantial differences across civil law systems regarding the status of international treaties vis-à-vis domestic law, with some designating treaties as superior to ordinary legislation and others designating them as equal or inferior. Likewise, legal tradition does little to predict the status of customary international law. In the year 2012, the correlation between common law and the direct application of international custom is only 0.14 (while the correlation with the civil law legal tradition is 0.067).62 Thus, to the extent legal traditions serve as a proxy for the formal relationship between domestic and international law, more fine-grained data can better distinguish different domestic legal systems from each other. 3.2 Constitutional Rules Other studies have explored the relationship between domestic law and international law by examining countries’ constitutions. Tom Ginsburg and his co-authors, for example, document how constitutions stipulate rules for making and applying international law, and explore the causes of these different constitutional design choices. They find that both domestic political forces and transnational diffusion explain the manner in which states deal with international law in their constitution.63 Wayne Sandholtz likewise focuses on whether the constitution gives treaties direct effect and superior or equal status to domestic law. He finds that these constitutional rules affect compliance: countries have better human rights records when they have constitutional provisions that make treaties directly available to courts (controlling for ICCPR ratification).64 Oona

62 To compute this correlation, we use the legal origins coding by LLSV and contrast it with our own coding of the status of international custom in domestic legal systems. 63 Tom Ginsburg, Svitlana Chernykh and Zachary Elkins, ‘Commitment and Diffusion: How and Why National Constitutions Incorporate International Law’ (2008) University of Illinois Law Review 201. 64 Sandholtz (n 43).

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Hathaway codes and explores the formal constitutional rules relating to the making of treaties.65 There are good reasons for considering constitutional provisions relating to international law. Constitutions are often meant to serve as credible commitment devices because they raise the cost of deviating from the constitution’s commitments ex post.66 Making the rules that govern a state’s relationship with international law constitutional in nature therefore makes it more likely that these rules will be followed in practice, which in turn sends a signal to potential treaty partners. Indeed, the fact that constitutions are harder to amend than ordinary legislation,67 establish conventions that become harder to change,68 and are usually justiciable,69 all serve as a signal to potential treaty partners that the government is willing to incur the potential costs of following these formal rules in order to reap the benefits of improving international cooperation.70 Thus, when constitutions explicitly state that treaties shall be the supreme law of the land, for example, they suggest that it will be costly for executives or legislatures to simply set aside these treaties, which might make countries with such constitutional provisions more credible treaty partners. Thus, the question of which of these rules are constitutional in nature might thus be of interest in and of itself. The downside of looking at constitutional provisions alone, however, is that many constitutions are silent on many of the dimensions along which domestic legal rules govern a state’s relationship with international law. For instance, while constitutions often explicitly allocate responsibility and articulate procedural rules for making treaties, they are often silent on the status of international agreements and custom in the domestic legal system. In the year 2012, only 74 out of 196 constitutions in force explicitly stipulated the status of international treaties vis-à-vis ordinary 65

Hathaway (n 9). Douglass C. North and Barry R. Weingast, ‘Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in SeventeenthCentury England’ (1989) 49 Journal of Economic History 803. 67 Donald S. Lutz, ‘Toward a Theory of Constitutional Amendment’ (1994) 88 American Political Science Review 355. 68 Russell Hardin, ‘Why a Constitution?’ in Dennis Galligan and Mila Versteeg (eds), Social and Political Foundations of Constitutions (Cambridge University Press 2013). 69 Tom Ginsburg and Mila Versteeg, ‘Why Do Countries Adopt Constitutional Review?’ (2014) 30 Journal of Law, Economics, and Organization 587. 70 David S. Law, ‘Globalization and the Future of Constitutional Rights’ (2008) 102 Northwestern University Law Review 1277; Daniel A. Farber, ‘Rights as Signals’ (2002) 31 Journal of Legal Studies 83. 66

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legislation, according to coding by Elkins and his co-authors.71 In that same year, only 31 out of 196 constitutions in force explicitly stipulated the status of international custom. The majority of constitutions, thus, were silent on the matter. Yet, even when the constitution is silent, domestic legal systems still have rules for receiving international treaties and custom: these rules just happen to be contained in ordinary legislation or judicial interpretations rather than in the constitution itself. Thus, in many instances, researchers interested in the domestic rules that govern states’ relationship with international law should not look at the constitution alone, which can paint an incomplete or misleading picture. 3.3 Monism-Dualism When considering the formal relationship between domestic law and international law, scholars often distinguish between monist and dualist systems. This distinction is central in international law scholarship,72 and a compulsory feature of contemporary textbooks. According to the widely used textbook by Lori Damrosch and David Murphy, monist systems ‘regard international law and national law as two parts of a single system’ in which ‘international law automatically passes into the state’s legal system’, so that ‘when the state ratifies a treaty, that treaty is automatically and fully incorporated into national law’.73 Furthermore, ‘[i]n a pure version of monism, national law is seen as ultimately deriving its authority from international law, which stands higher in the hierarchy of legal norms’.74 By contrast, dualist systems regard ‘international law and national law as separate legal systems’ whereby ‘[a] rule of international law binding upon the state does not automatically become a part of national law; it only does so when it has been transformed or incorporated into national law by an act at the national

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Ginsburg, Chernykh and Elkins (n 63). E.g., J.G. Starke, ‘Monism and Dualism in the Theory of International Law’ (1937) 17 British Yearbook of International Law 66; Edwin Borchard, ‘The Relation Between International Law and Municipal Law’ (1940) 27 Virginia Law Review 137; Dinah Shelton, International Law and Domestic Legal Systems: Incorporation, Transformation, and Persuasion (Oxford University Press 2011). 73 Lori Fisler Damrosch and Sean D. Murphy, International Law: Cases and Materials (6th edn, West Academic Publishing 2013) 621. 74 ibid. 72

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level, such as an implementing statute for a treaty’.75 Once so incorporated, the international rule enjoys no special superiority and may be amended or repealed by later enactments. Because the distinction is so central to legal scholarship, political scientists interested in exploring how the reception of international law in the domestic legal order affects outcomes might be tempted to rely on it. Indeed, recent empirical studies have attempted to capture the distinction empirically, by classifying countries as either monist or dualist.76 However, while the monist-dualist distinction offers a useful starting point for thinking about the relationship between international law and domestic law, our data indicates that a simple binary classification fails to capture many relevant features of this relationship. First, our data suggests that most monist systems routinely deny direct application to treaties and require legislatures to incorporate the treaty into domestic law. Specifically, all but a handful of monist systems deny direct applicability to treaties considered ‘non-self-executing’.77 As a result, like in dualist systems, many treaties ratified by monist states in fact require legislative involvement to implement them domestically. This finding suggests that the ‘pure’ version of the monist system, in which all ratified treaties automatically become applicable by courts, is virtually non-existent. Whether treaties apply directly tends to differ from treaty to treaty, and for many treaties, monist and dualist systems are in fact similar to one another.78 In either case, a binary distinction between monist and dualist systems does little to explain which treaties apply directly, and which ones do not. Second, our data reveals that many monist systems do not in fact consider treaties superior to ordinary legislation, but often treat them as equal or even inferior. Indeed, up until the 1960s, the overwhelming majority (between 70 and 80 percent) of monist systems did not grant treaties higher hierarchical status over domestic legislation. Instead, taking into account that dualist countries implement treaties by ordinary 75

ibid. Mila Versteeg, ‘Law versus Norms: The Impact of Human Rights Treaties on Constitutional Bills of Rights’ (2015) 171 Journal of Institutional and Theoretical Economics 87; Wayne Sandholtz, ‘Domestic Law and Human Rights Treaty Commitments: The Convention against Torture’ (2015) Journal of Human Rights. 77 Verdier and Versteeg (n 2). 78 Note that in monist systems, non-self-executing treaties may be considered domestic law after they have been ratified. Even though they cannot be applied by courts, this might still matter for other purposes. Buergenthal (n 21) 318. 76

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statutes, the majority of countries (whether monist or dualist) treated treaties as equal to domestic legislation. It was only in the 1960s that treaty superiority – which is now considered a core feature of ‘pure’ monism – became more common.79 This finding again suggests that a binary classification of monist and dualist systems is of limited utility in explaining the status of treaties in domestic law, and that it is more useful to rely on data that directly captures the status of treaties versus ordinary legislation. It moreover suggests that it is important to take account of variation over time. While broad classifications of monist and dualist systems have remained stable, the specific rules that govern states’ relationship with international law have not. Third, our data reveals that the monist-dualist divide is wholly irrelevant to explaining the status of customary international law in domestic legal systems. As it turns out, the vast majority of systems that are ‘dualist’ with respect to international treaties are ‘monist’ when it comes to customary international law, while a few systems that give direct application to treaties deny it to international custom. More generally, our data reveals that all but a handful of countries give direct application to international custom. Our data also reveals another difference in approach between treaties and custom. While almost every single country in the data is monist with respect to customary international law, most countries consider it hierarchically inferior to domestic statutes. In that sense, the reception of international custom is different from the reception of treaties, whose hierarchical position has generally been elevated over time. Again, this insight cautions against the use of a binary distinction, and suggests that researchers should use data that captures the status of international custom directly. Fourth, our more granular data reveals that it is inappropriate to consider dualist systems as more protective of legislative involvement than monist systems. The idea that dualist systems are more protective of sovereignty, and less sympathetic to international law, is a long-standing theme in the international law literature. As Eric Posner and Alan Sykes observe, ‘[b]ecause international law automatically enters domestic law in monist states, enthusiasts for international law tend to applaud monism and criticize dualism’.80 By contrast, dualist systems are often perceived

79 Even today, about 20 per cent of monist systems continue to treat treaties as equal to domestic legislation. 80 Eric A. Posner and Alan O. Sykes, Economic Foundations of International Law (Harvard University Press 2013) 14.

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as more attached to state sovereignty, more sceptical of international legal obligations, and (more positively) more democratic.81 By contrast, our data reveals that monist systems almost universally remedy this potential democratic deficit by requiring legislative approval prior to treaty ratification, especially for those treaties that alter the content of domestic law.82 The true difference between monist and dualist systems, then, is between ex ante and ex post legislative involvement. In monist systems, the legislature gives prior approval, while in dualist systems it has to adopt implementing legislation. To be sure, this difference may have real policy implications. For instance, ex ante legislative involvement might allow the state to commit more credibly, because other parties will know the treaty has been vetted by its democratic institutions. Ex post involvement, on the other hand, might allow legislatures to better tailor the treaty to local circumstances, ultimately implementing it more effectively. Again, the relevant differences cannot be captured by a binary monist-dualist classification, but require more detailed information on the role that the legislature plays in different systems. Together, these findings show that the monist-dualist divide is at best an imperfect starting point for exploring the formal relationship between domestic legal orders and international law. For purposes both of accurately describing national legal systems and developing sound policy arguments on how international law should interact with national law, it is more useful to talk about specific features of each system rather than to rely on broad-brush classifications as monist or dualist. The data we have collected will allow researchers to do so.

4. CONCLUSION This chapter has argued that the formal legal rules that govern the relationship between international law and domestic law shape the political environment in which international governance processes unfold by allocating authority over the various stages of governance among domestic institutions and political actors. Thus, rules about such matters as treaty-making and the reception of international law may importantly affect both processes and outcomes. However, despite growing recognition of the importance of domestic implementation of international law, existing data on these formal rules is at best incomplete, and in some 81 82

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cases potentially misleading. By introducing a dataset that captures in detail numerous aspects of the formal relationship between international law and domestic legal systems, we hope to contribute to further research on this crucial juncture in international governance.

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7. Regime complexes as governance systems Benjamin Faude and Thomas Gehring

1. INTRODUCTION1 From trade to environment, from human rights to anti-terrorism, from maritime piracy to food security and international crisis management, the international system is composed of multiple international institutions with partially overlapping competences. However, contrary to nationstates and the European Union (EU), the international system lacks an integrative institutional framework or a ‘final authority’ within or through which norm conflicts among overlapping international institutions can be mediated and solved. This institutional setting changes international politics and it challenges international law. It allows strategic actors to move the political game from within an institutional arrangement to the area of overlap between institutional arrangements. Against this backdrop, states seek to maximize their gains not only through strategic action within individual institutions, but also by strategically choosing and using the institutions themselves. As a result, the integrity of international law is challenged. At the same time, it becomes possible to contest rigid institutional structures through cross-institutional action. To denote overlapping and non-hierarchical institutions that govern a particular issue-area, Kal Raustiala and David Victor coined the term ‘regime complex’.2 This chapter discusses how regime complexes affect the relationship between international law and international politics at the different stages of the governance process outlined in the introductory chapter. To do so, it is necessary to pay analytical attention to the (strategic) behavior of states and to structural questions of emerging order in a fragmented institutional setting. Against that backdrop, we introduce the idea that regime complexes constitute a particular type of 1

The authors would like to thank Orfeo Fioretos, Stephanie Hofmann, Peter Katzenstein, Fariborz Zelli and the participants of the ‘Rule of Law – Colloquium’ at the WZB Berlin Social Science Center for helpful comments on an earlier version of this chapter. 2 Kal Raustiala and David G. Victor, ‘The Regime Complex for Plant Genetic Resources’ (2004) 58(2) International Organization 277.

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governance system. This allows us to relate the actor-centered work of political scientists to the order-centered work of international lawyers. We suggest that catalyzing a dialogue between International Relations (IR) and International Law (IL) on the implications of regime complexes is a fruitful exercise for both disciplines. International legal scholars, on the one hand, can profit from IR research on ‘cross-institutional strategizing’ in a thickly institutionalized international system.3 IR scholars are particularly interested in cross-institutional state action. They have developed or imported the concepts of ‘forum-shopping’,4 ‘regime-shifting’5 and ‘competitive regime creation’6 to grasp the ways in which states challenge international law by using or creating institutional overlap for strategic purposes. When doing so, states shape their preferences and adopt their behavior against the backdrop of all overlapping institutions. This is of fundamental importance for international lawyers, because it challenges the integrity of international law. IR scholars, on the other hand, can learn from IL research on the endogenous dynamics of international law, in particular on legal ways to absorb conflict among overlapping sets of legal rules in the absence of a ‘final authority’. Due to the absence of central coordinating mechanisms, such forms of legal development are highly relevant for the endogenous dynamics of regime complexes over time. However, for two reasons, IR scholars are not well equipped to understand the tacit evolution of legal rules. First, their research has concentrated on the causes and consequences of international cooperation through formal agreements of international law. Second, they are predominantly focusing on how political actors exploit conflicts among international institutions. Thus, they lose sight of how political and legal actors try to mitigate interinstitutional conflict. As a result, IR scholars have not thoroughly examined if and how overlapping international institutions mutually

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Joseph Jupille, Walter Mattli and Duncan Snidal, Institutional Choice and Global Commerce (Cambridge University Press 2013); Julia Morse and Robert O. Keohane, ‘Contested Multilateralism’ (2014) 9(4) The Review of International Organizations 385. 4 Marc L. Busch, ‘Overlapping Institutions, Forum Shopping, and Dispute Settlement in International Trade’ (2007) 61(4) International Organization 735. 5 Laurence Helfer, ‘Regime Shifting in the Intellectual Property System’ (2009) 7(1) Perspectives on Politics 39. 6 Johannes Urpelainen and Thijs van de Graaf, ‘Your Place or Mine? Institutional Capture and the Creation of Overlapping International Institutions’ (2015) 45(4) British Journal of Political Science 799.

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adapt to each other.7 IL, in contrast, is familiar with the tacit emergence and evolution of legal rules and norms, particularly in the form of customary international law. It examines how the overall structure of the international legal system is affected by institutional overlap, in particular how its unity can be preserved or restored. Particularly those IR researchers interested in the management of institutional complexity should find legal mechanisms to preserve or restore the unity of the international legal system illuminating. All in all, a stronger inter-disciplinary dialogue promises to be fruitful, because both disciplines share three fundamental observations. First, IR and IL concur that, in a densely institutionalized international system, international institutions do not any more operate in isolation, but mutually influence each other. Second, they agree that the interaction of international institutions creates demand for inter-institutional coordination. Third, they explore different legal and political possibilities of decentralized coordination and agree that, for different reasons of practicality or normativity, decentralized coordination is preferable to hierarchical coordination. Thus, it comes as no surprise that some of the most influential contributions have been co-authored by international lawyers and IR-scholars.8 The chapter is structured as follows. First, we summarize the state of the art on the implications of the proliferation and interaction of international institutions in IR and IL. We examine the general conceptual approaches of IL and relate them to the central findings of IR research. Second, we conceptualize regime complexes as governance systems that yield structural governance effects which are independent of those of individual international institutions. In a nutshell: a regime complex is more than the sum of its parts. We show how regime complexes change international politics and challenge international law by inviting states to pit international institutions against each other. Third, we examine how the emergence of regime complexes as new governance systems influences the interaction of international law and international 7 But see Thomas Gehring and Benjamin Faude, ‘A Theory of Emerging Order Within Institutional Complexes: How Competition among Regulatory International Institutions Leads to Institutional Adaptation and Division of Labor’ (2014) 9(4) The Review of International Organizations 471; Benjamin Faude, Von Konkurrenz zu Arbeitsteilung. Komplexität und Dynamik im Zusammenspiel internationaler Institutionen (Campus 2015). 8 Raustiala and Victor (n 2); Eyal Benvenisti and George W. Downs, ‘The Empire’s New Clothes: Political Economy and the Fragmentation of International Law’ (2007) 6(2) Stanford Law Review 595.

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politics at different stages of the governance process. In particular, we point to political and legal responses to cross-institutional state action. We conclude with a plea for more interdisciplinary cooperation and identify research questions that are particularly suitable to further it. In sum, the chapter gives a comprehensive overview of the politico-legal research on the implications of institutional overlap in the absence of centralized coordination and offers the conceptual foundations to advance interdisciplinary collaboration on core questions of mutual interest.

2. THE STATE OF THE ART ON THE IMPLICATIONS OF INSTITUTIONAL DENSITY IN IR AND IL Several strands of the IR and IL literature take the phenomenon of multiple and partially overlapping international institutions as their analytical point of departure. However, international lawyers concentrate on structural questions of emerging order in a fragmented institutional setting, while IR scholars focus on the strategic behavior of actors. Within this division of labor, the legal debate centers on the notions of the ‘fragmentation of international law’,9 ‘global legal pluralism’,10 and ‘constitutional pluralism’.11,12 The IR discussion, on the other hand, targets, first and foremost, the analysis of the ‘institutional choice’ by 9 Gerhard Hafner, ‘Pros and Cons From Fragmentation of International Law’ (2004) 25 Michigan Journal of International Law 849; Andreas FischerLescano and Gunther Teubner, ‘Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law’ (2004) 25 Michigan Journal of International Law 999; Margaret A. Young, Regime Interaction in International Law: Facing Fragmentation (Cambridge University Press 2012). 10 Paul Schiff Berman, ‘A Pluralist Approach to International Law’ (2007) 32 Yale Journal of International Law 301; Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (Oxford University Press 2010); Paul Schiff Berman, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (Cambridge University Press 2012). 11 The term ‘constitutional pluralism’ is similar to what others call institutional pluralism. See Krisch (n 10) and Jonathan Kuyper, ‘The Democratic Potential of Systemic Pluralism’ (2014) 3(2) Global Constitutionalism 170, 174.. 12 Neil Walker, ‘The Idea of Constitutional Pluralism’ (2002) 65(3) The Modern Law Review 317; Mattias Kumm, ‘The Cosmopolitan Turn in Constitutionalism: On the Relationship between Constitutionalism in and beyond the State’ in Jeffrey L. Dunoff and Joel P. Trachtman (eds), Ruling the World?: Constitutionalism, International Law, and Global Governance (Cambridge University Press 2009).

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state actors,13 which includes ‘forum-shopping’,14 ‘regime-shifting’,15 and ‘competitive regime creation’;16 second, the interaction between two international institutions;17 and third, the emergence of regime complexes in various issue-areas of global governance.18 2.1 The Notion of Fragmentation If used by lawyers, the term ‘fragmentation of international law’ describes the overall structure of international law. It denotes the plurality of ‘international regulatory institutions with overlapping jurisdictions and ambiguous boundaries’.19 According to the International Law Commission, the term ‘fragmentation of international law’ refers to two phenomena and their consequences.20 First, it points to the absence of a ‘general legislative body’ on the international level. Second, it concerns the evolution of institution-specific secondary (procedural) legal rules to revise international agreements. It may be added that the international system lacks not only a general legislator, but also a single court of appeal. That is, unlike domestic settings, hierarchical coordination mechanisms to resolve inter-institutional tensions and conflicts are not available on the international level.21 Based on a lack of formal hierarchy among legal rules and courts, Fischer-Lescano and Teubner identify four kinds of problems that result from the fragmentation of international law: contradictions between individual decisions of international courts and tribunals, rule collisions, 13

Jupille, Mattli, and Snidal (n 3). Busch (n 4). 15 Helfer (n 5). 16 Christina J. Schneider and Johannes Urpelainen, ‘Distributional Conflict Between Powerful States and International Treaty Ratification’ (2013) 57(1) International Studies Quarterly 13; Urpelainen and van de Graaf (n 6). 17 Thomas Gehring and Sebastion Oberthür, ‘The Causal Mechanisms of Interaction between International Institutions’ (2009) 15(1) European Journal of International Relations 125. 18 Raustiala and Victor (n 2); Thomas Gehring and Benjamin Faude, ‘A Theory of Emerging Order Within Institutional Complexes: How Competition among Regulatory International Institutions Leads to Institutional Adaptation and Division of Labor’ (2014) 9(4) The Review of International Organizations 471. 19 Benvenisti and Downs (n 8) 595. 20 ILC, ‘Fragmentation of International Law: Difficulties Arising from The Diversification and Expansion of International Law’ (13 April 2006) UN Doc A/CN.4/L.682, 10. 21 Hafner (n 9) 854–5. 14

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inconsistencies between legal doctrines, and conflicts between legal principles.22 In sum, the concern within the ‘fragmentation camp’ is that its pluralistic structure threatens the ‘unity of the international legal system’.23 The notion of fragmentation was taken up by IR scholars.24 Biermann and co-authors see fragmentation as ‘an ubiquitous structural characteristic’ of the international system.25 Zelli and van Asselt call the ‘growing degree of fragmentation’ a ‘core institutional phenomenon and challenge’ as well as ‘an inherent structural characteristic’ of today’s international relations.26 However, in contrast to the encompassing conceptualization of fragmentation put forward by international lawyers, IR-researchers attach the notion of fragmentation to single issue-areas of international relations.27 This conceptual move allows Biermann and co-authors to conceptualize fragmentation as a gradual phenomenon which is more or less pronounced in different issue-areas of international relations28 and to differentiate further between different degrees and types of fragmentation (synergistic fragmentation, cooperative fragmentation and conflictive fragmentation). Thus, with regard to the notion of fragmentation, the central difference between IL and IR is that the former develops structural arguments that encompass the international system as a whole, while the latter focuses on overlapping institutions within single issue-areas. The less encompassing approach of IR-scholars can be seen as the intellectual heritage of ‘regime theory’ which serves as a theoretical tool to analyze the emergence and development of individual international institutions and which has been influencing institutionalist research since the 1980s.29

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Fischer-Lescano and Teubner (n 9). Hafner (n 9) 854. 24 Frank Biermann and others, ‘The Fragmentation of Global Governance Architectures: A Framework for Analysis’ (2009) 9(4) Global Environmental Politics 14; Fariborz Zelli and Harro van Asselt, ‘Introduction: The Institutional Fragmentation of Global Environmental Governance: Causes, Consequences, and Responses’ (2013) 13(3) Global Environmental Politics 1. 25 Biermann and others (n 24) 31. 26 Zelli and van Asselt (n 24) 1, 3. 27 ibid 5. 28 See also Robert O. Keohane and David G. Victor, ‘The Regime Complex for Climate Change’ (2011) 9(1) Perspectives on Politics 7. 29 Stephen D. Krasner, ‘Structural Causes and Regime Consequences’ (1982) 36(2) International Organization 185. 23

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2.2 ‘Global Constitutionalism’ and ‘Legal Pluralism’ as Structural Visions for a Fragmented Institutional Setting The international law community is predominantly examining whether and how order can or should emerge in a fragmented institutional setting and how the features of the emerging order can be described adequately. According to Nico Krisch, ‘two central structural visions’ for such a fragmented setting have been developed: ‘constitutionalism’ and ‘pluralism’.30 Let us consider each in turn. Jonathan Kuyper notes that ‘global constitutionalism emphasizes the increased density of world politics and the corresponding authority and legalization of those institutions’.31 More precisely, global constitutionalists depart from the premise ‘that international law’s various functional regimes are part of a larger system of general international law, so that gaps and incoherencies are addressed by implicit rules of hierarchy or conflict of laws’.32 What is more, they share the observation of a plurality of constitutional sources with each of them claiming to have the final authority.33 As Neil Walker puts it: ‘The units are no longer isolated, constitutionally self-sufficient monads.’34 Such a setting of overlapping constitutional orders and competing claims to final authority gives rise to questions of ‘inter-constitutional coordination’. In other words, political entities need not only constitutionalize their internal, but also their external relations. Thus, constitutional quality is located also in the ‘structural relationships’ between different sites of constitutional authority.35 It is thus argued that providing mechanisms which coordinate the various components of the international legal system is an important constitutional element in a world of multiple constitutional sources.36 Jeffrey Dunoff and Joel Trachtman state: ‘One of the most important functions that international constitutionalization can play is to provide mechanisms for addressing how different constitutions relate to one another and how they can be coordinated.’37 Thus, constitutionalization is 30

Krisch (n 10) 5. Kuyper (n 11). 32 Jeffrey L. Dunoff and Joel P. Trachtman, Ruling the World?: Constitutionalism, International Law, and Global Governance (Cambridge University Press 2009) 31. 33 See, for example, Neil Walker (n 12); Dunoff and Trachtman (n 32) 30–2. 34 Walker (n 12) 355. 35 ibid 340. 36 Dunoff and Trachtman (n 32) 31. 37 ibid 32. 31

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seen as an appropriate response to the fragmentation of constitutional sources.38 It enables the introduction of order, coherence and unity into a fragmented and horizontal institutional setting.39 Contrary to traditional constitutionalists, who see the supremacy of constitutional law over ordinary law as a core feature of a constitutionalized institutional structure, constitutional pluralists adopt the position that inter-institutional conflict in international law can, by and large, not be resolved by the introduction of formally superior rules or institutions. In contrast to traditional constitutionalists who emphasize the superiority of a uniform and overarching constitutional framework which is able to coordinate the inter-institutional relationships,40 constitutional pluralists therefore argue that inter-constitutional coordination can and should take place in non-hierarchical forms. They state that mediation among different constitutional regimes requires either a ‘tertiary rule’ that would determine the relative domains of applicability of these constitutional regimes, or a judicial dialogue that produces consensual ‘comity’ between constitutional regimes. Dunoff and Trachtman conclude that constitutional pluralism ‘focus[es] more on mechanisms to channel and structure relations between different legal regimes than on the imposition of hierarchical order among various regimes’.41 In this notion, constitutionalization can be understood as a certain type of non-hierarchical coordination among plural constitutional sites which is based on legal reasoning upon constitutional values.42 Constitutional pluralists agree that principles reflecting fundamental constitutional or republican values may serve as a basis for coordinating overlapping legal orders in the absence of a hierarchical coordinating instance.43

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Walker (n 12). Dunoff and Trachtman (n 32) 34; Jan Klabbers, ‘Setting the Scene’ in Jan Klabbers, Anne Peters and Geir Ulfstein (eds), The Constitutionalization of International Law (Oxford University Press 2009). 40 Compare Bardo Fassbender, ‘Rediscovering a Forgotten Constitution: Note on the Place of the UN Charter in the International Legal Order’ in Jeffrey L. Dunoff and Joel P. Trachtman (eds), Ruling The World?: Constitutionalism, International Law, and Global Governance (Oxford University Press 2009). 41 Dunoff and Trachtman (n 32) 35. 42 Kumm (n 12); Krisch (n 10) ch 3. 43 Mattias Kumm, ‘Beyond Golf Clubs and the Judicialization of Politics: Why Europe Has a Constitution’ (2006) 54 American Journal of Comparative Law 505; Kumm (n 12). 39

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Global legal pluralists44 see overlapping jurisdictions as ‘a source of innovation’, ‘a site of discourse among multiple community affiliations’ and therefore as ‘desirable’.45 They hold that by trying to translate the concept of constitutionalism from the national to the international level, it runs the risk of being sold out. Instead, global legal pluralists argue that a purely pluralist framework, which does not seek to construct an overarching legal framework based on constitutional values, is more appropriate to cope with the difficulties of a globalized as well as institutionally and socially fragmented world. This is justified by ‘considerable strengths in terms of its adaptability, of the space for contestation it opens up, and of the checks and balances between different polities that it creates by leaving the relationships between legal systems undefined’.46 Global legal pluralists rely on a ‘heterarchical interaction of the various layers of law’, in which ‘the relationship of the parts of the overall order … remains open’.47 They try to identify procedural mechanisms that coordinate different political authorities, without insisting, like constitutional pluralists, that these coordinating mechanisms should reflect certain values.48 Fischer-Lescano’s and Teubner’s systemstheoretic approach to global legal pluralism, to take one example, deems only a ‘weak normative compatibility’ possible, because, in their thinking, the colliding legal regimes merely reproduce the colliding rationalities of different societal sectors, that is, deep-rooted societal conflicts.49 Such a ‘weak normative compatibility’ can, in the absence of a hierarchical coordination instance, only be achieved by a ‘loose coupling’ of international institutions. This is realized in a decentralized manner, based upon mutual observation, and relies on procedural rather than substantive norms.50 44 Legal pluralism was developed by legal anthropologists to capture the interplay of normative orders within colonial and postcolonial domestic societies. More recently, it was taken up by international lawyers to get an analytical handle on the fragmentation of international law. Generally speaking, it describes a situation in which at least two legal systems coexist within the same social space. See Ralf Michaels, ‘Global Legal Pluralism’ (2009) 5(1) Annual Review of Law and Social Sciences 243. 45 Berman (n 10) 321. 46 Krisch (n 10) 103; see also Berman (n 10). 47 Krisch (n 10) 23. 48 See Berman (n 10). 49 Fischer-Lescano and Teubner (n 9). 50 See also Gunther Teubner, ‘Global Bukowina: Legal Pluralism in the World Society’ in Gunther Teubner (ed), Global Law Without a State (Dartmouth 1997).

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To sum up, global legal pluralists argue that the pluralist structure of international law induces flexible coordination of overlapping jurisdictions by decentralized mechanisms, which are not grounded in substantive norms or values. They see this way of tackling the fragmentation of international law as more promising to ‘stabilize cooperation’ than hierarchical ways of coordination.51 This is due to two reasons. First, decentralized coordination preserves opportunities for contesting established institutional structures and for adapting institutions to exogenous change.52 Thus it allows for checks and balances on the international level and therefore serves as an ‘accountability mechanism’ or at least as a functional equivalent thereof.53 It is suggested that the room for contestation and the adaptability of normative structures that a pluralist structure provides is conducive to diminishing the ‘democratic deficit’ from which global governance suffers.54 Second, an agreement on substantive meta-norms is considered to be practically impossible and even unjustifiable in an institutionally and socially highly diverse setting. Pluralists therefore refrain from suggesting a hierarchy of norms or values. It rather relies on the mutual accommodation of overlapping legal orders.55 In a nutshell, international lawyers focus on structural questions of inter-institutional coordination. In doing so, they turn a blind eye on the (strategic) behavior of state and non-state actors in a fragmented institutional setting. 2.3 Cross-Institutional Strategic Action as the Domain of International Relations For decades, IR scholars have conceptualized international institutions as separate entities operating in isolation from each other.56 However, institutional proliferation57 and high ‘regime density’58 have made it virtually impossible to separate international institutions from each other 51

Krisch (n 10) 238. Kuyper (n 11). 53 Krisch (n 10). 54 Kuyper (n 11). 55 Berman (n 10); Krisch (n 10). 56 Krasner (n 29); Robert O. Keohane, After Hegemony: Cooperation and Discord in the World Political Economy (Princeton University Press 1984). 57 Kal Raustiala, ‘Institutional Proliferation and the International Legal Order’ in Jeffrey L. Dunoff and Mark A. Pollack (eds), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (Cambridge University Press 2013). 52

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for analytical purposes. Thus, to capture the fuzziness of institutional boundaries and the interaction between separately established international institutions, Kal Raustiala and David Victor coined the term ‘regime complex’. A regime complex is defined as ‘an array of partially overlapping and nonhierarchical institutions governing a particular issuearea’.59 Although other definitions differ somewhat, essentially all authors agree that a regime complex is composed of a set of institutions with overlapping jurisdictions, features a horizontal structure, and governs a common issue area.60 These three essential characteristics imply that a regime complex ranks on a lower level of societal organization than international lawyers’ encompassing notion of the fragmentation of international law. IR-scholars draw particular attention to cross-institutional strategizing and opportunities for ‘institutional choice’ within regime complexes. For actors operating ‘in the context of an already institutionalized status quo’, three cross-institutional types of strategic action have been identified.61 First, actors may resort to forum-shopping in order to bring about a favourable decision in a single issue or question of their interest.62 Second, they may conduct regime-shifting in order to ‘relocate rulemaking processes to international venues whose mandates and priorities favour their concerns and interests’.63 Third, a group of states may engage in competitive regime creation. This means to challenge the governance authority of an existing institution which is perceived to be biased against the interests of a group of states and which has resisted efforts to induce institutional change by creating an institutional competitor.64 The latter two strategies are subsumed under the label of contested multilateralism which refers to situations in which ‘multilateral institutions are challenged through the use of other multilateral institutions’.65 58 Oran R. Young, ‘Institutional Linkages in International Society: Polar Perspectives’ (1996) 2(1) Global Governance 1. 59 Raustialia and Victor (n 2) 279. 60 Karen Alter and Sophie Meunier, ‘The Politics of International Regime Complexity’ (2009) 7(1) Perspectives on Politics 13; Keohane and Victor (n 28); Amandine Orsini, Jean-Fréderic Morin and Oran Young, ‘Regime Complexes: A Buzz, a Boom, or a Boost for Global Governance?’ (2013) 19(1) Global Governance 27. 61 Jupille, Mattli, and Snidal (n 3). 62 Busch (n 4). 63 Helfer (n 5). 64 Schneider and Urpelainen (n 16); Urpelainen and van de Graaf (n 6). 65 Morse and Keohane (n 3) 386.

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The availability of these new strategic options means that the fragmentation of international law generates new forms of international politics. A debate is emerging on the implications of these cross-institutional possibilities for strategic action for institutionalized cooperation among states: does the possibility of cross-institutional action enable or impede inter-state cooperation? One camp assumes that states unrestrictedly and permanently exploit the possibilities of institutional choice to pursue their parochial interests. In doing so, they gradually weaken international commitments, impede international cooperation, and undermine the effectiveness of global governance arrangements. As a result, authors from this camp expect ‘gridlock’66 and even the return of a purely anarchical international system which is dominated by great powers that pit international institutions against each other.67 Ironically, so the argument goes in a nutshell, the proliferation of international institutions and the emergence of institutional overlap undermines international institutions’ potential to facilitate inter-state cooperation. The other camp in this debate argues that institutional overlap gives rise to interplay management,68 orchestration,69 policy coherence70 and inter-institutional order.71 The common denominator of these arguments is that states are assumed to be interested in problem-solving international institutions. Thus, states are not necessarily exploiting their possibilities of institutional choice in ways that undermine inter-state cooperation. Rather, they are interested in institutional complementarity and behave accordingly. That is, they take the cross-institutional effects of their decisions

66

Thomas Hale, David Held and Kevin Young, Gridlock: Why Global Cooperation is Failing When We Need it Most (Polity Press 2013). 67 Benvenisti and Downs (n 8); Daniel Drezner, ‘The Power and Peril of International Regime Complexity’ (2009) 7(1) Perspectives on Politics 65; Daniel Drezner, ‘The Tragedy Of The Global Institutional Commons’ in Martha Finnemore and Judith Goldstein (eds), Back to Basics: State Power in a Contemporary World (Oxford University Press 2013). 68 Sebastian Oberthür and Olav Schram Stokke (eds), Managing Institutional Complexity: Regime Interplay and Global Environmental Change (MIT Press 2011). 69 Kenneth W. Abbott and others, International Organizations as Orchestrators (Cambridge University Press 2015). 70 Orsini, Morin, and Young (n 60). 71 Gehring and Faude (n 18).

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on cooperation into account. As a result, cross-institutional action enables, rather than impedes, international cooperation. Under certain conditions, it induces mutually complementary processes of institutional adaptation which give rise to an inter-institutional division of labor.72 The theoretical arguments from both camps are deductively derived and empirically illustrated only by non-representative case studies. However, some authors communicate the impression that regulatory conflict is increasingly dominating global governance.73 It bears noting that this impression may well be due to a severe selection bias in the empirical analysis of the implications of institutional overlap. Because they are puzzling to rationalist approaches to international institutions, the conflictual aspects of institutional overlap are empirically much better examined than the processes of mutually complementary institutional accommodation. All in all, whether cross-institutional action is impeding or enabling international cooperation is not answered satisfactorily on an empirical basis. This constitutes a major lacuna in current scholarship on institutional overlap and an important area for future inter-disciplinary research.

3. CATALYZING INTERDISCIPLINARY RESEARCH: REGIME COMPLEXES AS GOVERNANCE SYSTEMS This section conceptualizes regime complex as governance systems (3.1) within which order may or may not emerge (3.2). This conceptual move allows relating IR scholarship on agency to IL research on structure. It thus provides a conceptual basis for fruitful interdisciplinary research on the implications of institutional overlap. 3.1 How Regime Complexes Influence Global Governance We suggest conceptualizing a regime complex as an entity which has its own existence. Thus, a regime complex is conceptualized as a system of continuously interacting international institutions with overlapping memberships and issue-areas. This conceptualization conforms to the state of the art.74 What is more, conceptualizing a regime complex explicitly as a 72

ibid. Robert O. Keohane, ‘Twenty Years of Institutional Liberalism’ (2012) 26(2) International Relations 125–38; Hale, Held and Young (n 66); Morse and Keohane (n 3). 74 Raustialia and Victor (n 2) 279; Keohane and Victor (n 28) 7, 8. 73

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governance system allows grasping its systemic effects on the overlapping institutions and their members. Thus, it becomes discernible that regime complexes hold the potential to establish social order among overlapping institutions and their multiple members, that is, those states that are members of several or all institutions that make up the complex. This conceptualization, therefore, bridges the divide between IR scholars and international lawyers. Functional overlap among separately established international institutions is a prerequisite for the emergence of systemic effects. It implies that the memberships and the issue-areas of two or more international institutions overlap. Functional overlap is the result of purposive action, if actors establish a new institution to challenge the regulatory dominance of an existing one,75 or if they deliberately shift their regulatory activities on a specific matter from one institution to another.76 It is the unintended by-product of purposive action if it results from the expansion of an international institution’s regulatory scope, which is not driven by the intention to create ‘strategic inconsistency’.77 Regulatory overlap, defined as varying prescriptions and proscriptions to guide the same behavior of state actors, constitutes a specific form of functional overlap. Regime complexes produce two important effects. First, they induce the multiple members to shape their preferences and to adopt their decisions not against the backdrop of a single international institution, but against the backdrop of sets of overlapping international institutions. This broader institutional environment provides them with new opportunities for strategic action (see above). At different stages of the governance process, states can select among overlapping institutions to pursue their interests. They can decide where to submit an initiative for institutional change and which of two or more contradicting rule-sets to implement. If cooperation within the overlapping institutions is judicialized, they can even select among dispute settlement mechanisms when they intend to file a complaint against another state.78

75 Schneider and Urpelainen (n 16); Thijs van de Graaf, ‘Fragmentation in Global Energy Governance: Explaining the Creation of Irena’ (2013) 13(3) Global Environmental Politics 14. 76 John Braithwaite and Peter Drahos, Global Business Regulation (Cambridge University Press 2000) 564–77; Helfer (n 5). 77 Raustiala and Victor (n 2) 301. 78 Busch (n 4).

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Second, regime complexes establish competition for governance functions and related resources among functionally overlapping institutions.79 International institutions are not self-sufficient, but depend on external resources, such as competencies, money and immaterial support by relevant actors. In exchange for the supply of these external resources, international institutions fulfill governance functions for their members. If these governance functions are not demanded any more – think of NATO and its situation at the end of the Cold War – or are better fulfilled by other international institutions – think of the competition between the IMF and the World Bank – international institutions risk being deprived of vital resources unless they succeed in acquiring new governance functions.80 Thus, the elemental institutions of a regime complex compete against each other for the governance functions that are located in the area of functional overlap and for the resources that are attached to the exercise of these governance functions.81 Competition among elemental institutions may be fueled by diverging governance objectives (for example, trade liberalization vs. environmental protection or international security vs. human rights protection). We may expect the effects of inter-institutional competition to vary across issue-areas. In human rights, for example, competition seems to strengthen human rights litigation and the protection of human rights in general, because individuals enjoy a variety of legal avenues to protect their rights. In trade, however, competition tends to undermine the ability of institutions to fulfill their basic function of shaping states’ normative expectations and guiding their behavior, because contradictory and partially incompatible rules increase the difficulty of navigating rules of origin and tariff levels, and the possibilities for institutional choice on the part of governmental actors and interest groups when negotiating on trade liberalization.82 79 See Stephanie C. Hofmann, ‘Overlapping Institutions in the Realm of International Security: The Case of NATO and ESDP’ (2009) 7(1) Perspectives on Politics 45. 80 See Alexander Cooley and James Ron, ‘The NGO Scramble: Organizational Insecurity and the Political Economy of Transnational Action’ (2002) 27(1) International Security 5 on competition between NGOs. 81 Alter and Meunier (n 60) 19–20; compare also Benvenisti and Downs (n 8); Bruno S. Frey, ‘Outside and Inside Competition for International Organizations – From Analysis to Innovations’ (2008) 3(4) The Review of International Organizations 335. 82 Christina L. Davis, ‘Overlapping Institutions in Trade Policy’ (2009) 7(1) Perspectives on Politics 25.

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3.1.1 The systemic effect: lasting conflict or gradual adaptation? Two systemic effects are possible: enduring inter-institutional competition or the emergence of divided labor among the competing institutions as a result of gradual institutional adaptation. If states fail to accommodate their diverse interests on institutional accommodation, inter-institutional competition endures. If they manage to accommodate their interests, some form of divided labor among the overlapping institutions emerges. Three forms of divided labor are possible. First, the area of overlap may come to be dominated by one elemental institution, while other institutions implicitly or explicitly terminate their governance activities in this area and concentrate on other governance tasks (‘stratificatory differentiation’). Second, the governance of the area of overlap can be divided into different parts, each of which is governed by a single elemental institution (‘sectorial differentiation’). Third, the area of overlap may be co-governed by all elemental institutions in an implicitly or explicitly organized way (‘functional differentiation’). A division of labor establishes social order within a regime complex.83 It tames inter-institutional competition and reflects as well as stabilizes collective expectations about how the elemental institutions define their governance functions. It spells out the governance functions of the elemental institutions and thus constrains their governance activities in a way that makes it impossible to pit them against each other. The elemental institutions are therefore coordinated by the division of labor. An inter-institutional division of labor can emerge either spontaneously from repeated interaction among the elemental institutions84 or it can be deliberately designed by actors. A spontaneously emerging division of labor is less demanding in terms of collective action. It neither requires a collective decision mechanism among the relevant institutions, nor does it create severe implementation problems.85 Like customary international law, a spontaneously evolving division of labor reflects patterns of behavior.86 Thus, it is the most widespread form of inter-institutional coordination on the international level. There are three pathways of inter-institutional adjustment in the absence of a deliberate design. First, mutually complementary decisions of secretariats and dispute settlement 83

Gehring and Faude (n 18). See Raustiala and Victor (n 2) 295–305. 85 Robert Sugden, ‘Spontaneous Order’ (1989) 3(4) The Journal of Economic Perspectives 85. 86 Robert Axelrod, The Evolution of Cooperation (Basic Books 1984); Sugden (n 85). 84

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mechanisms may lead to mutually complementary institutional adaptation. Second, the decisions of the conferences of the parties, for instance, to amend the relevant international treaties, may yield a division of labor. Third, the adaptation of governance functions may also occur through patterned activities of individual actors, for example, by choosing among competing sets of regulation at the implementation stage. For example, despite a severe distributional conflict, a division of labor has emerged spontaneously between the WTO and the Cartagena Protocol on Biosafety in the regime complex on international trade in genetically modified organisms (GMOs). In the absence of explicit coordination between these institutions, it is based upon the careful crafting of the Protocol’s rules so as to minimize conflict with WTO rules, on the ambiguous decision of WTO dispute settlement system in the biotech case87 and on implementation patterns of numerous contracting parties of both institutions.88 Alternatively, a division of labor may be established by deliberate inter-institutional coordination. Yet, this presupposes that the respective institutions (rather than their members) are authorized to negotiate, and subsequently to implement, an inter-institutional agreement. For example, in the operation of its multilateral fund, the Montreal Protocol has established a number of inter-institutional agreements, inter alia with the World Bank, the United Nations Environment Program (UNEP) and the United Nations Development Program (UNDP).89 In general, however, the members of an international institution are hesitant to delegate this competence to international institutions, because the conclusion of binding inter-institutional agreements potentially interferes with established rights and obligations. In the enduring conflict over environmentally motivated trade restrictions, to take one prominent example, neither the WTO nor the organizational apparatuses of overlapping multilateral environmental agreements can negotiate a settlement of, because they lack the competence to do so. Finally, a division of labor might be established through a separately negotiated super-institution agreed upon by the members of the elemental institutions. Characteristic for this form of inter-institutional coordination 87 WTO, European Communities – Measures Affecting the Approval and Marketing of Biotech Products – Reports of the Panel (29 September 2006) WT/DS291/R, WT/DS292/R, and WT/DS293/R. 88 See Gehring and Faude (n 18). 89 Elisabeth DeSombre and Joanne Kauffman, ‘The Montreal Protocol Fund: Partial Success’ in Robert O. Keohane and Marc A. Levy (eds), Institutions for Environmental Aid (MIT Press 1996).

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is that the relevant actors act separately within the super-institution and within either of the elemental institutions. Even though decision-making remains fully under the control of the actors involved, this is a particularly demanding form of inter-institutional coordination, because it inevitably subordinates the elemental institutions to a separately established super-institution. For example, the agreement on the European Economic Area relates the European Free Trade Area to the European Union by defining mutual obligations, coordination rules and procedures for solving conflicts.90 3.2 Implications for the Governance Process The introductory chapter to this Handbook divides the governance process on the international level into five stages: rule-making, interpretation, decision-making, implementation and legal change. The existence of a regime complex affects all these stages of the governance process, because – at all of these stages – the multiple members of overlapping international institutions shape their preferences and adopt their decisions not based upon the incentive structure of one institution, but based upon the incentive structure of the regime complex.91 Therefore, their behavior affects the normative development and governance effectiveness of all overlapping institutions at the same time. This renders the governance process significantly more complex. In the next section, we focus on the effects of a regime complex on rule-making and legal change on the one hand and on rule implementation and interpretation on the other hand.

4. RULE MAKING AND LEGAL CHANGE WITHIN REGIME COMPLEXES A regime complex has two major effects on international rule-making and legal change: it gives states possibilities of institutional choice. At the same time, existing institutionalized rules constrain the development of new ones. Let us consider both effects. States that seek to develop new international rules on a particular matter may choose one of the overlapping institutions for that purpose. 90 Cédric Dupont, ‘The Failure of the Nest-Best Solution: EC-EFTA Institutional Relationships and the European Economic Area’ in Vinod K. Aggarwal (ed), Institutional Designs for a Complex World: Bargaining, Linkages, and Nesting (Cornell University Press 1998). 91 See Raustiala and Victor (n 2).

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Their institutional choice can be expected to depend on the characteristics of the negotiation environments provided by the overlapping institutions. Institutions differ in particular with regard to the scope of their membership (most importantly, regional vs. global), their general policy direction, and their opportunities for issue-linkage. It is well-known that these differences exert a strong influence on the outcomes of institutionalized bargaining.92 Thus, states choose the institution that promises to deliver rules that come closest to their interests when launching an initiative to develop new international rules. A regime complex provides state actors with new opportunities for legal change.93 If a group of actors is unsatisfied with the substantive or procedural rules of an existing ‘focal institution’, it can pursue ‘regimeshifting’, seeking to relocate the rulemaking process to ‘international venues whose mandates and priorities favor their concerns and interests’.94 It can also pursue ‘competitive regime creation’ and challenge the governance authority of an existing institution by creating a new institution, which overlaps with the existing one.95 Thus, the possibility of choosing among institutions within regime complexes can be used to deliberately create ‘strategic inconsistency’.96 In such situations, multilateral institutions are challenged through the use of other multilateral institutions.97 ‘Regime shifting’ and ‘competitive regime creation’ allow actors to overcome veto positions and the resulting inertia within one of the elemental institutions.98 They are ultimately pursued to induce institutional change into the ‘focal institution’ of a specific matter of international cooperation. In both cases, actors seek to shift governance activities from an established institution to an alternative one. A prerequisite for doing so is that the group of actors possesses the capacity for collective action outside of the established institutional framework. In several cases, international rulemaking has been affected significantly by the exercise of ‘regime shifting’ or ‘competitive regime creation’. In a prominent case of regime-shifting, the industrialized countries moved the regulation of intellectual property rights from the World Intellectual Property Rights Organization (WIPO) to the World 92

James K. Sebenius, ‘Negotiation Arithmetic: Adding and Subtracting Issues and Parties’ (1983) 37(2) International Organization 281. 93 See Jupille, Mattli, and Snidal (n 3). 94 Helfer (n 5) 39. 95 Schneider and Urpelainen (n 16); Urpelainen and van de Graaf (n 6). 96 Raustiala and Victor (n 2) 298, 301, 305–6. 97 Morse and Keohane (n 3) 386. 98 van de Graaf (n 75).

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Trade Organization (WTO) and concluded the TRIPS Agreement. Linking intellectual property rights protection to international trade resulted in a set of rules that strengthened the international protection of intellectual property.99 In a prominent case of ‘competitive regime creation’, a coalition among developing and European countries attracted considerable support to adopt the Cartagena Protocol within the Convention on Biological Diversity. The protocol establishes restrictive regulation on international trade in genetically modified organisms and therefore counters the liberal regulatory approach of the WTO.100 Likewise, African countries used ‘competitive regime creation’ and established the regional Bamako Convention banning the transfer of hazardous wastes into Africa, when an agreement on the ban under the global Basel Convention was blocked by industrialized countries.101 And a subset of the then EC member states established the Schengen regime as an institution that regulates the abolition of border checks among member states and that introduces common security measures, at a time when an agreement within the then EC was not possible.102 This case is a hybrid between regime shifting and competitive regime creation. These examples show that regime complexes open up space for contesting institutional dominance and therefore facilitate the change of international legal rules. In all four cases, institutional inertia was overcome and international rule-making was facilitated either by employing alternative international institutions or by creating new ones which provide more suitable negotiation environments. Thus, regime complexes help to overcome the status quo bias which is inherent in international institutions.

99

Laurence R. Helfer, ‘Regime Shifting: The TRIPs Agreement and New Dynamics of International Intellectual Property Lawmaking’ (2004) 29(1) The Yale Journal of International Law 1. 100 Sebastian Oberthür and Thomas Gehring (eds), Institutional Interaction in Global Environmental Governance: Synergy and Conflict among International and EU Policies (MIT Press 2006). 101 Jennifer Clapp, ‘Africa, NGOs, and the International Toxic Waste Trade’ (1994) 3(2) The Journal of Environment and Development 17. 102 Thomas Gehring, ‘Die Politik des koordinierten Alleingangs: Schengen und die Abschaffung der Personenkontrollen an den Binnengrenzen der Europäischen Union‘ (1998) 5(1) Zeitschrift für Internationale Beziehungen 43.

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However, when exploiting their possibilities of ‘institutional choice’, states are constrained by their interest in the functionality of all institutions to which they are party. The existence of a regime complex is likely to constrain their choice when they negotiate new international rules. The multiple members of overlapping institutions typically have mixed motives. On the one hand, they are inclined to exploit existing opportunities of ‘institutional choice’ to pursue their parochial interests. They may even gain an interest in preserving these opportunities to circumvent costly obligations.103 On the other hand, they may also be assumed to have an interest in the collective goods produced by the overlapping institutions. Hence, multiple members typically face a Prisoner’s Dilemma situation: whereas they might seek to circumvent costly obligations in one way or the other, they also have an interest in preserving the functionality of the elemental institutions. These ‘mixed motives’ generate a demand for some kind of institutional accommodation. There is plenty of evidence that states seek to make new international rules compatible with already existing international regulation. Even though they are powerful greenhouse gases, the Kyoto Protocol does not address the regulation of chlorofluorocarbons (CFCs), because they are already regulated under the Montreal Protocol.104 WTO obligations not to discriminate against imported goods according to the methods by which they have been produced render it difficult for its members to adopt trade-restrictive measures within international environmental regimes or the International Labor Organization (ILO).105 As a result, the UN Framework Convention on Climate Change stipulates that ‘the Parties should cooperate to promote a supportive and open international economic system. Measures taken to combat climate change, including unilateral ones, should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade.’106 The Kyoto Protocol states that parties ‘shall strive to implement policies and measures under this Article in such a way as to minimize … effects on 103

See Benvenisti and Downs (n 8); Drezner (n 67). Oberthür and Stokke (n 68). 105 Thomas Gehring, ‘The Emerging Governance Structure on Trade and the Environment: From Disruption to Division of Labor’ in Sebastian Oberthür und Olav Schram Stokke (eds), Managing Institutional Complexity: Regime Interplay and Global Environmental Change (MIT Press 2011). 106 UN Framework Convention on Climate Change (adopted 1992, entered into force 21 March 1994) 1771 UNTS 107, art 3.5. 104

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international trade’.107 On a more general level, states have frequently designed trade-related enforcement measures in ways that the detrimental effects on world trade are minimized. The Montreal Protocol on Substances that Deplete the Ozone Layer envisages restrictions of trade in certain goods with non-member states108 to provide incentives for states to join the Protocol109 and to avoid the transfer of production facilities to non-member states. To bring it somewhat in line with the WTO obligations and to preclude undue discrimination of non-member states, countries behaving like complying member states may apply for exemption from the restriction. The International Commission for the Conservation of Atlantic Tunas (ICCAT) applies its trade restrictions equally prudently.110 All in all, this empirical evidence suggests that timing and sequence play a role in regime complexity. The institutions that make up the overlapping reality come about at different times: trade institutions precede environmental institutions. If the sequence would have been different, the institutional structure of the complex may be expected to look different.111 In sum, regime complexes allow states to exploit their possibilities of institutional choice and at the same time constrain the development of new rules. The already mentioned example of the international regulation of the protection of intellectual property illustrates this: when the industrialized countries succeeded in moving the elaboration of standards for the protection of international property rights from WIPO to the WTO, they did not abandon WIPO.112 To the contrary, the TRIPS accord incorporates previously existing WIPO rules and partially complements them with additional or more stringent obligations. It repeatedly 107

Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 1997, entered into force 16 February 2005) 37 ILM 22, art 2.3. 108 Jacob Werksman, ‘Compliance and Transition: Russia’s Non-Compliance Tests the Ozone Regime’ (1996) 96(2) Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 750. 109 Richard E. Benedick, Ozone Diplomacy: New Directions in Safeguarding the Planet (2nd edn, Harvard University Press 1995) 91–2. 110 See Alice Palmer, Beatrice Chaytor and Jacob Werksman, ‘Interaction between the World Trade Organization and International Environmental Regimes’ in Sebastian Oberthür and Thomas Gehring (eds), Institutional Interaction in Global Environmental Governance: Synergy and Conflict Among International and EU Policies (MIT Press 2006) 195–200. 111 See Orfeo Fioretos, ‘Historical Institutionalism in International Relations’ (2011) 65(2) International Organization 367 for a discussion of historical institutionalism in IR. 112 Helfer (n 99) 25.

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addresses the relationship between the WTO and WIPO and requests the TRIPS Council to establish appropriate arrangements for cooperation and to cooperate with WIPO. 4.1 Implementation and Interpretation of International Legal Rules Within Regime Complexes Regime complexes change the patterns of implementation and interpretation of international legal rules. Notwithstanding what has been said in the last section, we can expect ambiguities and even contradictions, if overlapping sets of rules are molded within different elemental institutions,113 because different negotiation environments lead to different outcomes.114 These ambiguities and contradictions have to be dealt with at the implementation stage. As a result, we may expect the reinterpretation of rules over time. If overlapping institutions do not unambiguously prescribe or proscribe behavior, the concrete ways of implementing those prescriptions and proscriptions affect the governance effectiveness of all overlapping institutions.115 The member states of overlapping institutions determine their implementation behavior against the backdrop of the ambiguous and potentially contradictory obligations of all overlapping institutions.116 Because they can choose which of the overlapping rule sets to follow and which one to ignore, actors enjoy an enlarged wiggle room. They may either clearly prioritize one rule set over another one or they may seek to implement the overlapping rules in a way that minimizes the detrimental effects on the effectiveness of all overlapping institutions. The patterns of implementing ambiguous or contradictory rule sets affect the meaning of international legal rules. Similar implementation behavior of many contracting states will produce a de facto reinterpretation of overlapping rules. If, for example, many actors prioritize the implementation of one rule set over another, the former begins to dominate the area of regulatory overlap, while the relevance of the latter within this area diminishes. Consider, for instance, the effect of several multilateral environmental agreements (MEAs) with trade restrictions on the application and interpretation of GATT/WTO disciplines. Some MEAs expressly aim to restrict those aspects of international trade which 113

Raustiala and Victor (n 2) 300–2. Sebenius (n 92). 115 See Gehring and Oberthür (n 17) on the causal mechanism of ‘Behavioral Interaction’. 116 Raustiala and Victor (n 2) 303–5. 114

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are problematic from an environmental perspective. For example, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) requires member states to ban or restrict trade in certain species, trade in certain protected species from certain habitats or countries of origin, and trade with countries that do not comply with the documentation requirements and other policy measures.117 Similarly, the Basel Convention prohibits trade in hazardous wastes between member states and non-member states, as well as, upon a decision of the Conference of the Parties, between OECD countries and non-OECD countries.118 Other MEAs, like the Montreal Protocol and ICCAT, put in place trade sanctions and limited boycotts against non-compliant member states and/or against non-members of the regime in order to enforce their obligations. All these environmentally motivated trade restrictions seem to violate a fundamental non-discrimination obligation of the WTO, the most favored nations (MFN) principle, because they require member states to discriminate between like products depending on the country of origin. However, there is no evidence that the implementation of such commitments, even if formulated as formally unbinding recommendations, is seriously hampered by the legal rules of the world trade system.119 The implementation of the clearly formulated issue-specific trade restrictions has never been formally challenged under the WTO dispute settlement system, possibly because they provide much less room for individual interpretation than the broadly formulated GATT nondiscrimination clauses or the opaque environmental exemptions under GATT Article XX.120 As a consequence, they acquire an informal lex specialis function, introducing issue-specific and clearly defined exemptions to the more general WTO obligations.121

117 Peter H. Sand, ‘Whither CITES? The Evolution of a Treaty Regime in the Borderland of Trade and Environment’ (1997) 8(1) European Journal of International Law 29. 118 Katharina Kummer, International Management of Hazardous Wastes: The Basel Convention and Related Legal Rules (Oxford University Press 1995). 119 Brack, D., ‘Environmental Treaties and Trade: Multilateral Environmental Agreements and the Multilateral Trading System’ in G.P. Sampson and W.B. Chambers (eds), Trade, Environment, and the Millennium (2nd edn, UN University Press 2002), 337. 120 General Agreement on Tariffs and Trade (entered into force 1 January 1947) 55 UNTS 194, art XX. 121 Gehring (n 105).

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4.2 Cui Bono? A small group of authors tackles the normative implications of regime complexes by asking which states benefit from regime complexes. This question has provoked different answers. Some hold that regime complexes make the most powerful states in the international system even stronger.122 Three reasons are given. First, it enables them to opportunistically break international rules without seriously jeopardizing the system. Second, it tends to prevent ‘cross-issue coalitions’ among weaker actors which have more diverse preferences than the powerful. Third, only the rich states possess the level of material resources and expertise required to navigate successfully the overlapping jurisdictions of international institutions, which is a prerequisite for successful ‘institutional choice’. In this perspective, regime complexes are seen as yet another instrument of the powerful to suppress the powerless. A different perspective emphasizes that regime complexes enhance the ability of weaker actors to turn to more suitable venues in order to enhance their bargaining position and reframe discourses. They may even provide particularly facilitative conditions for democratizing the international system.123 As Kuyper summarizes: ‘In the absence of an overarching framework to settle jurisdictional battles or prescribe common norms, institutional competition and forum shopping offers weaker actors a chance to counter established power blocs as part of a broader strategy for democratic contestation.’124 In a similar vein, Krisch argues that regime complexity privileges weaker actors, because it allows them to contest ‘institutionalized dominance’.125 Empirically, the cross-institutional opportunities for strategic action are exploited not only by the well-endowed and powerful states from the ‘Global North’, but also by much less well-endowed countries from the ‘Global South’.126 The latter, for example, used the WHO, FAO and CBD to counter the increased protection of intellectual property rights that resulted from the adoption of the TRIPS-Agreement within the GATT/ WTO.127 What is more, African countries established the Bamako convention to overcome resistance by industrialized countries against 122

Benvenisti and Downs (n 8). Jonathan Kuyper, ‘Global Democratization and Regime Complexity’ (2014) 20(3) European Journal of International Relations 620, 630. 124 Kuyper (n 11) 187. 125 Krisch (n 10). 126 Alter and Meunier (n 60); Helfer (n 5); Morse and Keohane (n 3). 127 Helfer (n 5) 41. 123

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tighter global regulation of transboundary movement of hazardous wastes under the Basel convention.128 Thus, we may infer that all actors that are dissatisfied with a particular institutional status quo can resort to crossinstitutional strategizing as long as they are able to act collectively outside of an established institution.129 Thus, with regard to challenging an established institution, ‘power’ refers to the ability to collectively challenge an established institutional framework. We may conclude that regime complexes facilitate the adaptation of institutional structures to changing constellations of interests and power. Their provision of additional opportunities for collective action therefore is supportive of the interests of those actors that seek to induce institutional change, whoever those actors may be. However, the systematic investigation of the normative implications of regime complexity is remarkably underdeveloped and constitutes an important area for future research.

5. CONCLUSION Regime complexes affect international politics at various stages of the governance process and challenge the integrity of international law. More precisely, regime complexes influence how international law is made, changed, and implemented, because the multiple members of overlapping international institutions gain opportunities for institutional choice. The choice of a particular forum for a new rule-making initiative allows influencing key factors that determine the result of international negotiations, such as the possibilities for issue-linkage, the framing of a particular topic, the composition of the negotiators, and the memberships. Regime complexes put states and non-state actors in a position to implement legal rules against the backdrop of all overlapping institutions that constitute the regime complex. However, these expanded opportunities for states to pursue their interests do not necessarily lead to a gradual disintegration of international law. There is tentative evidence that the interest of states in functional international institutions induce processes of mutual adjustment and gradual accommodation of functionally overlapping international institutions that may lead to arrangements of divided labor. However, empirical research on regime complexes has so far focused on a limited number of cases, mostly in the area of environmental governance. Expanding empirical research to other issue 128 129

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Clapp (n 101). See Jupille, Mattli, and Snidal (n 3).

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areas (for example, trade, finance, development assistance, human rights) is crucial to produce generalizable knowledge. It is also necessary to provide the empirical breadth necessary to understand differences between regime complexes. One promising way to advance research on regime complexity is, therefore, to conduct comparative empirical analyses of various regime complexes from different issue areas over time. In order to do so, it seems imperative to create more micro-level data from policymakers who are deeply embedded in regime complexes. In this chapter, we have reviewed what IR and IL contribute to our knowledge on the implications of regime complexity for international politics and international law. We have shown that IR advances our knowledge on how states behave under the condition of regime complexity. IL, on the other hand, points to the structural implications of institutional overlap. In order to relate the actor-centered work of IR scholars to the structural work of international lawyers, we introduced the idea of conceptualizing a regime complex as a particular type of governance system within which social order may or may not emerge. Thus, regime complexes constitute a promising area of interdisciplinary cooperation, but on what questions should IR and IL cooperate? Emilie Hafner-Burton and co-authors observe that: studies on the scope of legal commitments are now beginning to illuminate a topic that has long been a concern of international lawyers: whether the many different layers of international legal institutions lead to conflicts and forum shopping that can produce gridlock, or whether that institutional diversity might actually facilitate more effective cooperation. Here, a collaboration between political science and international law could help identify when a high density of overlapping and linked institutions impedes, and when it advances, international cooperation.130

We could not agree more. Whether regime complexity enables or impedes international cooperation is an important question that can only be tackled if we pay attention to the behavior of actors and to structural effects. As this chapter tries to make clear, both disciplines are well placed to contribute to such an endeavor in a complementary way. Another area of potential inter-disciplinary cooperation is research on the normative implications of regime complexes. So far, the normative IR-literature is remarkably underdeveloped. Due to the rationalist orientation of much IR-work on regime complexes, normative questions, for 130

Emilie M. Hafner-Burton, David G. Victor and Yonatan Lupu, ‘Political Science Research on International Law: The State of the Field’ (2012) 106(1) The American Journal of International Law 47, 88.

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example on the normative legitimacy of regime complexes or on the accountability of decision-makers, are virtually absent from the discussion, Kuyper’s suggestion that the democratization of global governance should be pursued at the level of regime complexes being an exemption.131 However, the demand for horizontal coordination among overlapping international institutions in the absence of a democratically legitimated final authority creates new legitimacy problems for global governance.132 From a normative point of view, it is desirable to debate and decide collectively how the different interests and rationalities that underlie overlapping international institutions should be reconciled. For example, it would seem necessary to decide collectively whether to prioritize economic growth or environmental protection on the global level, because this decision undoubtedly affects the life of individuals. Thus, the connection between citizens and societal groups on the one hand and state as well as organizational actors navigating regime complexes on the other hand constitutes an important area of future normative research on regime complexes that would benefit from interdisciplinary cooperation. In sum, it seems high time to advance our knowledge on the normative implications of regime complexity: what does regime complexity mean for the legitimacy of global governance, for the accountability of decision-makers and for the distribution of cooperative gains? All in all, regime complexes change international politics and challenge international law. To fully understand and explain the causes and the consequences of this development, both IR and IL have important insights to bring to the table.

131

Kuyper (n 11). Michael Zürn and Benjamin Faude, ‘On Fragmentation, Differentiation and Coordination – A Commentary’ (2013) 13(3) Global Environmental Politics 119, 128. 132

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PART II SITES OF GOVERNANCE

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8. The power of the implementers: global financial and environmental standards Walter Mattli and Jack Seddon

1. INTRODUCTION The politics of implementation may sound like an oxymoron. The assumption often is that through the lengthy process of agenda setting, and bargaining, leading to a policy decision, all the politics is complete, at least until the problems of enforcement and sanction emerge. However, while scholars have neglected the issue of implementation, global policymakers have been forced to grapple with it. The reason is simple. Ultimately, they are the ones left carrying the can when the recognized politics is finished. They have the responsibility to ensure that agreed global rules are properly implemented by all subscribing jurisdictions: fully, consistently, equivalently, without arbitrage and absent of other negative externalities. They may incur reputational costs when things go wrong. The problems of international regulators are compounded by the severe resource constraints they face in implementation. In this regard, David Wright, the Secretary General of the International Organization for Securities Commissions (IOSCO), has spoken candidly: Leaving aside the current difficulties on global accounting convergence, or cross-border conflicts of laws for auditors, or OTC Derivative implementation – margin requirements and swap dealer registration, or the timing and uncertainty of Basel III implementation, let’s consider the toolbox that global regulators have available to ensure consistent implementation. The tools can at best be described as soft: peer review; transparency; monitoring[;] … and, depending on your faith, perhaps the most potent of all … prayer!1

IOSCO is not an exceptional case. Implementation difficulties and constraints are pervasive. With their careers apparently in the hands of the gods, it is little wonder that international regulators have searched far and wide for 1

Interview with David Wright, ‘The Atlantic Council’ (10 December 2012).

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effective strategies of implementation. A strategy of choice has been to enlist implementation partners that possess the requisite regulatory competence, operational capacity, and/or legitimacy to tackle implementation challenges. Such partners include international public and private standard setting bodies (SSBs), non-governmental organizations (NGOs) and private corporations. These collaborative implementation schemes enable international regulators to more efficiently and effectively deliver regional or global public goods and services. The significance and pervasiveness of collaborative implementation in transnational governance has been little recognized, and the distributional consequences of such collaboration are even less well understood. Crucially, collaborative implementation may have unintended consequences, shifting power and authority from the recognized international regulator to the implementing agency. We explain when and why such power shifts are likely to occur at the implementation stage of the regulatory process. In presenting our argument we move past the traditional analysis of implementation in international relations and international legal scholarship.2 We are less interested in the functionalist question of what policy tools should be available to handle implementation difficulties, whether analyzed in the ‘enforcement’ or the ‘managerial’ perspective. Instead, we address the dynamic strategies and political agency that are actually involved in the real world struggle to get international standards enacted, and, most distinctively, we seek to bring to the surface the long-term distributional consequences of such implementation struggles. Before elaborating our theory, however, it is necessary to introduce a critical observation about the implementation stage of the regulatory process. Namely, that implementation represents a continuation of the rulemaking process. Rulemaking power is often said to manifest itself at the agenda-setting and negotiation stages of a regulatory process and is thought to derive from formal rulemaking authority. Our study repeatedly affirms that this picture is seriously incomplete and thus can be highly

2 George Downs, David Rocke and Peter Barsoom, ‘Is the Good News about Compliance Good News about Cooperation?’ (1996) 50 International Organization 379; Abram Chayes and Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Harvard University Press 1995); Kai Raustiala and David Victor, ‘Conclusions’ in David Victor, Kal Raustiala and Eugene Skolnikoff (eds), The Implementation and Effectiveness of International Environmental Commitments: Theory and Evidence (MIT Press 1998); Jonas Tallberg, ‘Paths to Compliance: Enforcement, Management, and the European Union’ (2002) 56 International Organization 609.

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misleading. Rulemaking is not confined to agenda-setting and negotiations. Significant rulemaking may occur at the implementation stage. The implementation of general legislation and rules, for example, may necessitate further regulatory clarification, inviting the implementing partner to engage in more detailed rulemaking. In regulation, the devil frequently is in the details, implying that the implementing partner can possess tremendous (de jure or de facto) rulemaking power. As discussed below in detail, the European Commission drafted general securities market legislation in the 1990s and enlisted an independent expert group called the Committee of European Securities Regulators (CESR) to produce detailed guidelines on the meaning of these rules to ensure consistent implementation and regulatory convergence across Europe. CESR seized on its seemingly narrow rulemaking mandate at the implementation stage to expand its jurisdiction incrementally and shape financial market legislation in ways that the Commission had not intended and found difficult to stop.3

2. COLLABORATIVE IMPLEMENTATION AND POWER: A THEORY Collaborative implementation schemes represent cooperative and mutually empowering arrangements. Broadly, implementation outcomes for the originator can be expected to improve, because the implementers have different comparative advantages and greater capacities to achieve implementation than rule originators. In general terms, these relevant skills and capabilities include highly specialized regulatory competencies, institutional legitimacy and position (that is, proximity to the ultimate targets of regulation) as well as more general operational capacities (financial and material, human and intellectual, informational and knowledge-based). By joining forces with institutions and organizations possessing such resources, originators can ‘fill gaps’ in their implementation capacities.

3

Similarly, it can be said that enforcement is not necessarily simply a judicial-technical support operation. Rulemaking at the enforcement stage – judicial rulemaking or ‘activism’ – is a well-known phenomenon extensively covered in the academic literature. The European Court of Justice is just one example of an enforcement body that has successfully engaged in judicial activism and shaped the regulatory core of European integration in ways no head of state would have thought possible at the time of the signing of the Treaty of Rome.

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However, complementary comparative advantages, and a common desire to get rules and standards enacted, will not imply perfect harmonies of interest. The implementer – whether a NGO, business organization, public or private group or trans-governmental network – may have goals that are not entirely aligned with the originator. This section seeks to identify the key factors likely to shape and determine the constitution of collaborative implementation arrangements, in particular the relative dependencies between the participating parties and the resulting distributional implications. 2.1 The Analytical Framework Our analytical framework makes two fundamental assumptions. First, the nature of the strategic relationship between the originator and the implementer is rarely perfectly harmonious, but best captured by the Battle of the Sexes Coordination game. In such games, all parties have an overriding preference to come to a common solution, but they disagree about the details of the common solution. Each party prefers a solution over none: in addition, each party prefers a solution that conforms to its own specific preferences rather than those of the partner. Collaborative implementation arrangements therefore may favor one party more than the other. In this sense, they have distributional implications. Second, the framework assumes that actors are boundedly rational rather than synoptically rational. The assumption of bounded rationality refers to cognitive and informational limitations that decision-makers experience when faced with complex or urgent problems. Applied to this study, bounded rationality simply means that parties cannot fully anticipate the distributional implications of delegating implementation tasks. Unintended consequences therefore are significant in processes of delegated implementation, perhaps especially so in areas that are highly technical and involve specialized expertise. In other words, it is necessary to look well beyond the formal collaboration arrangements that are first instantiated to understand the distributional implications of delegating implementation tasks. Eventual outcomes can differ dramatically from formally-sanctioned goals and constraints. The theory presented below posits that two key factors explain the distributional consequences of collaborative implementation arrangements: (1) rulemaking versus rule-supporting implementation functionality; and (2) single/focal versus multiple (actual or potential) implementers. We first offer an elaboration of these factors and then conclude with the presentation of the main conjectures. These conjectures are put to the test in the subsequent section.

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2.1.1 First explanatory factor: rulemaking versus rule-supporting functionality Implementers can be enlisted as rule-supporters or rulemakers. Rulesupporters are enlisted only to provide support services to the originator, including the provision of information on local conditions or compliance levels, public endorsement of particular standards, or ongoing legitimation and oversight in the process of implementation, and other sorts of logistic and material support that help to effect implementation. For example, the International Monetary Fund was enlisted into the financial standard setting regime as a rule-supporter in the aftermath of the Asian financial crisis. It was empowered only to monitor the implementation of standards and to seek to improve their uptake rather than to interpret rules or develop implementing provisions that could influence the content or substance of regulatory standards. This rule-supporter role is generally assumed to be that of the implementer. However, as noted above, more often than is commonly assumed, implementers can also be rulemakers at the implementation stage, with the power to define the general parameters of implementation and/or the specific details of an established solution to a cooperation challenge. For example, the European Court of Justice does not simply monitor the implementation of rules, it also interprets them in ways that shape political, economic and social consequences. Generally, in areas where originators and implementers diverge on how best to approach and solve a cooperation problem, the agent with most important rulemaking capabilities will have a disproportionate impact on the ultimate solution. They are in a position to select their preferred Pareto points, that is, they are likely to set regulatory parameters that reflect their substantive policy preferences and ensure that their organizational and economic interests are maximized, subject to a constraint of minimum acceptability to rule-supporting partners. Thus, it matters hugely if implementers are limited to a rule-supporting functionality or if they also acquire a rulemaking role. In what ways does rulemaking confer more power than a rulesupporting role in a collaborative implementation arrangement? That is, what are the sources of rulemaking power? At least three sources are worthy of mention. First, as amply illustrated in this study, technical or expert knowledge generates great information asymmetry between partners: an implementer with rulemaking power can potentially keep the originator in the dark or at bay. The originator may trust the implementer to be a rulemaker, but not really fully understand the implementation solutions proposed or grasp the long-term implications of these solutions. Lack of information and knowledge makes it difficult to effectively

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oppose an implementation proposal that may have unfavorable distributional implications. In other words, asymmetry reduces the constraints under which the implementer rulemaker operates, enabling the forging of solutions that will favor the interests of the implementer more so than those of the originator. Second, rulemaking almost naturally is more constitutive than rulesupporting. A rulemaker, even when in technical or formal terms ‘a mere implementer rulemaker’, is in the driver’s seat, charting the course of action and continuously deciding which turn to take or not. Moreover, rulemakers can use their power to directly enhance their own capacity for political action through the implementation process. By contrast, rulesupporting implementation activities – though still critically important to effective implementation – are more discrete and backstage. A decision by an NGO, for example, to formally endorse a rule or standard can tremendously boost the legitimacy and prestige of the decision or policy made by the originator. However, the rule-supporting act of endorsement is a single event to assist in implementation. Endorsement can be revoked, of course, as can logistic or financial support. Nevertheless, rule-supporting actions arguably have less direct impact on the shaping of cooperation outcomes than the more continuous activity of rulemaking. Finally, rules once set and adopted may be hard to change because of network effects. The power to institute rules inevitably attracts actors outside the partnership with an interest in the form and content of rules, gradually concentrating and reinforcing the locus of relevant information and deliberation, decision and authority. Thus, for instance, the ECJ’s role in implementation attracted private business organizations and other private actors with an interest in the harmonization of Community law.4 The benefits of adopting and complying with new rules also increase as more targets convert to those rules. The logic of these increasing returns is to spawn large networks of vested interests in, and defenders of, the rules and rulemakers, increasing the cost to opponents seeking to dislodge their status. Network effects can entrench and magnify the power of the rulemaker implementer over time and, ceteris paribus, render it more difficult for the originator to successfully rectify the rules’ distributional biases. As already observed, the distinction between a rulemaking and rulesupporting functionality for the implementer may seem clear and simple in the abstract. In reality, it can be challenging to identify the true

4 Walter Mattli and Anne-Marie Slaughter, ‘Law and Politics in the European Union: A Reply to Garrett’ (1995) 49 International Organization 183.

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rulemakers in collaborative implementation arrangements. Implementers may have no formal rulemaking authority and/or operate in relative secrecy. Only careful empirical investigation will reveal the site of real power and rulemaking as between the originator and implementer. Further, in some arrangements, we do not have simply one rulemaker and one rule-supporter: both the originator and implementer may possess rulemaking and rule-supporting capabilities – but to varying degrees. In these circumstances, the jurisdictional boundaries of rulemaking authority at the implementation stage may sometimes be the object of contestation. However, this complexity generally is not a problem for the analysis. For example, the originator of the scheme may define the broad contours of a regulatory regime and then charge an implementer with working out the regulatory details and giving precise meaning to broad framework provisions. To the extent that the latter activity requires much greater technical expertise and is more continuous than the defining of broad contours, effective rulemaking power can be said to reside with the enlisted implementer. 2.1.2 Second explanatory factor: single/focal versus multiple partner pools The distribution of power in collaborative implementation arrangements is also shaped by the number of potential implementers in a given domain, as this will alter the size of the rent payable needed to secure or maintain an implementer’s cooperation. An originator facing a steady supply of (actual or potential) implementers incurs a lower opportunity cost (suspended gains if a partnership breaks down) than an originator facing a single/focal implementer. The former will find it easy to arrange an alternative collaboration with another ‘supplier’ whereas the latter may be excluded from an implementation arrangement for some time if no deal can be done and thus incur a high opportunity cost. As a result, an originator is expected to accrue fewer benefits or pay a higher price to institute and/or maintain an implementation relationship with an organization in a monopoly position to implement than if the originator faces many (actual or potential) implementers. Only a monopoly implementer can extract a monopoly rent. However, as our cases demonstrate, the size of rents will also vary depending on the contestability of that monopoly. That is, an originator may be able to ‘manufacture’ a more contestable environment and so weaken the position of a monopolist by creating alternative implementers or building the capacity to internalize implementation functions that would otherwise be shared through the arrangement.

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In our analysis, it does not matter whether an implementer is ‘single’ or ‘focal’ – both have the same effect on distributional outcomes. The two terms, however, are not necessarily identical. Single is a quantitative expression – it means ‘just one’. ‘Focality’ emphasizes a qualitative aspect: a focal organization may not be the only player but it is the obvious one for a given cooperation challenge. It may have a good track record built on technical expertise, financial resources, and perhaps even legitimacy. A single organization may or may not be richly endowed and possess great legitimacy. However, a single organization that is wellendowed and widely accepted as legitimate may be said to also be focal. 2.2 The Conjectures The combination of the two central variables of our framework – implementation functionality (that is, rulemaking versus rule-supporting) and implementation contestability (that is, single/focal versus many) – generates four conjectures, listed in Figure 8.1. The figure plausibly assumes that in a collaborative implementation arrangement only one originator is involved, and this actor faces either a single/focal implementer or multiple potential implementers. At one extreme is the case of a focal implementer assuming the task of principal rulemaker at the implementation stage of the regulatory process. This enlisted implementer interacts with an originator whose main contribution may be one of encouragement and endorsement. In this arrangement, we would expect the implementer to be the primary beneficiary. It defines the rules (or policy) that will govern the behaviour of states or private actors. In doing so, it will first and foremost seek to promote or safeguard its own regulatory preferences and organizational interests. If displeased with (some of) these rules, the originator will have few means at its disposal to put pressure on the enlisted implementer to reconsider or revise its rules (Conjecture 1). At the other extreme is the case of an implementer confined to a rule-supporting role and easily substitutable. Such an implementer faces competition from other bodies to which the originator could turn if dissatisfied with its services. In this case, the distributional implications strongly favour the originator (Conjecture 4). The model generates two further conjectures. In cases where the implementer – selected from a menu of possible organizations – assumes a rulemaking role, it will be able to set the agenda and/or define the regulatory details, subject to minimal acceptability by the originator. If displeased, the originator may shop for a more compromising or pliant implementer who will exercise its rulemaking authority differently. The

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The power of the implementers 215 Implementer Rule-Making Role

Rule-Supporting Role

Relative Power of Implementer strongest

Single/Focal

Originator has strongest say in shaping solution but may need to ind a Originator few options but compromise with the to accept Implementer’s Implementer. terms and proposals Distributional Implications Strongly Favouring Implementer

Implementer Pool

Multiple (Menu of options)

Distributional Implications Favouring Originator

(Conjecture 1)

(Conjecture 3)

Implementer has strong say in shaping solution but may need to compromise with Originator (It is constrained by possibility of forum shopping by Originator)

Relative Power of Implementer weakest

Distributional Implications Favouring Implementer (Conjecture 2)

Implementer largely subservient

Distributional Implications Strongly Favouring Originator (Conjecture 4)

Figure 8.1 Types of collaborative implementation and power implications distributional consequences of the partnership here will only weakly favor the implementer (Conjecture 2). Finally, in cases where the originator is in the rulemaking driver’s seat, the outcome will favour the originator partner. However, its rule-supporting implementer has a way of ensuring that the originator respects its basic interests. If unhappy with the arrangement, the single implementer can walk away from the collaborative arrangement, jeopardizing an effective solution. The originator will want to avoid such an outcome by offering enough concessions to keep the enlisted implementer in the scheme (Conjecture 3). In conclusion, it is worth noting again that in a context of bounded rationality, the various distributional consequences of agreements may emerge only over time, they are learned through the experience of working together. This is particularly true of implementation arrangements in highly technical and complex issue areas.

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3. ILLUSTRATING THE THEORY’S CONJECTURES This section examines the conjectures regarding the downstream distributional (or leadership) implications of collaborative implementation using short case studies. This case selection process has been designed to affirm the observation that rulemaking at the implementation stage is far from exceptional. It also seeks to emphasize the wide variation in outcomes across the different implementation arrangements. We should observe different distributional outcomes and different power shifts at the implementation stage of the regulatory process across each comparison. Each selected case (listed in Figure 8.2 in bold) is representative of a much wider set of cases corresponding to the various conjectures (see Figure 8.2). Implementer Rule-Making Role

Single/Focal

G-20/Financial Stability Board – Recognised Standard Setting Bodies (BCBS/IOSCO etc.) World Trade Organization (WTO) – Recognised Standard Setting Bodies (ISO/IEC/Codex Alimentarius Commission) Commission – International Accounting Standards Board (IASB) Commission – Committee of European Securities Regulators (Lamfalussy Level 3)

Examples Corresponding to Conjecture 1

Multiple

International Telecommunication Union (ITU) – IT Consortia Extractive Industries Transparency Initiative (EITI) – Business Organisations and NGOs United Nations Kimberly Process Certiication Scheme (KPCS) – Business Organisations and NGOs Commission – Environmental NGOs (1980s, early ‘90s)

Examples Corresponding to Conjecture 2

Rule-Supporting Role Recognised Standard Setting Bodies (BCBS/IOSCO etc.) – International Finance Institutions (IMF and World Bank) International Federation of Accountants (IFAC) – Public Interest Oversight Board (PIOB) Basel Committee on Banking Supervision (BCBS) – Credit Rating Agencies NAFTA Commission for Environmental Cooperation – Joint Public Advisory Committee Commission – Body of European Regulators for Electronic Communications (BEREC) Examples Corresponding to Conjecture 3

Global Environmental Facility (GEF) – The United Nations Environment Program, and Environmental NGOs, etc. International Labour Organisation – Labour Rights NGOs Global Reporting Initiative (GRI) – Environmental NGOs, Business Organisations, Academic Institutions, etc Commission – Committee of European Securities Regulators (Lamfalussy Level 2) Commission – Environmental NGOs (since late ‘90s) Examples Corresponding to Conjecture 4

Figure 8.2 Examples of collaborative implementation corresponding to the theory’s conjectures Before proceeding, it is important to emphasize that in collaborative implementation both originators and implementers are likely to benefit from the arrangement. However, our concern is to highlight that the relationship between partners is rarely perfectly harmonious. We focus on conflict, exploring instances when disagreements over the specifics of a solution – the precise points on the Pareto frontier – erupt at the

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implementation stage, and identifying which party exercises power in these moments. 3.1 Conjecture 1: Collaborative Implementation in European Accounting Regulation The analytical framework of this study suggests that establishing a collaborative implementation scheme with a focal organization and passing independent rulemaking powers to the implementer is likely to result in distributional outcomes favoring the implementer. If displeased with (some of) the rules, the originator will have few effective options to bring about change. Although often unanticipated, de facto power and authority shifts from the originator to implementer in such arrangements. The European Commission’s decision in February 2002 to establish a collaborative implementation arrangement with the International Accounting Standards Board (IASB), the focal private-sector rulemaker in global accounting standards, to implement a harmonized set of financial reporting rules in the EU confirms this expectation. Since its introduction into Europe, to improve the harmonization of accounting standards by the Commission, the IASB has emerged as the clear winner in the policy domain, with distributional net gains accruing disproportionately to its advantage. For sure, both partners have been benefitting from the implementation arrangement. The Commission has finally achieved its objective of having a single set of financial reporting standards across Europe. However, the IASB, in turn, received a big boost to its legitimacy as a global regulator from EU endorsement, prompting major countries such as China, Japan, Brazil, India, Canada and South Korea to set out timetables for adoption or convergence to IASB standards. By 2010, about 100 countries required compliance with International Financial Reporting Standards (IFRS), up from less than 20 countries ten years’ earlier.5 In short, IASB’s organizational interests have been very well served: demand for its rules and services has surged and is likely to keep growing for years to come. Remarkably, however, the IASB has been reaping these gains largely cost-free, that is, without concessions to the Commission. Shortly after endorsing the IASB, the Commission began to press the IASB to overhaul its governance system on the grounds that, as the first region to adopt IFRS, Europe deserved much wider representation in the

5 Tim Büthe and Walter Mattli, The New Global Rulers: The Privatization of Regulation in the World Economy (Princeton University Press 2011).

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IASB. The Board comprised 14 members – full-time and highly-paid professionals from the accounting profession. Five board members were American accounting professionals. The US, UK, Canada, South Africa and Australia together had no fewer than ten members. A majority of eight members was needed to adopt a new standard. In short, the Anglo-Saxon alliance could dictate the rules and continental Europe would have to take them. Nevertheless, the Commission’s criticism of unbalanced Board representation cut no ice with the IASB. It countered that as a private-sector expert body, membership selection must be guided not by political or regional criteria but by technical expertise. The Commission possessed no real powers to change course. Financially, the IASB is independent and privately funded by the ‘Big Five’ accounting firms. Further, the Commission has no formal role in IASB’s governance structure and cannot intervene directly in the private rulemaking process of the IASB. With no alternative implementation partner in sight, the Commission is in no position to extract significant concessions.6 3.2 Conjecture 2: Collaborative Implementation in European Environmental Regulation The distributional outcome of the IASB case can be contrasted with another case of Commission-led collaborative implementation in the environmental domain. In many ways, the accounting and environmental cases look similar. In both cases the implementers have been endowed with (formal or informal) rulemaking capability and thus have been in a strong position to shape outcomes to suit their own policy preferences and organizational interests. However, as per Conjecture 2 of the framework, a second variable, namely the number of potential implementers, also affects the ‘price’ originators must pay to implementers. In the IASB case, the single implementer extracted a massive price from the Commission for its services. By contrast, the Commission’s Directorate General Environment (DG ENV) possessed one important strategy to control and manage the implementation arrangement not available in the accounting domain. It could forum-shop, that is, it was able to choose its preferred implementer from a menu of potential organizations. Through this source of power, DG ENV was able to reverse early distributional losses to the rulemaker implementers it had chosen. By shopping between different environmental non-governmental organizations (ENGOs), DG ENV has 6

For a detailed discussion, see Joseph Jupille, Walter Mattli and Duncan Snidal, Institutional Choice and Global Commerce (Cambridge University Press 2013) 184–93.

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progressively reduced the price it has paid for effective implementation of its mandate. With the passage of the Single European Act (SEA) in 1986, the DG ENV won formal authority to draft pan-European environmental legislation. However, it faced one major difficulty: a severe lack of resources. Its staff counted only 60 civil servants and it possessed little in-house scientific expertise.7 Against all odds, DG ENV succeeded in ‘produc[ing] an enormous amount of legislation in a very short period of time’ and became one of the most respected directorates.8 How did it achieve such a feat? Through establishing a collaborative implementation arrangement, DG ENV found resourceful allies, ENGOs, willing and able to help it get its mandate implemented. The result of enlisting the ENGOs was the implementation of an impressive volume of progressive environmental regulation covering a wide range of areas, including water and air quality, nuclear waste disposal, safety at industrial complexes and wildlife and habitats. This set-up strongly benefitted the ENGOs. In the early years, the DG ENV’s ability to forum-shop was severely constrained by the high level of cohesion and coordination within the so-called Gang of Four (G4) – four major Brussels-based ENGOs (Friends of the Earth (FoE), Greenpeace, the World Wide Fund for Nature (WWF) and the European Environmental Bureau (EEB)) who had agreed to coordinate action with the purpose of ‘giv[ing] a greater voice to the environmental NGO community in Brussels [and] promoting a message of strength, unity, and professionalism’.910 The G4 possessed resources that DG ENV desperately needed: extensive in-house technical expertise and the ability to tap into wide science-based support networks to further implementation.11 Unsurprisingly, DG ENV became heavily dependent upon the implementer entities. Critics started to describe DG ENV as a ‘nest of green radicalism’ or an organization captured and dominated by ‘ecological freaks’. In short, the

7 Emmanelle Schön-Quinlivan, ‘The European Commission’ in Andrew Jordan and Camille Adelle (eds), Environmental Policy in the EU: Actors, Institutions, and Processes (Routledge 2012) 104. 8 ibid. 9 Tony Long and Larisa Lörinczi, ‘NGOs as Gatekeepers: A Green Vision’ in David Coen and Jeremy Richardson (eds), Lobbying the European Union: Institutions, Actors, and Issues (Oxford University Press 2009) 173–4. 10 G10 Protocol of 1999. 11 Long and Lörinczi (n 9).

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Commission initially was paying costs similar to those in the accounting domain. However, the DG ENV was not caught over a barrel in the same way. The reason, consistent with our theory, is as follows: over time, more and more ENGOs flocked to Brussels. The G4 eventually grew into the G10. The newly-arrived ENGOs began to vie for implementation work with DG ENV not only to shape EU environmental policy but also to improve their financial position and grow. A working implementation relationship with DG ENV can be highly lucrative for ENGOs. As a result, DG ENV has gradually been able to improve its ability to forum-shop among competing (actual or potential) implementers, thereby reducing the ‘price’ it pays for effective implementation. By the late 1990s, it had succeeded in shedding some of its ‘green-radical’ image and had even managed to shift the ENGOs from a rulemaking implementation role to an increasingly rule-supporting role by building its own capacity – moving its relationships progressively from a Conjecture 2 to Conjecture 4. DG ENV quietly recalibrated the collaborative implementation arrangements as it gained this leverage.12 It began to favor working relations with so-called ‘light green’ organizations known for their more moderate views compared to ‘dark green’ ENGOs known for their more assertive or militant styles. DG ENV also encouraged the formation of cross-sectoral implementation partners, such as European Partners for the Environment (EPE) whose members include ENGOs and firms. This subtle switching between different potential implementers has served DG ENV and its long-term organizational interests well. It has enabled it to project more credibly an image of balance and impartiality in its regulations, thereby gaining wide support for its policies across Europe, and slowly restoring itself to a position of control across the whole of the regulatory process.

12 For specific evidence, see Andrea Lenschow, ‘Environmental Policy: Contending Dynamics of Policy Change’ in Helen Wallace, Mark Pollack and Alasdair Young (eds), Policy-Making in the European Union (Oxford University Press 2010) 319; Justin Greenwood, Interest Representation in the European Union (2nd edn, Palgrave MacMillan 2007) 132.

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3.3 Conjecture 3: Collaborative Implementation in Global Financial Regulation In the aftermath of the Asian financial crisis various technocratic standard setting bodies (SSBs), such as the Basel Committee on Banking Supervision (BCBS), IOSCO and International Association of Insurance Supervisors (IAIS), set out to fill a major gap in their institutional capacities by establishing a collaborative implementation scheme with the International Finance Institutions (IFIs) (that is, the World Bank and International Monetary Fund). In this case, the implementers are non-substitutable, but only possess rule-supporter functionality. The results of this case study affirm Conjecture 3 that the major beneficiaries of the implementation scheme have been the SSBs, while the IFIs have been marginalized. Prior to the creation of a collaborative implementation arrangement with the IFIs in 1999, the SSBs active in global finance had very limited means to encourage the uptake and consistent application of their regulatory standards. The IFIs were the logical solution to this resource gap: in contrast to the SSBs, the IFIs had near-universal membership, access to resources to hard-law, man-power and direct access to the developing country targets of standards. When they were enlisted, the IFIs were reduced to a rule-supporting implementation function, monitoring the implementation of standards through the Financial Sector Assessment Program (FSAP), which produces Reports on the Observance of Standards and Codes (ROSCs) and Financial Sector Stability Assessments (FSSAs). The distributional effects of this deal were dramatic and immediately felt. Overnight the SSBs experienced a ‘huge uplift’ in the reach and force of their standards, and they paid very little for this gain.13 By contrast, the IFIs were left ruing the need to perform what they considered the Cinderella tasks of supporting implementation. They also saw the arrangement as crystallizing a massive shift in power away from them and towards the Basel-based regulatory groupings, as the latter were anointed as the primary rulemakers for matters of financial stability.14 However, consistent with Conjecture 3, the SSBs in Basel have felt the constraints of non-substitutability on occasion. For example, when the IFIs required a methodology by which to benchmark national compliance 13

Interview with Michael Prada (19 January 2012). Charles Goodhart, The Basel Committee on Banking Supervision: A History of the Early Years, 1974–1997 (Cambridge University Press 2011) 338–440. 14

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with IOSCO’s Core Principles of Securities Regulation (the Principles), key members of IOSCO expressed strong reservations and pledged resistance. However, IOSCO had little practical choice in the end but to develop the methodology in order to sustain the collaborative implementation arrangement.15 3.4 Conjectures 1 and 4: Collaborative Implementation in the European Securities Market Regime The creation of a single financial market in Europe has been a longstanding but elusive goal of the Commission. One essential component of such a market is a single set of financial reporting rules. As discussed above, the adoption of such rules was an immensely protracted and arduous process. It was only when the Commission started to experiment with collaborative implementation, enlisting the IASB, that the pace of progress quickened. Another element of an integrated financial market is a set of common rules for securities markets. In the late 1990s, the Commission responded to the need for the harmonization of securities market rules by announcing the ‘Financial Services Action Plan’ (FSAP), but it expressly recognized that ‘if we are to successfully implement the FSAP, we will need to overhaul the way we develop financial services legislation’.16 The outcome was a collaborative implementation arrangement with the Committee of European Securities Regulators (CESR), a network of national securities regulators from EU member states. The review also introduced a new implementation process – known as the Lamfalussy process – which included a two-step implementation procedure. CESR had two distinct implementation roles – one rule-supporting, the other rulemaking – in Lamfalussy’s two-step implementation process. The overall regulatory process can be summarized as follows: at level 1 (L1), the Commission proposed ‘framework’ legislation which was then adopted by the Council of Ministers and the European Parliament under the co-decision procedure. The Commission next developed level-2 (L2) implementing rules to clarify and supplement the adopted framework legislation. Much of this technical implementation work took place in the new European Securities Committee (ESC) run by the Commission with 15 Interview with Tony Neoh (Chair of IOSCO Technical Committee 2003– 2006) (22 January 2013). 16 Commission, ‘Financial Services: Implementing the Framework for Financial Markets: Action Plan’, accessed 14 September 2016 at http://ec.europa.eu/ internal_market/finances/docs/actionplan/index/action_en.pdf.

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involvement from finance ministries. In this L2 implementation process, the Commission enlisted CESR in an advisory capacity: CESR was asked to comment on draft standards and assist with technical and market information. Rulemaking authority remained with the Commission, Council of Ministers and European Parliament: CESR’s first role simply was to support the L2 process. CESR then played a second implementation role at level 3 (L3). This level was designed to support convergence and consistency in the application of L1 and L2 rules. Finally, at level 4 (L4) issues concerning sanction and enforcement were considered. CESR entered the L2 collaboration arrangement with high hopes of influencing the implementation process but soon found itself disappointed. The reasons are twofold. First, the Commission frequently rejected or ignored CESR advice when such advice failed to fit with its general regulatory preferences. For example, it rejected CESR’s view in relation to the L2 market abuse rules that investment recommendations by journalists be subject to a specific regime or CESR’s recommendation that credit-rating agencies be subject to the investment research rules of the market abuse regime. Further, the Commission sometimes marginalized CESR in discussions over certain sensitive issues such as bond market transparency as well as hedge-fund and private-equity regulation, seeking advice from other expert groups, including groups it established in 2004 partly to diminish CESR’s monopoly status, namely, the European Securities Markets Expert Group (ESME) and the Forum of User Experts in the Area of Financial Services (FIN-USE). In principle, CESR was the Commission’s first port of call for L2 assistance. In practice, the Commission created and then turned to alternative providers whenever it pleased. Consistent with the theory’s Conjecture 4, the presence of alternative rule-supporting groups hugely weakened the position of CESR in L2 matters. CESR seemed to have been ‘bought by the Commission’ – as aptly put by a frustrated securities regulator.17 Indeed, the Commission emerged as the clear winner in the L2 implementation stage. It retained all of its legislative powers, and obtained from its partner valuable technical assistance and market information for the ‘cheap price’ of CESR inclusion in the Lamfalussy system. With this support, the Commission successfully transposed a large number of major pieces of financial legislation into detailed laws in rapid time. This outcome contrasts

17

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Interview with Fabrice Demarign (19 January 2011).

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sharply with the pre-partnership period of protracted and largely ineffectual securities market regulation led by the Commission. However, as noted, CESR played a second implementation role – this one much more consequential in terms of a de facto power shift – at level 3 (L3). Formally, CESR’s L3 task was to ‘foster and review common uniform day-to-day implementation and application of Community legislation, issuing guidelines, recommendations, and standards to be adopted by CESR members in their regulatory practices on a voluntary basis’.18 Seemingly technical and narrow, this provision laid down the principle that CESR had rulemaking power through the issuance of ‘guidelines’, ‘recommendations’ and ‘standards’. CESR quickly seized on this new rulemaking power to augment its influence on policy outcomes.19 CESR did astonishingly well in L3 implementation matters.20 As summarized by Moloney: ‘Through level 3 activities, CESR … acquired a degree of influence over the financial markets which is remarkable given its establishment in 2001 … This has occurred through a range of quasi-regulatory [and] supervisory mechanisms … no[t] … specified in CESR’s founding Decision.’21 CESR used its L3 powers to effectively amend EU legislation or introduce rules in areas not yet covered by the Commission. However daring its actions, CESR routinely justified them in terms of the need for supervisory convergence and clarity in implementation.22 Its guidelines and standards, though formally not binding, were quickly ‘regarded by market [actors] as tantamount to regulatory fiat’.23 Finally, CESR used its rulemaking implementation authority to position itself as the focal interlocutor for operational negotiations with the US Securities and Exchange Commission (SEC), and IOSCO, as well as a range of societal groups, including the financial services industry.24

18 The Committee of European Securities Regulators, ‘Charter of the Committee of European Securities Regulators’ (2006) CESR/06-289c, art 4.3. 19 Interview with Docters van Leeuwen (Chairman of CESR 2001–2009) (15 February 2012). 20 ibid. 21 Niamh Moloney, ‘The Committee of European Securities Regulators and Level 3 of the Lamfalussy Process’ in Michel Tison and others (eds), Perspectives in Regulation and Corporate Governance (Cambridge University Press 2009) 451–2. 22 Interview with Demarign (n 17). 23 Moloney (n 21) 455. 24 Interview with van Leeuwen (Chairman of CESR 2001–2009) (n 19).

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In sum, CESR succeeded in less than a decade to leverage a seemingly narrow and technical rulemaking implementation role in the L3 arrangement into a wide-ranging quasi-regulatory undertaking, leaping from local obscurity to global prominence. The Commission watched CESR’s growing influence with concern and reprimanded its power-grabbing implementer, occasionally even in public. But, with no substitute in sight, it could do little else.25 CESR morphed into the European Securities and Markets Authority (ESMA) in the aftermath of the recent global financial crisis.26 Our theory suggests that notwithstanding how conservative and distrustful EU member states and the Commission were in its design, ESMA inevitably will grow in regulatory stature where it can monopolize political action at the implementation stage.27

4. CONCLUSIONS The framing chapter of this book argues that interactions between law and politics need to be understood in the context of different systems and stages of governance. This chapter is testament to the value of this analytical perspective. In systems of international governance that seek to influence private activities, the imperative for IGOs and their leaders – with limited capacities and jealous political masters – to seek external support, often from the private sector itself, to achieve better outcomes at the implementation stage of governance is self-evident. The growing universe of collaborative implementation schemes in global governance is evidence to this. However, too often, these developments have been cast in terms of unclouded optimism by both practitioners and scholars because the politics of the legal implementation stage has been neglected. The problem is that support to achieve implementation always comes at a political price. Policymakers contemplating the use of implementation partners to achieve their goals often lack sufficient knowledge of the dramatic, and sometimes irreversible, distributional implications we highlight. To close this gap, we sought to specify under what conditions collaborative implementation arrangements will result in long-term power 25

Interview with David Wright (21 December 2011). Eilis Ferran, ‘Understanding the New Institutional Architecture of EU Financial Market Supervision’ in E. Wymeersch, K.J. Hopt, and G. Ferrarini (eds), Financial Regulation and Supervision: A Post-Crisis Analysis (Oxford University Press 2012). 27 Interview with Prada (n 13). 26

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transfers. We have argued that in many cases the implementing party will, formally or informally, assume a role that is rulemaking in nature (broadly defined), whereas in other cases the implementing partner will specialize in only rule-supporting tasks. In the former cases there is a great likelihood of substantial power shifts as benefits will accrue to the rulemaking implementer. By contrast, the rule-supporting implementer will remain marginalized. The theory also explains why collaborative implementation arrangements also vary according to the number of available partners. Instrumentalizing easily substitutable rule-supporters implies a lowest price deal for the originator when enlisting external resources to achieve better implementation. The empirical part of this study compellingly supports the theory’s main conjectures. The contrasting position of the Commission in the realms of accounting and environmental regulations speaks powerfully to the importance of substitutability. The IASB case demonstrates how delegation to a single rulemaker implementer can dramatically shift power away from the originator. The analysis of collaborative implementation in the international standard setting and evolution of collaborative implementation in European environmental regulation reveals the relative subordination of rule-supporters. The final case of CESR offers a nice illustration of the most different outcomes expected by our framework in a single setting. CESR was marginalized in policy areas where it was given only a rule-supporting role, but it has attained major distributional gains whenever it has managed to achieve command over the rulemaking of technical implementing standards. We see our study as essential to understanding the politics of implementation in the international arena and the role of backstage and often non-state actors in this process. When power at the implementation stage of regulation is taken seriously, influence is not always where it first seems to be. The attention to the ‘power of the implementers’ – especially where they have the ability to continuously establish the rules that guide cooperation under different conditions – should serve to broaden the debate on power in global governance. The surprising, even disturbing, outcomes we have found underscore the point that the locus and sources of global power are changing. In a growing number of issue areas, the decisive source of influence is not traditional state power based on military might or the size of the economy, but is instead found, away from view, in the hands of the technicos who set about quietly implementing rules.

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9. The European Court of Human Rights and the politics of international law Mikael Rask Madsen1

International law (IL) is politics according to leading international legal scholar Martti Koskenniemi.2 He stresses that in order to distinguish his approach from studies of law and politics or for that matter the politics of international law. There are more reasons for this explicit stance in his work, one of them being that he is not seeking an interdisciplinary study of international law. Instead, he does not question the politics of IL broadly speaking – that is a given and neither a surprise nor a problem. This puts him in opposition to more formalist international legal scholars, yet it does not make him an interdisplinary scholar of IL or a student of the politics of international law. Together with his colleague Jan Klabbers, he takes in fact a very critical stance against the ease with which interdisciplinarity has been evoked to explain IL, and perhaps particularly the politics of IL, the subject of this book. What they are reacting to is the asymmetric relation that respectively law and political science typically occupy in such studies.3 According to Klabbers, interdisciplinarity is often a badly camouflaged device for disciplinary imperialism whereby one discipline takes over the other. Needless to say, according to these international lawyers, the victim is IL in a normative legal sense, that is, they argue, doctrinal law as a scholarly endeavor loses much of its singular explanatory power when coupled with political science.

1

This research is funded by the Danish National Research Foundation Grant no. DNRF105. This chapter relies in part on the analysis presented in previous empirical analyses of the European Court of Human Rights, in particular Mikael Rask Madsen, ‘The Challenging Authority of the European Court of Human Rights: From Cold War Legal Diplomacy to the Brighton Declaration and Backlash’ (2016) 79(1) Law & Contemporary Problems. 2 Martti Koskenniemi, The Politics of International Law (Hart Publishing 2011). 3 For example Jan Klabbers, ‘The Bridge Crack’d: A Critical Look at Interdisciplinary Relations’ (2009) 23(1) International Relations 119; Jan Klabbers, ‘Counter-Disciplinarity’ (2010) 4(3) International Political Sociology 308.

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Although this critique seems taken a bit too far, the question nevertheless remains whether claims such as that IL and international relations (IR) ‘cohabit the same conceptual space’,4 or that they are potentially a kind of joint discipline5 are all that fruitful or realistic. In other words, when addressing the question at the heart of this book, the politics of IL, there is a connected disciplinary – if not epistemological – question of how to make sense of the interface of politics and law. In fact, as I have argued elsewhere, there is a third even less theorized but connected problem in this regard, namely that the strong and long dominant emphasis on the interface of law and politics leaves out the sociological dimension that nevertheless seems necessary for explaining the law and legal institutions of the so-called society of nations.6 Put differently, the necessary sociology for making intelligible the ‘society of nations’ and its legal institutions is generally missing, that is, the ‘study of the social structures of international society and how these help explain the relative power of international law, courts and lawyers in their interaction with other institutions and actors’.7 In the introduction to this book Wayne Sandholtz and Christopher A. Whytock provide some general definitions of, respectively, law and politics: in their approach the social is mainly implied. Their goal is, however, not to solve the interdisciplinary puzzle of studying the intersections of law and politics. The editors instead highlight how the domains of law and politics are deeply intermeshed and contingent. This implies, according to the editors, that it is simply not viable to differentiate the two but rather to speak of degrees of, respectively, legalization and politicization.8 The main point they make is that politics is different 4

Anne-Marie Slaughter, ‘International Law in a World of Liberal States’ (1995) 6(1) European Journal of International Law 503. 5 Kenneth W. Abbott, ‘Modern International Relations Theory: A Prospectus for International Lawyers’ (1989) 14(2) Yale Journal of International Law 335. 6 Jakob V.H. Holtermann and Mikael Rask Madsen, ‘European New Legal Realism and International Law: How to Make International Law Intelligible’ (2015) 28(2) Leiden Journal of International Law 211; Mikael Rask Madsen, ‘Sociological Approaches to International Courts’ in Karen Alter, Cesare P.R. Romano, and Yuval Shany (eds), Oxford University Press Handbook of International Adjudication (Oxford University Press 2014). 7 Mikael Rask Madsen, ‘The New Sociology of International Courts’ (2015) 4(11) European Society of International Law Reflections, accessed 14 September 2016 at http://www.esil-sedi.eu/node/1169. 8 Wayne Sandholtz and Christopher A. Whytock, ‘The Politics of International Law’, Chapter 1 in this volume.

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when exercised in a more legalized domain than in a less regulated domain. Legalization basically alters politics. However, the puzzle is that politics is nevertheless capable of changing law although law regulates the political processes of its own change. We are facing a problem that makes generalization almost impossible in broader theoretical terms. This is due to the fact that Koskenniemi, in part, is right in pointing to international law being politics – and, one should hastily add, politics expressing itself in legal terms. And although, respectively, the politicization and legalization of international law can each be graduated on its continuum as the editors suggest, this cannot solve this puzzle inherent in such an inquiry. What can be concluded from this opening discussion is that we are simply not dealing with the usual structure-agency problem here because law is both structure (it constrains political action) and agency (it interprets and redevelops political projects turned into legal form), and the same goes for politics vis-à-vis law: it constrains legal action and it redevelops and interprets law by political action. The challenge posed by the two objects of inquiry being both structural and agentic echoes a broader debate in the sociology of law, as well as law and society studies, where the similar problem of recursivity is problematized as law in society and society in law. Similarly, one could problematize the lawpolitics interface as politics in law and law in politics (or political context). While, as suggested, it is somehow both, speaking of the politics of law seems to suggest a particular emphasis, namely law as an independent variable as opposed to the traditional view of international law as effect rather than cause. Therefore, for the purpose of the present chapter, I believe it is most viable to disentangle the two phenomena by presupposing international politics as a broader and pre-existing general social phenomenon, and considering IL as a particular social construct only available in certain domains and with varying rigor and power with regard to politics.9 This also corresponds with the general observation of this book (and this chapter), namely ‘that the relationship between 9

In classical sociology, for example in the work of Durkheim, the connected question was raised of what came first: individuals or society. Although individuals make and remake society, for the purpose of social scientific inquiry it is necessary to presuppose society’s existence – at least that is how most structural schools of thought will argue. This is however strongly opposed by Actor-Network theorists, notably Bruno Latour. See, for example Bruno Latour, Reassembling the Social: An Introduction to Actor-Network Theory (Oxford University Press 2005).

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politics and law varies in important ways depending on the sites where the relationship unfolds’. The editors introduce the very helpful notions of ‘stages of governance’ and ‘governance systems’ to further differentiate and explore this varying law-politics interface.10 In this chapter, I am mainly concerned with the variation of the law-politics interface in different stages of governance as the focus is on one governance system. More concretely, this chapter analyses the evolution of the European Court of Human Rights (ECtHR/Court) and its underlying Convention, the European Convention on Human Rights (ECHR/Convention), using the five stages of governance identified by the editors: (1) rulemaking; (2) interpretation; (3) decision-making; (4) implementation; and (5) legal change. The chapter addresses additional governance systems by analysis of the incorporation of the ECHR into national law in the member states and the interplay of European and national law and politics. The empirical data and general empirical analysis used in the chapter is derived from a set of previous publications on the development of the ECtHR,11 in particularly a recent paper that outlines the entire evolution of the ECtHR since its genesis.12 The novelty in the analysis is thus not the empirical findings as such but rather the conclusions with regard to the law-politics interface that can be drawn using the framework of stages of governance provided by the editors on this pre-existing empirical analysis. The aim is thus not a renewed empirical exploration of the evolution of the ECtHR but instead to analyze and theorize further its law-politics interface. In what follows, I have structured the analysis around my pre-existing analysis of the evolution of the ECHR regime and therefore follow the periodization of the ECtHR/ECHR’s development identified elsewhere. I start with the negotiation of the ECHR and then trace the institutionalization and legalization of the Convention as it has unfolded over the past 10

Sandholtz and Whytock (n 8). Mikael Rask Madsen, ‘From Cold War Instrument to Supreme European Court: The European Court of Human Rights at the Crossroads of International and National Law and Politics’ (2007) 32(1) Law & Social Inquiry 137; Mikael Rask Madsen, La Genèse De L’europe Des Droits De L’homme: Enjeux Juridiques Et Stratégies D’etat (France, Grande-Bretagne Et Pays Scandinaves, 1945-1970) (Presses universitaires de Strasbourg 2010); Mikael Rask Madsen, ‘Legal Diplomacy – Law, Politics and the Genesis of Postwar European Human Rights’ in Stefan Ludwig Hoffmann (ed), Human Rights in the Twentieth Century: A Critical History (Cambridge University Press 2011). 12 Madsen, ‘The Challenging Authority of the European Court of Human Rights’ (n 1). 11

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60 years. Throughout the analysis I highlight and analyze the different ‘stages of governance’ suggested by the editors (see above). In the conclusion, I will return to the more theoretical questions that are prompted by this analysis with regard to the proposed framework of the editors. As part of this, I will open up the debate further by adding a third dimension to the analysis, namely the social or societal dimension to the understanding of the evolution of IL and international courts (ICs) briefly discussed above.

1. LAW AND POLITICS IN THE MAKING OF THE EUROPEAN COURT OF HUMAN RIGHTS The following analysis is split into two major parts covering, respectively, the Cold War period (1950–1989) and the post-Cold War period (1990– present). Each of the two larger periods is further divided into two sub-periods. As to the Cold War period, the chapter first analyzes the period 1950–1974 in which the European human rights system had not yet autonomized as a legal and judicial system and the undertaking was generally marked by both explicit and implicit politicization. In the following period, 1975–1989, the court turned around and launched a programme seeking a practical and effective international protection system in Europe. The second period (1990–present) is also divided into two sub-periods. In the first, 1990–1999, the Court, with a growing case load, notably took on some of the larger Western European member states in an expansive jurisprudence that firmly established the ECtHR as the region’s de facto supreme court of human rights. Second, during the period 2000–present, the Court faced first the doubling of the number of member states by the influx of Eastern European countries with significant human rights problems and most recently the growing discontent in the member states over the Court’s alleged intrusion into domestic political affairs. In all four periods, I explore the development of the Convention and Court in light of the framework of ‘stages of governance’. I do not in every case address all five features of the framework but rather identify and analyze the most pertinent ones for the period under consideration.

2. A COLD WAR PROJECT TAKING A LEGAL FORM: THE ECHR AND THE ECTHR (1950–1979) Rulemaking was the first and decisive step in the creation of the ECHR. And what came to influence the negotiation of the ECHR the most was

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the changing geopolitical winds of the late 1940s. For many, the ECHR appeared like a natural continuation of the processes that had already unfolded at the United Nations (UN) during the drafting of the 1948 Universal Declaration of Human Rights (UDHR), a document that itself was prompted by the immediate past of the Second World War and the observed inability of international organization and law to hinder the rise of Nazism. However, the moment of relative convergence that enabled the institutions of the new world order to take form was brief and rapidly substituted with the rising East-West tensions, the Iron Curtain and what eventually became known as the Cold War. It is at this moment the ECHR enters the picture. Although the immediate past of the atrocities of the Second World War is still present – many of the key negotiators had been part of the resistance to the Nazis – the vocabulary and the examples evoked during the negotiation refer mainly to the Cold War. Scholars have argued that European governments embraced the Convention and the ECtHR, in part, to ‘lock in’ liberal democratic ideals into the Western European form of government.13 But although defending ‘Free Europe’ was a key driver in the drafting of the Convention, states generally assumed that the cost of ratifying the treaty was low. Indeed, the original Convention provided a flimsy padlock that was easily broken: ratification did not require accepting the ECtHR’s jurisdiction or the right of individual petitions, through which individuals could submit claims to the European Commission of Human Rights. Instead, both features, which later became trademarks of the European human rights regime, were optional at the time. The judicialization of the Convention depended, therefore, on each state’s acceptance of these optional provisions. The optional nature of important parts of the agreement – introduced as a necessary compromise during negotiation of the European human rights system – deeply influenced the authority and practices of the ECtHR until the mid-1970s. In terms of rulemaking, what can be observed is a compromise between the mobilization of actors, notably veterans of the resistance movements and the allied forces, many of whom were part of a growing European integration movement, and the real political interests of the negotiating member states. Although the states saw the project to be worthwhile in light of the growing tensions stemming from the East-West conflict, they were in practice happy with a strong statement without too many legal commitments. The result was hardly an optimal mix of 13 Andrew Moravcsik, ‘The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe’ 2000 54(2) International Organization 217.

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interests and other stakes in the negotiation. In fact, the final product – the 1950 European Convention – hardly came across as the kind of crown jewel of European integration as it was later presented. At the ceremony of signature Paul-Henri Spaak, the Consultative Assembly’s President, observed: ‘It is not a very good Convention, but it is a lovely Palace!’ The palace in question was the imposing Palazzo Barberini in Rome.14 Perhaps more important to this analysis was the fact that the not-so-good Convention in reality did not constitute the final political compromise but rather a framework that would be renegotiated continuously in years to come. As early as 1952 the First Protocol to the Convention, introducing the rights to education, possessions and free elections to the legislature, was introduced and many would follow in what can best be described as an ongoing negotiation. The immediate legal consequence of the original treaty design was that European states could choose only to accept the jurisdiction of a quasi-judicial institution, the European Commission of Human Rights.15 Under the Commission’s jurisdiction, the right of individual petition was optional, and ratifying the Convention only resulted in the Commission’s compulsory jurisdiction over interstate complaints.16 Further weakening the legal dimension of the system, the recommendations of the Commission were not legally binding unless the Committee of Ministers accepted them.17 Thus, recommendations were principally controlled by an interstate political body rather than an independent legal body.18 The Commission, however, had the power to bring a case before the Court if the state in question had accepted the Court’s jurisdiction and the case could not be settled by conciliation.19 Individuals had no such option, whereas states could choose to refer a case to the Court if they had accepted its jurisdiction.20 As a result of this institutional design, the Commission rather than the Court initially became the key institution in the European human rights system. By filtering applications and deciding which cases 14

David Maxwell Fyfe, Political Adventure: The Memoirs of the Earl of Kilmuir (Weidenfield & Nicolson 1964) 183–4. 15 Convention for the Protection of Human Rights and Fundamental Freedoms [Convention] (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 222, arts 25, 46. 16 ibid art 25. 17 ibid art 31. 18 The Committee of Ministers also oversaw respondent states’ implementation of decisions by the Court and Commission. See ibid, art 32. 19 ibid art 48. 20 ibid.

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to review on the merits or refer to the ECtHR, the Commission became the central Strasbourg institution and therefore a critical player in building the system’s authority. Ratified by ten member states, the Convention became legally binding in 1953.21 In 1955, a number of smaller countries – Sweden, Ireland, Denmark, Iceland and Belgium, along with the Federal Republic of Germany – accepted the provision on individual petition. By 1958, the necessary eight optional acceptances of the Court’s jurisdiction had been submitted, once again by a group of smaller countries: Ireland, Denmark, the Netherlands, Belgium, Luxembourg, Austria and Iceland, together with the Federal Republic of Germany. It was the support of smaller European countries that ensured the initial establishment of the Convention’s oversight system. Conversely, the two major European imperial powers, France and Britain, which together with Italy had the greatest influence on the drafting of the Convention, both initially abstained from accepting the right of individual petition and the jurisdiction of the Court.22 Moreover, the fact that states assenting to these optional clauses typically did so only for three or five years at a time combined with the reluctance of key member states to commit to a European-level review of their human rights practices, put the entire system in a fragile situation.23 Consequently, both the Commission and the nascent Court needed to prove themselves to reticent governments in order to secure the institutions’ continuous operation. Within the framework of this book, this meant that when the Commission and Court were to make their first interpretations of the Convention, they did this in a deeply politicized space and knowing that false starts could well mean the implosion of the system. For a new, fragile human rights system in search of authority and increased member state support, the first cases to reach Strasbourg were hardly ideal. Filed in 1955, the Commission’s first case, Greece v United Kingdom,24 was an interstate dispute between two North Atlantic Treaty Organization (NATO) allies, Greece and the United Kingdom, at the 21 The original ten member states of the European Convention were: the United Kingdom, Denmark, Germany, Greece, Iceland, Ireland, Luxembourg, Norway, the Saar and Sweden. 22 A.W. Brian Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (Oxford University Press 2004). 23 A.H. Robertson, ‘The European Court of Human Rights’ (1960) 9(1) The American Journal of Comparative Law. 24 See generally Greece v United Kingdom App no 176/56 (Commission Decision, 1959).

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height of both the Cold War and decolonization. The issue involved the rights of Greek insurgents in Cyprus. Britain had extended the reach of the Convention to cover some of its colonial possessions, including Cyprus, yet by not accepting individual petition or the Court’s jurisdiction, it was assumed by the Foreign Office that this extension was a merely symbolic gesture.25 Greece’s interstate complaint effectively bypassed this careful British evasion of the Convention system. Coming to terms with being sued by a NATO ally, the UK Foreign Office eventually defended its actions as a necessary response to the emergency situation on the island. The Commission resultantly investigated both the alleged violations and the emergency situation.26 The ambiguity in what role European human rights should play in the politics of the member states is strikingly clear from Greece v United Kingdom. In response to the imminent investigation by the Commission, the British Foreign Office analyzed every member of the Commission delegation. Although this assessment was only for internal use, it clearly revealed the British officials’ disdain for the nascent system. Although Waldock of the United Kingdom and Professor Sørensen of Denmark both received favorable reviews as ‘the only members of real caliber’, practically every other Commission member was regarded with scorn.27 For example, the Italian Dominedo was described as a ‘garrulous and rather ridiculous individual’, and the French Pernot as ‘quite capable of supporting the British case in the morning, the Greek in the afternoon, and a compromise of his own making in the evening’.28 In practice, the Foreign Office used its intelligence to sabotage the Commission’s visit to Cyprus, on numerous occasions allowing only Sørensen and a few others access to files and facilities.29 But when British efforts seemingly failed to avoid an embarrassing showdown in Strasbourg with this cast of apparently unfriendly European jurists, the United Kingdom eventually solved the case by diplomacy.30 In 1959, Britain gave up its colony, and no further action was called for in Strasbourg – a result viewed with some relief by all parties.31 25

See Simpson (n 22) 838–41 (discussing the relationship between extending the Convention yet limiting access to use the Convention). 26 Convention (n 15), art 15. 27 Simpson (n 22) 944. 28 ibid. 29 ibid 991. 30 ibid 1049–52. 31 UNGA Res 59/32 (1 December 2004).

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Also in 1959, the ECtHR was finally ready to receive cases. Mirroring the Commission’s experience, the Court’s became embroiled in high politics in its first dispute. The 1959 Lawless32 case concerned the practice of detention without trial in Ireland during an IRA insurgency, a matter also of British interest.33 The European Commission and the Court both found that the practice violated Article 5 of the ECHR.34 Yet the Court also found that the Irish Government was acting in conformity with the Convention because, under the treaty’s derogation clause, the ‘life of the nation’ was threatened.35 Although the outcome of the case once again pleased governments, the Court nevertheless asserted the power to decide precisely when such situations of emergency existed – a small but important step for the Court. The Irish and Greek cases are illustrative of the legal-diplomatic nature of the Convention system at this point in time as it developed in response to the intense legal-political interface. The Court and Commission had to strike a fine balance between developing the Convention and simultaneously persuading reluctant governments of the institutions’ sensitivities to complex domestic sociopolitical contexts.36 Both the Commission and the Court found violations in very few cases and gained the image of being minimalistic and even state-friendly in their operations.37 Statistically, the Commission played a significant gatekeeping role: it decided whether or not to refer an individual complaint to the Court.38 Through this structure, the Commission in part controlled the development of the Court’s jurisprudence.39 Equally important was the Commission’s power to screen applications. Of the 713 individual complaints received by the

32 Lawless v Ireland App no 332/57 Series B no 1 (ECtHR, 1960) 3 [hereinafter Lawless] (alleging that ‘in his Application that there has been a violation of the Convention in his case, by the authorities of Ireland, inasmuch as he was detained without trial’). 33 See e.g., Madsen, ‘From Cold War Instrument to Supreme European Court’ (n 11). 34 Lawless (n 32). 35 Convention (n 15), art 15. 36 See generally The Greek Case App no 3321/67, 3322/67, 3323/67 and 3344/67 (Commission Decision, 1969); see also Madsen, ‘Legal Diplomacy – Law, Politics and the Genesis of Postwar European Human Rights’ (n 11) 78–79. 37 ibid 76. 38 Convention (n 15), art 48. 39 Member states that had accepted the jurisdiction of the Court could equally appeal to the Court. See ibid.

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Commission from July 1955 to March 1960, 710 were rejected.40 During the next decade only 54 cases were declared admissible out of some 3,600 applications.41 And of this small number of admitted cases, the Commission found violations of the Convention in only a handful.42 Consequently, among potential litigants, the Commission gained a reputation for dismissing cases.43 The situation at the Court was even more striking. During its first decade of operation, 1959 to 1969, the Court was involved in only ten cases.44 In fact, after the Lawless and De Becker 45 cases, the Court was practically without work during the mid-1960s, which led some to question whether it should be shut down due to inactivity.46 Only toward the end of the decade did the Court slowly start gaining renewed public and political prominence. When the governments of Denmark, Norway, Sweden and the Netherlands simultaneously filed interstate complaints for very serious violations of the Convention against the Greek colonels who had seized power in Greece,47 the system’s role as the guardian of freedom was symbolically reinstated.48 The case received significant press coverage and ended with the withdrawal of Greece from the Council of Europe.49 It also showed, however, that the balance between

40 Gordon L. Weil, ‘Decisions on Inadmissible Applications by the European Commission of Human Rights’ (1960) 54(4) The American Journal of International Law 874. 41 Mark Janish, Richard Kay and Anthony Bradley, European Human Rights Law: Texts and Materials (Oxford University Press 2000). 42 ibid. 43 ibid. 44 See Madsen, ‘Legal Diplomacy – Law, Politics and the Genesis of Postwar European Human Rights’ (n 11) 74. 45 De Becker v Belgium App no 214/56 (Commission Decision, 1962). 46 See, e.g., Henri Rolin, ‘Has the European Court of Human Rights a Future’ (1965) 11(2) Howard Law Journal 442. This led to discussions of new competences of the Court. For example, Protocol No. 2 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 44, 21 September 1970, conferred upon the ECtHR the power to give advisory opinions. 47 See generally The Greek Case (n 36). 48 Mikael Rask Madsen, ‘The Protracted Institutionalisation of the Strasbourg Court: From Legal Diplomacy to Integrationist Jurisprudence’ in Mikael Rask Madsen and Jonas Christoffersen (eds), The European Court of Human Rights Between Law and Politics (Oxford University Press 2011). 49 As Shai Dothan has argued, it is hard to imagine a similar scenario to the earlier case of Lawless, when the Court was much weaker, and the opposition and member states were much stronger. See Shai Dothan, Reputation and

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internationally legalized human rights and Cold War political objectives created divisions within the system. Although a number of smaller countries with strong democratic records used the Greek case to advocate for an idealist approach to human rights, the larger member states – notably the United Kingdom, France and Germany – were reluctant because they feared that isolating Greece would jeopardize the Greek commitment to NATO.50 Considering both the number of applications as well as the diversity of applicants from states to individuals during this early period, there is little doubt that relevant legal constituencies were aware of both the Court and the Commission. Yet the European human rights system was not highly esteemed in all camps. Because of the system’s reluctance to admit cases or to find violations, lawyers and activists generally saw little use in going to Strasbourg.51 The obvious spokesmen for the Convention – the part-time judges and commissioners in Strasbourg – were only haphazard advocates for the system when fulfilling their national roles.52 Finally, the judgments of the ECtHR were so fragmented and specific that most member states and lawyers did not consider them as having an effect beyond the litigating parties. The situation – defined as narrow authority in the theoretical framework of Alter, Helfer and Madsen53 – suggests that the law-politics interface at this moment was mainly limited to the immediate partners of specific international litigation.

Judicial Tactics: A Theory of National and International Courts (Cambridge University Press 2014). 50 In fact, the Greek junta benefited more generally from Western support, including US support, as, out of a pure Cold War logic, the colonels were seen as a guarantee that the country would not move toward a neutral or pro-Soviet position. See, e.g., Alexandros Nafpliotis, Britain and the Greek Colonels: Accommodating the Junta in the Cold War (IB Tauris 2012). 51 For details, see Madsen, La Genèse De L’europe Des Droits De L’homme (n 11). 52 The civil servants of the ECHR institutions and a group of judges and commissioners were the main promoters of the system in its initial years of operation. See Stéphanie Hennette-Vauchez, ‘The ECHR and the Birth of (European) Human Rights Law as an Academic Discipline’ in Bruno de Witte and Antoine Vauchez (eds), Lawyering Europe: European Law as a Transnational Social Field (Hart Publishing 2013). 53 Karen J. Alter, Laurence R. Helfer, and Mikael Rask Madsen, ‘How Context Shapes the Authority of International Courts’ (2016) 79(1) Law & Contemporary Problems.

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The system also suffered from a number of external structural limitations. First, the broader geopolitical contexts in which it operated – the Cold War and decolonization – were not conducive to establishing authority and legal autonomy because they put key member states, notably the United Kingdom and France, in risky political situations. Second, the very notion of human rights law was ambiguous and was more often associated with politics than law, partly as a consequence of the linkage between international human rights and the Cold War,54 and partly because many European legal systems did not have a developed human rights jurisprudence. These structural limitations resulted in a Court that attracted complaints but failed to cast a legal shadow beyond the particular case-bycase interventions. Also, it implied that the Court (and Convention) did not matter politically beyond these narrow circles of actors.

3. BEYOND POLITICS: THE EMERGENCE OF THE ECTHR AS A POWERFUL INTERNATIONAL COURT (1975–1989) The Court’s legal and political role changed over the following 15 years, rapidly metamorphosing the Court from a politically dominated institution to a court with real teeth and extensive authority. In this process, the initial minimalistic approach of the Strasbourg system paradoxically constituted an advantage. Major European powers’ failure to fully accept the jurisdiction of the Court and the right of individual petition had turned the institutionalization of the ECtHR into a ‘game of cat and mouse’ in which the Court was being dragged around by the member states.55 Although the immediate consequence of this limited external recognition of the ECtHR was its fragility as an institution and limited legal shadow, the Court’s minimalistic approach to the Convention also

54 See generally Mikael Rask Madsen, ‘Human Rights and the Hegemony of Ideology: European Lawyers and the Cold War Battle over International Human Rights’ in Yves Dezalay and Bryant Garth (eds), Lawyers and the Construction of Transnational Justice (Routledge 2012); see also Howard Tolley, The International Commission of Jurists: Global Advocates of Human Rights (University of Pennsylvania Press 1994). 55 Anthony Lester, ‘The European Court of Human Rights after 50 Years’ in Jonas Christoffersen and Mikael Rask Madsen (eds), The European Court of Human Rights between Law and Politics (Oxford University Press 2011).

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had a positive side effect: more and more governments accepted the Court and the right to individual petition because they simply did not fear the Court’s influence.56 The United Kingdom did so for three years starting in 1966 based on precisely such an assessment.57 This assessment was not unique to Britain – in 1973, both Italy and Switzerland followed suit. The next year, with the fading memory of the war in Algeria, France finally ratified the Convention and accepted the Court’s jurisdiction, although individual petition was accepted only much later, in 1981.58 The democratization of Greece, Portugal and Spain also brought these countries into the ECtHR protection system in 1974, 1978 and 1979 respectively.59 In terms of the decision-making of the larger European member states it is very clear that these decisions were driven by calculations of the political and legal costs of committing to the system in the context of the assumption that the cost was very low. Three further exogenous structural factors influenced this decisionmaking on behalf of the member states. First, the originally limited space for developing the Strasbourg system was mainly due to geopolitical constraints deriving from Cold War politics as argued above. That made lawsuits between NATO allies – and corresponding denunciations of NATO countries as violators of human rights – very damaging to the collective interest of Western Europe. This particularly influenced the decision-making of the larger political and military powers of Western Europe. By the early 1970s, however, the Cold War seemed to be in retreat: détente politics became the name of the game. Second, decolonization was virtually over by the early 1970s, at least for the larger colonial possessions, which made the international positions of France and the United Kingdom much less at risk.60 A structural change in human rights discourse also occurred around this time, with the focus of the discourse moving from the practices of European imperial powers to

56 ibid 551–62; Madsen, ‘The Protracted Institutionalisation of the Strasbourg Court’ (n 48). 57 Lester (n 55). 58 ibid. 59 The only countries that had accepted neither the individual petition nor the Court were Turkey, Greece, Malta and Cyprus. 60 See generally Dietmar Rothermund, The Routledge Companion to Decolonization (Routledge 2006); Martin Shipway, Decolonization and its Impact: A Comparative Approach to the End of the Colonial Empires (Wiley 2007).

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other perpetrators such as military dictatorships in Latin America, the apartheid regime in South Africa, and Eastern Europe’s Helsinki Process.61 A third factor that influenced the ECtHR during this period was European integration writ large. Whereas the initial Strasbourg jurisprudence was very case-specific, after 1975, the idea of a Europe of common standards made its entrance as an additional justification for more progressive human rights developments. The standards in question were, however, not the common-market ideas of the European Community but values derived from sociopolitical developments of the more permissive and less patriarchal society that was taking form in many European countries.62 In other words, changes in geopolitics and social politics opened up a new space for developing a jurisprudence that sought to couple European human rights with intra-European societal developments. And, importantly, that in a context where the member states generally viewed the Court as non-threatening. These combined factors had almost immediate effect. The ECtHR’s burgeoning power during this period is particularly apparent from its legal practices that shifted the law-politics balance between the Court and the member states. Generally, the jurisprudence of the last half of the 1970s set a new tone – a dynamic championing of European human rights – that was very different from the self-constrained legal diplomacy of the previous period. In a series of landmark decisions, the Court fundamentally transformed European human rights from a project mainly linked to Cold War objectives to both an independent mission of setting common standards across Europe and a quest for real protection of human rights under the ECHR.63 In the late 1970s, the framework for this distinctively European protection of human rights was hammered out in three key cases: Ireland

61 Madsen, ‘From Cold War Instrument to Supreme European Court’ (n 11); Samuel Moyn, The Last Utopia: Human Rights in History (Belknap Press 2010). 62 The literature is large on this subject but with regard to its impact on the development of rights, see particularly Stuart Scheingold, The Politics of Rights: Lawyers, Public Policy, and Political Change (2nd edn, University of Michigan Press 2004). 63 The Court began this new wave of jurisprudence in Golder v United Kingdom App no 4451/70 Series A no 18 (ECtHR, 1975) [hereinafter Golder]; National Union of Belgian Police v Belgium App no 4464/70 (1975) 1 EHRR 578; Handyside v United Kingdom App no 5493/72 Series A no 19 (ECtHR, 1976); Kjeldsen, Busk Madsen and Pedersen v Denmark App no 5095/71, 5920/72, 5926/72 Series A no 23 (ECtHR, 1976).

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v the United Kingdom;64 Tyrer v the United Kingdom;65 and Airey v Ireland.66 The Irish case offered ECtHR judges a chance to revisit the tricky question of national emergencies, an issue for which the Court had previously shown great deference to the member states in the Lawless case.67 The case was a controversial interstate complaint against the United Kingdom concerning five interrogation techniques used by British security forces in Northern Ireland.68 The Court held that these practices could not be justified by merely citing a national emergency.69 The Court found that the interrogation techniques in question violated the nonderogable Article 3 of the ECHR, which prohibits inhuman and degrading treatment – a provision that must be respected even in situations of political unrest and violence.70 In the same year as Irish, the ECtHR decided Tyrer v the United Kingdom, a case concerning corporal punishment of an underage pupil.71 The Court famously stated that the Convention was ‘a living instrument … [to] be interpreted in the light of present-day conditions … and commonly accepted standards in the … member states’.72 This set the stage for the Court’s later use of a highly controversial, dynamic interpretation of the ECtHR. The following year, in Airey v United Kingdom, the Court further extended its reach by noting that ‘[t]he Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective’.73 Somewhat similar to the jurisprudence of the European Court of Justice in its formative period,74 the ECtHR managed to devise a tripartite framework that 64 Ireland v the United Kingdom App no 5310/71 Series A no 25 (ECtHR, 1978) [hereinafter Irish]. 65 Tyrer v the United Kingdom App no 5856/72 Series A no 26 (ECtHR, 1978) 12 [hereinafter Tyrer]. 66 Airey v Ireland App no 6289/73 Series A no 32 (ECtHR, 1979) 9 [hereinafter Airey]; see also Marckx v Belgium App no 6833/74 Series A no 31 (ECtHR, 1979) (ruling out distinction between legitimate and illegitimate children and imposing a positive obligation on member states). 67 Lawless (n 32). 68 ibid. 69 ibid. 70 ibid. 71 Tyrer (n 65). 72 ibid. 73 Airey (n 66). 74 See J.H.H. Weiler, ‘The Transformation of Europe’ (1991) 100(8) The Yale Law Journal 2403 (arguing that in the foundational period of European law, from 1958 through to the mid-1970s, the European Court of Justice created a

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consisted of non-derogable rights,75 dynamic interpretation76 and the requirement of an effective and practical protection of rights by the member states.77 The decisions were not all unanimous or easily swallowed by the respondent countries, but they made a strong claim for the Court being the authoritative interpreter of the Convention. The impact of these bold decisions was legal change in the long run but the immediate effect was that it attracted more litigants towards the Court in Strasbourg. Overall, in 1976 a pattern of growth began in the number of cases under the Court’s review. Figure 9.178 shows the total number of judgments delivered each year from 1960 to 1989. The cases since 1976 are marked by a darker color. 35

32

30

26 25

25 18

20 15

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10 5

3 2 2 2 2 1 2 1 1 1 1 2

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6 5 5 7 7

1960 1961 1962 1967 1968 1969 1970 1971 1972 1973 1974 1975 1976 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989

0

Figure 9.1 Judgments delivered (1960–1989) The jurisprudence that developed throughout the 1980s is further indicative of the expansion of European human rights. Particularly important is the decrease in the relative frequency of high political interstate complaints and the corresponding increase of the Court’s involvement in

constitutional framework consisting of direct effect, supremacy, implied powers and human rights). 75 Irish (n 64). 76 Tyrer (n 65). 77 Airey (n 66). 78 All data reflected in the figures included in this chapter have been generated by using the database at iCourts.

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other social issues of a more low political nature.79 As a consequence of this change in the law-politics interface, the institution was less tied up with highly political cases and could continue to develop its jurisprudence incrementally under the auspices of these less controversial cases.80 The development of the Court’s authority and its more powerful imposition on the member states is well illustrated in cases such as Sunday Times v United Kingdom, which held that freedom of the press is ‘necessary in a democratic society’;81 a fast-growing number of liberty82 and due-process83 cases; and, emblematically, Soering v the United Kingdom, in which the Court aligned itself with popular European sentiments against capital punishment to hold that extradition to the United States would violate Article 3 of the ECHR if the applicant would face the death row phenomenon, that is, the emotional distress felt by prisoners on death row for an extended period of time.84 The Soering case suggests a broadening of the Court’s authority and a new and different alignment between the ECtHR’s practices and the foreign policy goals of the member states. This, however, was more of a one shot case on a very particular issue than a general development. As a matter of fact the extra-territoriality of the Convention that followed from this would cause very serious problems for the member states in the subsequent period. Further, although the Court became more active during this period, a very important finding with regard to the lawpolitics interface is that the result of this new jurisprudence was uneven among the different member states. Differentiating the number of cases according to respondent state during the period from 1975 to 1989 reveals that relatively few countries had numerous cases – such as the 79

During this period, in addition to the Irish case, there were three other interstate complaints: Austria v Italy App no 788/60 (Commission Decision, 1961); Cyprus v Turkey I-III App no 6780/74, 6950/75 (1983) 2 DR 125, App no 8007/77 13 DR 85 [hereinafter Cyprus]; and Denmark, France, Norway, Sweden, and the Netherlands v Turkey App no 9940–9944/82 (1983) 35 DR 143 [hereinafter Denmark]. 80 Reviewing the entire dataset of case law until the late 1980s, structural problems of human rights were not yet part of the Court’s caseload, with the exception of the Irish case, which highlighted the broader situation of law in Northern Ireland. 81 Sunday Times v The United Kingdom App no 6538/74 Series A no 30 (ECtHR, 1979) 22. 82 Convention (n 15), art 5. 83 ibid art 3. 84 Soering v the United Kingdom App no 14038/88 Series A no 161 (ECtHR, 1989) 24.

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United Kingdom, with 46 cases – and a number of other countries had few or no cases. Figure 9.2 provides data on all states with cases before the ECtHR during this period,85 reporting both the total number of cases against each member state and the number of cases finding violations. 50 45 40 35 30 25 20 15 10 5 0

46

23 22

23

17 13 14 10

17 9

Figure 9.2

12 5 1

6 2

8 34

45

Violations

15 10 10 6

Total

22

Cases by country (1975–1989)

As a result of this uneven distribution of cases across member states, the Court and Convention played significant roles in some states and very limited roles in others. Illustratively, Denmark, for example, did not experience a single violation in Strasbourg for 36 years: from 1953 to 1988,86 European human rights law played practically no role in domestic Danish law and politics.87 Cases brought against Denmark were dismissed, with only limited exceptions, for which no violations were found. Equally important, the Danish government concluded that very 85

Figure 9.2 excludes Commission cases and countries without cases before the ECtHR during this period, most notably Norway, Cyprus, Malta, Greece and Iceland. 86 Denmark was finally found in breach of the Convention in 1989 in Hauschildt v Denmark App no 10486/83 Series A no 158 (ECtHR, 1989) [hereinafter Hauschildt] (concerning impartiality of single-judge provincial courts in criminal proceedings). See generally Jonas Christoffersen and Mikael Rask Madsen, ‘The End of Virtue? Denmark and the Internationalisation of Human Rights’ (2011) 80(3) Nordic Journal of International Law 257. 87 ibid (arguing that European human rights was practically dealt with as matter of foreign policy).

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few legislative revisions were required to conform Danish and European human rights standards – with the exception of securing a minimum level of protection of the (negative) freedom of association within respect to ‘closed-shop’ unions due to the Court’s ruling in Young, James and Webster v United Kingdom. Not until 1989, in the Hauschildt 88 case, concerning impartiality of single-judge provincial courts in criminal proceedings, was Denmark found to be in breach of the Convention. The ECHR was long viewed mainly as a tool for the country’s international engagement. Illuminatingly, Denmark once again joined forces in 1982 with the other Scandinavian states, as well as the Netherlands and France, in another interstate complaint, this time against Turkey.89 And this perception of the ECHR was not unique to Denmark. Other states party to the Convention continued to regard the Strasbourg system as a positive but distant institution, essentially international and therefore of little domestic importance.90 In stark contrast to Denmark and the extremely limited law-politics interface of this case, the United Kingdom became ‘the most regular customer in Strasbourg’ throughout the 1980s.91 Although there had been some warnings in the two interstate cases involving Cyprus92 and Ireland,93 as well as the individual petition cases of Golder,94 Tyrer 95 and Airey,96 it was still assumed in the Foreign Office that the United Kingdom’s relationship to international human rights was that of exporting legal norms rather than importing them.97 Yet as a consequence of the ECtHR’s multiple findings of UK violations of the Convention – 22 from 1975 to 1989 – the continuous acceptance of ‘the right to individual 88

Hauschildt (n 86). Denmark (n 79). 90 See, e.g., Malcolm Langford and Johan Karlsson Schaffer, ‘The Nordic Human Rights Paradox’ (2014) University of Oslo Faculty of Law Research Paper no 2013. 91 Interview with Senior Legal Advisor in the British Foreign Office (8 May 2001). 92 Cyprus (n 79). 93 Lawless (n 32). 94 Golder (n 63). 95 Tyrer (n 65). 96 Airey (n 66). 97 See generally Mikael Rask Madsen, ‘France, the UK and “Boomerang” of the Internationalization of Human Rights (1945–2000)’ in Simon Halliday and Patrick Schmidt (eds), Human Rights Brought Home: Socio-Legal Perspectives on Human Rights in the National Context (Hart Publishing 2004) 80–2. 89

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petition came up as a real question’ at the highest political level.98 But emblematic of the situation at the time – and in sharp contrast to the current Conservative British government – the Thatcher government’s response was that ‘the U.K. was not to pull out, but the Court to pull back’.99 But behind the critical public rhetoric, the United Kingdom generally took consequential steps to implement lost cases in Strasbourg as well as to take proactive steps to more generally comply with European human rights norms.100 The one exception was Brogan and Others v United Kingdom,101 in which the ECtHR found that the long detention period permitted by the British Prevention of Terrorism Act violated Article 5(3). After expressing anger and sympathy for the victims of terrorism in the House of Commons, Thatcher announced that Britain would refuse to accept the judgment and would derogate from certain provisions of the Convention.102 Although Greece had expressed anger at the Court and Commission, this was the first time a major member state stood up against the Strasbourg system, thereby, rebalancing the relationship between member states and Strasbourg. In more institutional terms, the British government’s frequent interaction with Strasbourg had significant consequences in the legal field. First, it resulted in human rights being ‘domesticated’ and the British Home Office increasingly took over from its Foreign Office.103 Another important consequence was that the UK-Strasbourg interaction triggered the development of specialized human rights lawyers in the United

98 Interview with Senior Legal Advisor in the British Foreign Office (8 May 2001). The 1966 UK decision to accept the jurisdiction of both the European Court and Commission only ran for a specified renewable period until the incorporation into British law of the Convention by the 1998 Human Rights Act. See supra text accompanying n 40. See also Human Rights Act of 1998 (UK), accessed 14 September 2016 at http://www.legislation.gov.uk/ukpga/1998/42/ contents. 99 Interview with Senior Legal Advisor in the British Foreign Office (8 May 2001). 100 Madsen, ‘France, the UK and “Boomerang” of the Internationalization of Human Rights (1945–2000)’ (n 97) 81. 101 Brogan and Others v The United Kingdom App no 11209/84, 11266/84, 11386/85 (1988) 11 EHRR 117. 102 K.D. Ewing and Conor A. Gearty, Freedom Under Thatcher: Civil Liberties in Modern Britain (Oxford University Press 1990). 103 Madsen, ‘France, the UK and “Boomerang” of the Internationalization of Human Rights (1945–2000)’ (n 97) 81.

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Kingdom, a unique situation in Europe at the time.104 Much of this legal activism was directly linked either to the conflict in Northern Ireland or to the increasing rift between the British left and the Thatcher government regarding the protection of civil and political rights, such as the rights to strike, assemble or protest.105 In other words, whereas geopolitics had enabled the ECtHR to pursue a different interpretive strategy since the mid-1970s, it was domestic feuds that fueled the making of a distinct British human rights environment in the 1980s – an environment that would have influence beyond the British Isles.106 The legal establishment, however, had initially been averse to using the ECHR. As one prolific human rights barrister recalled, ‘It was distinctively seen as unfashionable to use the ECHR … even treacherous … one was seen as being in the last ditch or in a hopeless case if you referred to it … I was perceived as a maverick that had an obsession that was un-British …’.107 This reluctance reflected the initial development of the Court and Commission marked by legal diplomacy. But with the entrepreneurial efforts of a handful of key barristers, starting in the mid-1970s, the situation was quickly reversed and these human rights lawyers went on to repeatedly secure victories against their home state in Strasbourg.108 Unsurprisingly, roughly half of the cases against the United Kingdom during the period in focus involved specialized human rights NGOs.109 Due to these and other developments, Britain became the frontier in which the ECtHR acquired most legal and political leverage – and most controversy. That is, the United Kingdom was the first member state in 104 To use the case of Denmark again, only one Danish lawyer specialized in the field, and his practice covered all of Scandinavian human rights. See Mikael Rask Madsen, ’L’emergence D’un Champ Des Droits De L’homme Dans Les Pays Européens: Enjeux Professionnels Et Stratégies D’etat Au Carrefour Du Droit Et De La Politique (France, Grande-Bretagne Et Pays Scandinaves, 1945–2000)’ (2005) (l’École des hautes études en sciences sociales). 105 See generally Ewing and Gearty (n 102). 106 Some NGOs – for example, the National Council of Civil Liberties and JUSTICE – date back much longer, but they only started investing in the ECtHR in the 1980s. See Madsen, ‘France, the UK and “Boomerang” of the Internationalization of Human Rights (1945–2000)’ (n 97) 82. 107 Interview with leading London barrister specializing in human rights (26 February 2001). 108 For details, see Madsen, ‘France, the UK and “Boomerang” of the Internationalization of Human Rights (1945–2000)’ (n 97) 81. 109 Carol Harlow and Richard Rawlings, Pressure through Law (Routledge 1992).

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which the Court had a real, immediate and continuous domestic importance as well as a broader audience. Although the strengthened respect for, and pursuit of, human rights in the United Kingdom had no real counterpart in other member states, the subject had some presence in academia on the continent, where law schools had started to integrate European human rights into the curriculum.110 Human rights centers, most often established on the fringes of legal academia, were an additional innovation of the 1980s. In Britain, the pioneers were at Essex University, which hosted key professors and litigators of European human rights.111 In other countries, notably in Scandinavia, well-funded human rights centers were also set up, but, in line with the general view of human rights as an ‘export good’, they took a broader global perspective.112 Internally focused human rights centers required more time to take root.113 For these reasons, the impact of the ECtHR across the member states varied significantly. There is little doubt, however, that the late 1980s ushered in a new era of broader authority for the ECtHR across more member states. This expanded authority was evident in the Court’s increasingly packed docket, general impact on human rights, and ability to spur broader interest in the field.114 Although a situation similar to the United Kingdom’s increasingly intense interface with the ECtHR did not develop in other Convention member states until the 1990s,115 it was throughout this period that the ECtHR slowly came to be regarded as the central European human rights institution, and one with both legal and political implications.116

4. FROM ENLARGEMENT TO PUSH-BACK: THE ECTHR (1990–2014) After the end of the Cold War, the ECtHR started generally to deliver a significantly higher number of judgments per year, thereby further 110

Madsen, ‘L’emergence D’un Champ Des Droits De L’homme Dans Les Pays Européens’ (n 104). 111 The Essex Human Rights Center would eventually develop into, de facto, the largest human rights law office in Europe, later being the spearhead into what later was known as the Kurdish cases. ibid 554–5. 112 ibid 358–64. 113 ibid. 114 See Figure 9.1 above. 115 See generally Madsen, ‘From Cold War Instrument to Supreme European Court’ (n 11). 116 ibid 154–5.

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legalizing and judicializing European human rights. A particular change occurred between the periods 1990 to 1999 and 2000 to 2014 as both the rate of applications to the Court and the Court’s output expanded substantially after 2000.117 In the first period, the Court continued its trend of the 1980s until about 1999 with a steady increase in the number of judgments, from around 30 in 1991 to 177 in 1999.118 Between 2000 and 2014, this trend accelerated. The Court issued 695 judgments in 2000 and 1624 in 2009.119 The number dropped to 891 rulings in 2014.120 The drop in the annual number of judgments beginning in 2011, however, is a relative one as it is a product of change in policy at Strasbourg to join cases, such that more applications are listed in a single judgment.121 In 2013 and 2014, for example, the Court judged 3661 and 2388 applications but delivered only 916 and 891 judgments, respectively.122 Figure 9.3 provides the number of judgments delivered each year during the period from 1990 to 2014. The two periods (1990–1999; 2000–2014) are indicated with different shading. The obvious geopolitical context for explaining this change is the transformation of Europe following the end of the Cold War. The Council of Europe (CoE) sought to play a role as key agent and welcomed practically all Central and Eastern European countries into the system: from 1990 to 2007 20 new member states, including Russia, joined the CoE and the ECtHR. The integration of new member states with only recently refurbished yet incomplete legal and political systems posed a serious challenge to the Court as it strived to maintain the relatively high human rights standards set in the 1980s and 1990s and to continue its dynamic and expansive approach to the Convention.

117

See Figure 9.3 below. The period after 2000 is marked with darker coloring. 118 ibid. 119 ibid. 120 ibid. 121 The use of so-called pilot judgments on test cases, general measures, and a 2009 priority policy has also influenced output. See European Court of Human Rights, Analysis of Statistics 2012 (2013) 4–5, accessed 14 September 2016 at http://www.echr.coe.int/Documents/Stats_analysis_2012_ENG.pdf. 122 See European Court of Human Rights, Analysis of Statistics 2013 (2014) 4, accessed 14 September 2016 at http://www.echr.coe.int/Documents/Stats_ analysis_2013_ENG.pdf; European Court of Human Rights, Analysis of Statistics 2014 (2015) 5, accessed 14 September 2016 at http://www.echr.coe.int/ Documents/Stats_analysis_2014_ENG.pdf.

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Figure 9.3 Judgments delivered (1990–2014) Closely related to the challenges the massive member state intake precipitated, a major overhaul of the system’s institutional design provides additional context to explain the increase in the Court’s activity described in Figure 9.3. With Protocol No 11’s entry into force in 1998, the ECtHR was transformed into a permanent IC with compulsory jurisdiction and compulsory right to individual petition.123 As part of the institutional overhaul, the Commission was closed down and the supranational protection of human rights in Europe was fully judicialized.124 Importantly, Protocol No 11 was not simply the result of the transformation of post-Cold War Europe.125 In fact, the negotiation was initiated in 1983 when it became apparent that the Commission had difficulties dealing with what was identified as a serious backlog of cases.126 Most of the design choices of Protocol No 11 were therefore prompted by the 123

See Convention (n 15), art 19. See Convention (n 15), Protocol 11 pmbl, (restructuring the control machinery established thereby, 1 November 1998). 125 James A. Sweeney, The European Court of Human Rights in the Post-Cold War Era: Universality in Transition (Routledge 2013). 126 Robert Harmsen, ‘The Reform of the Convention System: Institutional Restructuring and the (Geo-)Politics of Human Rights’ in Jonas Christoffersen and Mikael Rask Madsen (eds), The European Court of Human Rights between Law and Politics (Oxford University Press 2011). 124

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operational contexts of the 1980s and early 1990s. This soon had the consequence that the CoE had to draft additional new protocols to adapt the new, single, permanent court to the operational contexts of the larger Europe which in the meantime had come under the ECtHR’s jurisdiction. To analyze these continuous changes in the Court’s authority, in what follows, I first trace the Court from 1990 to approximately 2000 to show the gradual transition from the original pre-Protocol No 11 Court into the permanent Court. This period is still marked by the Western European orientation of the Court. I then examine the growing discontent with the permanent Court and its rapidly growing backlog of cases and how this criticism culminated around the Brighton Declaration of 2012.

5. TOWARDS AN EMBEDDED HUMAN RIGHTS SYSTEM IN WESTERN EUROPE (1990–2000) As indicated by Figure 9.3 above, the evolution of cases before the ECtHR in the 1990s follows a steady but limited growth pattern that began in the early 1980s. Although Britain was the main violator of European human rights and the frontier of the development of the human rights field in the 1980s, other countries led the charge during the 1990s.127 The United Kingdom saw an overall decline in relative number of cases in Strasbourg whereas Italy, France and Turkey became the most frequent respondent states.128 Italy and Turkey, although quantitatively the most significant countries in terms of the number of judgments against them, are however outliers in the bigger picture. The case of France is more representative of the general transformation of the Court. The law-politics interfaces with all three countries are considered in what follows. Italy was an outlier due to the inability of its legal and political system to respond adequately to the requirements of Article 6, which generated a huge caseload.129 By the early 2000s, judgments against Italy – due in large part to the excessive length of Italian trials – accounted for an average of 45 percent of the total number of judgments delivered by the 127

See Figure 9.3 above. ibid. 129 This was mainly due to the lack of reforms of the judicial system and a reserved attitude towards the ECtHR by the highest courts. Mercedes Candela Soriano, ‘The Reception Process in Spain and Italy’ in Helen Keller and Alec Stone Sweet (eds), A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford University Press 2008). 128

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Court.130 These cases against Italy are important, as it is the first time the Court had to deal with structural human rights problems.131 Although the Italian government generally paid the damages awarded by the ECtHR, the root of the problem – the archaic legal proceedings – was not sufficiently reformed.132 The situation corresponds to the two stages of implementation and legal change of the framework paper. In both cases, however, it is the lack of implementation and legal change that creates the paradoxical situation in which, due to partial compliance, the Article 6 cases from Italy seemed to generate more cases than they resolved. This – structural problems with human rights – would become a more general challenge to the court in the 2000s with regard to more member states, particularly in Eastern Europe. The case of Turkey provides an apt illustration of another new problem facing the ECtHR during this period, namely its role in democratizing countries with ongoing internal conflicts, a situation that also would become well known to the Court throughout the 2000s. Turkey had accepted individual petition and the Court only in 1987 and 1990 respectively, and cases from Turkey did not appear before the Court until the mid-1990s.133 The pattern of cases generally reflects Turkey’s distinctive social, political and legal problems at that time. These problems included the contested status of the Kurds, which caused recurrent cases in Strasbourg, and a set of issues related to the modern Turkish state’s guarantee of basic civil liberties and political freedoms.134 For the first time, in Aksoy v Turkey, the Court found a respondent state in violation of the prohibition on torture.135 Violations of Article 3 were also found in a number of other cases involving the Turkish–Kurdish

130

It subsequently dropped to below 10 percent in 2014. The question of structural human rights problems arises again below when analyzing the integration of the new Eastern European member states. 132 See generally Soriano (n 129). 133 In addition, there were interstate cases against Turkey in 1974, 1975 and 1977. See supra (n 79). In 1983, see Denmark, supra (n 79). And again in 1997, Denmark v Turkey App. No. 34382/97 (ECtHR, 2000). 134 See generally Aisling Reidy, Françoise Hampson and Kevin Boyle, ‘Gross Violations of Human Rights: Invoking the European Convention on Human Rights in the Case of Turkey’ (1997) 15(2) Netherlands Quarterly of Human Rights 161. 135 Aksoy v Turkey App no 21987/93 (ECtHR, 1996) 18. 131

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conflict.136 Due to these and a steady stream of other human rights cases, the total number of judgments directly linked to southeast Turkey from 1996 to 2008 was approximately 175 cases, with another 1500 pending in 2010.137 This was the first time the Court was faced with the challenge of gross and systemic human rights violations.138 Turkey’s problematic assimilation into the ECHR system reveals two things about the law-politics interface in this specific case. First, most of the Kurdish cases would most likely never have been filed were it not for systematic lawyering, facilitated in part by veteran British human rights lawyers. This suggests a linkage between the pioneering human rights constituents in Britain and the local human rights battles in Turkey.139 Second, comparing the situations in Turkey and Italy foregrounds the sociopolitical reality that the Court serves very different functions in these two countries, ranging from the more technical modernization of the Italian judiciary to the democratization of Turkey. The ECtHR’s authority with respect to Turkey is also distinctive because the relevant government agencies have shown little recognition of the Court’s rulings in terms of implementing them. Of the approximately 2400 cases decided against Turkey between 1987 and 2001, of which 87 percent found at least one violation, around 1700 judgments had not been fully implemented as of 2012.140 This strongly indicates the Court’s limited authority with regard to the state institutions, legal and political, in Turkey. Yet the fact that so many cases are directed to Strasbourg suggests conversely the emergence of a legal field in which the European Convention and the ECtHR are increasingly accepted among many audiences as a tool for 136 Rachel Cichowski, ‘Civil Society and the European Court of Human Rights’ in Jonas Christoffersen and Mikael Rask Madsen (eds), The European Court of Human Rights between Law and Politics (Oxford University Press 2011). 137 Bas¸ak Çalı, ‘The Logics of Supranational Human Rights Litigation, Official Acknowledgment, and Human Rights Reform: The Southeast Turkey Cases before the European Court of Human Rights, 1996–2006’ (2010) 35(2) Law & Social Inquiry 311. 138 See generally Reidy, Hampson and Boyle (n 134). 139 See Cichowski (n 136) 89–94 (providing descriptive statistics on this linkage). See also generally Loveday Hodson, NGOs and the Struggle for Rights in Europe (Hart Publishing 2011). 140 Bas¸ak Çalı, ‘Turkey’s Relationship with the European Court of Human Rights Shows that Human Rights Courts Play a Vital Role, but One that Can Often Be Vastly Improved’ (The London School of Economics and Political Science, 14 March 2012), accessed 14 September 2016 at http://blogs.lse.ac.uk/ europpblog/2012/03/14/turkey-echr/.

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legal and social change even though some government agents continue to resist it. This suggests that the law-politics interface is very uneven across the different constituencies involved in these cases and it has to be disaggregated to really be understood. In the bigger picture of the evolution of the ECtHR, Italy and Turkey are both interesting cases because they suggest key futures of the Court. Yet, France is a far more representative case of how the ECtHR generally developed in many European countries throughout the 1990s. France fully entered the ECHR only in 1981, and the first judgments against France were not delivered until the mid-1980s.141 One of the key agents, la Cour de Cassation, the highest French court on civil and criminal matters, originally sought to integrate the ECtHR into its practices.142 In light of this collaborative mood, the French highest courts were surprised – if not offended – when the ECtHR began to criticize not only certain police and administrative practices in France but also the functioning of French courts.143 Counterattacking, the Cour de Cassation launched a rebellion against the Court in response to the rulings of the ECtHR on the impartiality of the general advocates of the Cour de Cassation – a similar situation would occur with regard to the Commissaires du gouvernement of the Conseil d’État – and a number of cases on more technical issues.144 It was a real rebellion in the sense that the French court deliberately ignored the relevant ECtHR case law and, in some instances, ignored the ECtHR cases that had found France to be in violation of the ECHR.145 Yet the use of the ECtHR to attack high courts in France simultaneously spurred an interest among lawyers in challenging the particularities of the French justice system as incompatible with the Convention.146 The ECtHR virtually became an appeals court to the supreme French courts: the number of cases grew steadily and France 141 Elisabeth Lambert Abdelgawad and Anne Weber, ‘The Reception Process in France and Germany’ in Helen Keller and Alec Stone Sweet (eds), A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford University Press 2008). 142 See generally Leslie Goldstein and Cornel Ban, ‘The Rule of Law and the European Human Rights Regime’ (2003) Center for the Study of Law and Society Jurisprudence and Social Policy Program. 143 Madsen, ‘France, the UK and “Boomerang” of the Internationalization of Human Rights (1945–2000)’ (n 97) 78. 144 J.P. Marguenaud, ‘L’effectivité Des Arrêts De La Cour Européenne Des Droits De L’homme En France’ (2001) 24 Journal des droits de l’Homme. 145 Abdelgawad and Weber (n 141) 129. 146 ibid.

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eventually became one of the three most frequent litigators in Strasbourg.147 The response from French judges was that the ECtHR simply failed to grasp the complexity of French justice in the Court’s pursuit of a superficial and formalist attempt to set uniform European standards.148 Regardless of rhetoric, there was little doubt that the ECtHR was becoming both a part of domestic legal reality and a force to be reckoned with in the French legal field at large. In other words, the balance between Paris and Strasbourg was changing. Ultimately at stake in France, as well as in many other European countries during the 1990s, was whether to accept a new, much deeper national implementation of the Convention. The impact of the ECtHR was no longer limited to singular cases in Strasbourg: the Court began to transform more broadly the interface of law and politics through an ever-closer transnational normative web.149 Due to the principle of monism of French constitutional law, which automatically incorporates the country’s international obligations into domestic legal law, the Convention had in principle been applicable domestically from the state’s ratification of the Convention in 1974 – although this had little practical importance as individual petition was only accepted in 1981.150 In most other member states, this domestication of the Convention required a specific legislative act.151 Throughout the 1990s, a growing number of countries incorporated the Convention by legislative acts.152 The main reason for this remarkable shift was arguably the general geopolitical zeitgeist, which favored human rights and neoconstitutionalism both nationally and regionally. With the incorporation of the ECHR into national law, the Convention became embedded in a substantially different way, which implied that national courts could apply the Convention. That domestic courts could apply the Convention almost immediately produced a significant growth in domestic suits that invoked Convention rights and freedoms, which in 147

See Figure 9.3 above. Madsen, ‘France, the UK and “Boomerang” of the Internationalization of Human Rights (1945–2000)’ (n 97) 78. 149 Figure 9.3 above. 150 See, e.g., Abdelgawad and Weber (n 141) 115–16 (explaining the limited effect of the Convention because of French courts’ refusal to review the compatability of French domstic law with regard to the ECHR). 151 For an overview, see Helen Keller and Alec Stone Sweet (eds), A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford University Press 1998). 152 ibid. 148

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turn prompted more petitions to be filed with the Court. The package implemented by national institutions was not only the Convention and national cases that were lost in Strasbourg but also the developing acquis Strasbourgeois, that is, the entire case law of the ECtHR to date. Countries with few or hardly any cases through the late 1980s started having a more steady flow of cases to the Court. But above all, there was massive growth in references to the Convention by national lawyers and, to a lesser extent, judges.153 Institutionally, the ECtHR became a de facto constitutional court for most member states because the Convention – although in most dualist countries only having the status of statutory law – effectively governed human rights at a transnational constitutional level.154 Viewed cumulatively, these trends transformed the undertaking of European human rights, making the Strasbourg system more akin to EU law: directly applicable and with supreme status.155 This striking development also changed how different constituencies engaged with the Court. The combined effects of the institutionalization of European human rights law in state bureaucracies, academic programmes, and the portfolio of lawyers made European human rights an integral part of public and constitutional law across Europe.156 Consequently, the ECtHR gained extensive authority in the vast majority of European countries and became part of the deep constitutional structure of national legal orders. The only real exceptions to this trend were Turkey and perhaps Italy, which were harbingers of the trouble the ECtHR would face in the following decade. Nevertheless, the processes observed throughout the 1990s are generally revelatory of the growing power of the ECtHR which in combination with the implementation strategies of the member states resulted in a much higher degree of legalization and judicialization of European human rights. The kind of legal diplomacy that characterized the Court in previous periods seemed entirely historic. Rather than 153 See generally Madsen, ‘L’emergence D’un Champ Des Droits De L’homme Dans Les Pays Européens’ (n 104). 154 Compare this to the Huneeus argument that neoconstitutionalism was central to human rights in Latin America. See generally Alexandra Huneeus, ‘Constitutional Lawyers and the Authority of the Inter-American Court’ (2016) 79(1) Law & Contemporary Problems. 155 See Laurence Helfer, ‘The Burdens and Benefits of Brighton’ (2012) 1 European Society of International Law Reflections. 156 See, e.g., Stephanie Hennette-Vauchez and Jean-Marc Sorel (eds), Les Droits de L’homme Ont-ils Constitutionnalise Le Monde? (Bruylant 2011); Neil Walker, Jo Shaw and Stephen Tierney, Europe’s Constitutional Mosaic (Bloomsbury 2011).

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accommodating the member states’ legal and political institutions, the Court was willing to face them directly thereby rebalancing significantly the relationships between the national and international levels of law and politics.

6. THE NEW EUROPE AND THE NEW TURN OF EUROPEAN HUMAN RIGHTS (2000–2014) As the new democracies of Eastern Europe were gradually accepted into the Council of Europe during the 1990s and early 2000s, the ECtHR was on a course of increased activity and potential case overload in its role as a de facto constitutional court of European human rights. The effect of new member states on the Court’s output in terms of the number of judgments was not registered until approximately 2005.157 However, the rapidly growing number of applications from new member states, which put the system under stress, was detectable before that. In light of the original Cold War objectives of the Convention, the accession of Russia to the Convention in 1998 was highly symbolic and was seen by many as a strong indication of the system’s success despite scepticism among some founding members. Initially, Russia’s entrance had no significant impact. Most of the first applications – approximately 2000 applications until 2001 – were rejected as inadmissible, often on technical grounds.158 Only after 2004 did the Court deliver a number of high-profile judgments against Russia.159 Almost immediately thereafter, problems with Russian compliance and political discontent arose.160 The percentage of Russian judgments grew steadily over the period, ending at about 15 percent of the total number of judgments. However, several other new member states, for example Ukraine, also count for a significant percentage of the total number of judgments. Moreover, existing members with structural problems – notably Italy and Turkey – also count for substantial percentages of ECtHR judgments. Yet a dramatic change is visible in the growing

157

See Figure 9.3 above. Pamela A. Jordan, ‘Does Membership Have Its Privileges?: Entrance into the Council of Europe and Compliance with Human Rights Norms’ (2003) 25(3) Human Rights Quarterly 660. 159 ibid. 160 ibid 682. 158

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total number of judgments delivered.161 This change is arguably due to both the institutional changes introduced by Protocol No 11 and the doubling of the number of member states. Protocol No 11 was an attempt at rationalizing the operation of the Court in light of a growing backlog of cases. The reform fitted well with the pattern of previous overhauls of the system: in every reform of the ECHR system since 1950 – including all the additional Protocols No 1 to 14bis from 1952 to 2009162 – the member states have chosen either to expand the Court’s jurisdiction or to introduce various technical changes to enhance its capability and capacity to carry out its function.163 There were, however, signs that technical rationalization was inadequate to resolve the new problems faced by the Court. For example, Russia had broken rank in initially refusing to join Protocol No 14 in 2004, which was drafted to reduce the backlog by giving single judges and threemember panels the power to quickly dispose of meritless complaints.164 Russia’s relations with the Court steadily deteriorated from 2004 on: the Duma continuously refused ratification of Protocol No 14 until 2010.165 Though the functioning of the Court had long been considered a matter of technical rationalization, the British offensive with the leaked Draft Declaration before the 2012 Brighton Summit further underscored that the power of the ECtHR was no longer beyond political debate.166 The subsequent Brighton Declaration stands out in comparison with earlier reforms for two reasons: it identified measures for further rationalization of the ECtHR, and it openly raised the political question of the future role of the Court with a series of negative comments on the quality of the 161 See also Figure 9.3 above and explanations of the relative decline after 2009 through 2010 as a result of joining applications as single judgments. 162 See Jonas Christoffersen and Mikael Rask Madsen, ‘Postscript: Understanding the Past, Present and Future of the European Court of Human Rights’ in Jonas Christoffersen and Mikael Rask Madsen (eds), The European Court of Human Rights between Law and Politics (Oxford University Press 2013) 239. 163 ibid 237. 164 Harmsen (n 126) 126–32. 165 With regard to the Court, it was notably the victories of Chechen applicants in, for example, Shamayev and Others v Georgia and Russia App no 36378/02 (ECtHR, 2005) and then Ilasco and Others v Moldova and Russia App no 48787/99 (ECtHR, 2004), about Russia’s role in the breakaway region of Transdniestria, that caused frictions with Moscow. The war between Russia and Georgia, the first ever between two CoE member states, only added to the deteriorating of relations. See Lauri Mälksoo (ed), Russia and European HumanRights Law: The Rise of the Civilizational Argument (Brill 2014). 166 See, e.g., Helfer (n 155).

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judges and their judgments.167 Subsequent Protocols Nos 15 and 16 were explicitly designed to rebalance the system in favor of national levels of law and politics,168 although the actual contents of these Protocols also indicate the Court’s empowerment.169 Above all, the period post-Protocol No 14 suggests a renegotiation of the basic rules of the system and above all a legal change in favor of the national level of law and politics. Thus, although these reforms emphasized reducing the backlog of cases, the reforms also marked the beginning of growing discontent with the ECtHR that united critiques from governments and civil society facing Eastern and Western Europe’s starkly different human rights situations. The United Kingdom’s volte face with regard to the Court is striking. Throughout the 1990s, human rights were embedded into the fabric of British society through New Labour’s attempt at making human rights culture the ethos of multicultural Britain.170 The Human Rights Act of 1998 was thus a crowning moment that transformed the domestic legal status of human rights and started constitutionalizing British human rights law.171 The British turnaround to become increasingly critical of the ECtHR occurred in the aftermath of the War on Terror, when the Court – to Britain’s outrage – stopped deportation of some radical Islamists and terrorists.172 Other more technical cases caused additional political uproar, including Vinters and Others v United Kingdom,173 on the possibility of appeals of life sentences, and Hirst (No. II) v United Kingdom,174 finding that a blanket ban on voting by British prisoners violated the Convention. Although Britain had been found to have violated the Convention in numerous comparably technical cases in years past, the political outrage in Vinters and Hirst stemmed from the ECtHR’s foray into a deeply 167

Brighton Declaration (ECtHR, 2012) paras 23, 25c. See Christoffersen and Madsen (n 162) at 241. 169 See ibid; Helfer (n 155) (arguing that the Brighton Declaration points towards more possible futures of the Court). 170 See Madsen, ‘France, the UK and “Boomerang” of the Internationalization of Human Rights (1945–2000)’ (n 97) 82–4 (demonstrating how human rights became part of mainstream politics and culture). 171 Christopher McCrudden, ‘Common Law of Human Rights?: Transnational Judicial Conversations on Constitutional Rights’ 2000 20(4) Oxford Journal of Legal Studies 499. 172 See, e.g., Conor Gearty, ‘11 September 2001, Counter{Terrorism, and the Human Rights Act’ (2005) 32(1) Journal of Law and Society 18. 173 See generally Case of Vinter and Others v The United Kingdom App no 66069/09, 130/10, 3896/10 (ECtHR, 2013). 174 Hirst v the United Kingdom (No 2) App no 74025/01 (ECtHR, 2005). 168

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polarized political arena. The ECtHR’s involvement in the cases was under intense media coverage that portrayed the Court as effectively overruling legitimate democratic British political decisions and the doctrine of Parliamentary Supremacy.175 This was a battle that was hard to win for the Court. The Hirst case has generated an ongoing tug-of-war between judges in Strasbourg and British officials and politicians. Currently, there is open non-compliance with the Hirst decision and Britain has another 26 cases pending before the Committee of Ministers, the CoE body monitoring compliance with judgments.176 And although Margaret Thatcher previously told the Court to pull back, then Prime Minister David Cameron was threatening more dramatic action: to pull Britain from the Convention altogether. The ECtHR responded to Britain’s pushback with some hesitation in its subsequent jurisprudence. For example, in Scoppola v Italy,177 the Court allowed for the deprivation of prisoners’ voting rights if there is a legitimate aim and deprivation is not automatic. But this hesitation is not driving all of the Court’s decisions. The Court’s vacillation regarding Hirst is readily apparent: while the ECtHR is seemingly seeking to retreat in Scoppola from an overreach in Hirst, Britain has not budged on Hirst, and it intervened very strongly in Scoppola against Hirst. This British pushback in the courtroom, the media and at the political level may well be paying off as the ECtHR is now, seemingly, granting the United Kingdom a wider margin of appreciation – that is, it gives more deference to national decisions.178 As suggested by one ECtHR judge, the new conciliatory approach moves emphasis from substantial individual justice to more abstract procedural justice.179 If the member state can document that it has conducted a transparent review of the problem and the relevant ECtHR case law, and has involved the relevant 175 See, e.g., David Davis, ‘Britain Must Defy the European Court of Human Rights on Prisoner Voting as Strasbourg Is Exceeding Its Authority’ in Spyridon Flogaitis, Tom Zwart and Julie Fraser (eds), The European Court of Human Rights and Its Discontents: Turning Criticism into Strength (Edward Elgar 2013). 176 See Council of Europe Committee of Ministers, ‘Supervision of the Execution of Judgments and Decisions of the European Court of Human Rights’ (2013) 7 Annual Report 1, 100. 177 See generally Scoppola v Italy (No 3) App no 126/05 (ECtHR, 2012). 178 See, e.g., MGN Ltd v United Kingdom App no 39401/04 66 (ECtHR, 2011). See also Oddný Mjöll Arnardóttir, ‘Rethinking the Two Margins of Appreciation’ (2014) (on file with author). 179 See Robert Spano, ‘Universality or Diversity of Human Rights?: Strasbourg in the Age of Subsidiarity’ (2014) 14(3) Human Rights Law Review 487.

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actors, the ECtHR will be less likely to overrule the state’s decision.180 Although the Court’s retreat has been described as ‘qualitative, democracy-enhancing’ in the member states,181 in light of the present analysis it would seem more appropriate to assert that the retreat’s main purpose is most likely to find a means that is legitimacy-enhancing for the Court in the context of its tense interface with the United Kingdom. Consequently, the rights-oriented jurisprudence that became the Court’s trademark in the late 1970s is being supplemented, or replaced, by new forms of strategic judging reminiscent of the legal diplomacy of the early ECtHR. This time, however, dressed up in a outfit of transparency and procedure. Compared to the United Kingdom, the situation in Russia is fundamentally different. On the one hand, Russia exemplifies the problem of structural human rights violations that are also visible in a number of other new member states. There are endemic and unsolved problems with due process, police brutality, prison conditions and freedom of the press, as well as other rights.182 As of 2014, Russia has been the subject of 1604 cases, and the Court found a violation in all but 74.183 Comparatively, in the same period, Ukraine appeared in 1002 cases and only in ten were violations not found. Resembling the situation of Italy and Turkey, the rulings of the ECtHR with regard to a number of new member states seem not to solve the human rights problems at hand but instead highlight them and spur mobilization towards the Court, which engenders further backlog and political tensions. Yet Russia is an exceptional case. The fact that the country has been involved in numerous violent military disputes over territory has raised unprecedented issues relating to interstate conflict – earlier interstate complaints in the Cyprus, Greece, Northern Ireland and Turkey cases never involved interstate war among member states. The Russo-Georgian War in 2008 prompted not only an interstate complaint but also many

180

See, e.g., RMT v United Kingdom App no 31045/10, 366 (ECtHR, 2014); Animal Defenders v United Kingdom App no 48876/08 (2013) 57 EHHR 21; and A, B and C v Ireland App no 25579/05 (ECtHR, 2010). 181 Spano (n 179). 182 See European Court of Human Rights, ‘Violations by Article and by State – 1959–2014’ (2015), accessed 14 September 2016 at http://www.echr.coe.int/ Documents/Stats_violation_1959_2014_ENG.pdf. 183 ibid.

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individual applications.184 Likewise, the Chechen-Russian conflict produced numerous individual applications.185 Most recently, the RussoUkrainian warfare has trigged an interstate complaint.186 The Strasbourg system was never set up with such situations in mind.187 Though the Court overcame significant challenges as an instrument of democratization – witnessed in numerous cases from Eastern Europe and earlier, in Spain, Portugal and Greece,188 it has been an ineffective tool for promoting democracy in warlike conditions.189 As a result of Russia’s contentious relationship with the Court, it is the odd man out. For example, although Russia has an accredited delegation in Strasbourg, its right to vote and to be represented in the Parliamentary Assembly’s main bodies has been suspended.190 Further, Russia has both been threatened with expulsion and has threatened to leave the CoE multiple times since 2000.191 These examples of pushback from the United Kingdom and Russia are not the only signs of increasing challenges to the ECtHR’s authority. As recent reports from the Committee of Ministers have shown, compliance rates are declining, and most countries are now subject to compliance monitoring. Considering the quantitative output from the ECtHR and the complexities of many judgments, for example, by a change in remedial practices after 2000,192 an increase in the number of open compliance cases before the Committee of Ministers should be expected.193 In 184

See, e.g., Georgia v Russia (No 1) App no 13255/07 (ECtHR, 2009); Georgia v Russia (No 2) App no 38263/08 (ECtHR, 2011); and Georgia v Russia (No 3) App no 61186/09 (ECtHR, 2010). 185 Dothan (n 49) 255. 186 Ukraine v Russia App no 20958/1 4 (ECtHR, 2014). 187 The original idea was precisely to intervene before such situations occurred. See generally Ed Bates, The Evolution of the European Convention on Human Rights: From Its Inception to the Creation of a Permanent Court of Human Rights (Oxford University Press 2010). 188 Sweeney (n 125). 189 See generally René Provost, ‘Teetering on the Edge of Legal Nihilism: Russia and the Evolving European Human Rights Regime’ (2015) 37(2) Human Rights Quarterly 289. 190 ibid. 191 ibid. 192 Since the 2000s, the ECtHR has changed its remedial practices to include more specific obligations on respondent states than paying damages. In the same period, the Court has developed the practice of ‘pilot judgments’. 193 Darren Hawkins and Wade Jacoby, ‘Partial Compliance: A Comparison of the European and Inter-American Courts of Human Rights’ (2010) 6(1) Journal of International Law and International Relations 35.

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practice, partial compliance can be distinguished between where the state response is typically limited to paying damages without further implementation of judgments – in Russia, for instance.194 Where the states are seeking a dialogue and have demonstrated willingness to reform – Poland, for example – this is not necessarily detrimental in the same way.195 Although the Court is deeply challenged in Russia, the reverse situation exists for the Court in Poland and many other new member states that are engaging with the Court and Committee of Ministers to find solutions to structural problems. In other words, the rebalancing and renegotiation of the transnational European human rights space is very uneven across the member states, producing increased differences in the actual national protections of rights. The renegotiation is also unfolding at the more discursive level. Member states’ rhetoric, increasingly critical of the Court, is salient in this regard. Although this discourse of discontent is rooted in very different legal and political circumstances from one country to another, these differences seem lost on many commentators. In fact, one can observe a diffusion of critical discourse: critics from countries with comparatively few cases in Strasbourg – such as Denmark and Finland – adopt the very same discursive means as states facing more serious challenges from Strasbourg.196 In the legal field, highly critical voices speak out in practically every single European state. Even presidents of national supreme courts are openly voicing their opposition to the ECtHR – most recently, the Supreme Court Presidents from the United Kingdom, Belgium and Finland.197 Although bashing the ECtHR is not new, the 194

See Dothan (n 49) 255. ibid 237–8. 196 These statements are typically made at unrecorded seminars and less so in written material. See however, the statements by the English Law Lords in Owen Bowcott, ‘European Court is not Superior to UK Supreme Court, says Lord Judge’ The Guardian (4 December 2013), accessed 14 September 2016 at http://www.theguardian.com/law/2013/dec/04/european-court-uk-supreme-lordjudge; and Owen Bowcott, ‘Senior Judge: European Court of Human Rights Undermining Democratic Process’ The Guardian (28 November 2013), accessed 14 September 2016 at http://www.theguardian.com/law/2013/nov/28/europeancourt-of-human-rights. 197 For Belgium see Marc J. Bossuyt, Strasbourg Et Les Demandeurs D’asile: Des Juges Sur Un Terrain Glissant (Groupe de Boeck 2010); for Finland see Pauline Koskelo, ‘Domare, Lagstiftare Och Professorer’ (2014) SvJT. See generally Spyridon Flogaitis, Tom Zwart and Julie Fraser (eds), The European Court of Human Rights and Its Discontents: Turning Criticism into Strength (Edward Elgar 2013). 195

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generalization of the negative discourse across Europe and its application to very different human rights situations is quite novel. The United Kingdom’s current government does stand out, however, even from previous UK governments with its threat of leaving the ECHR: Russia is in part already ousted from the CoE. Most other member states, however, are not seeking such radical breaks with Strasbourg, yet the discourse is hard to distinguish. This unsolved balance between national and European human rights law creates a new uncertainty in the system where the Court seems to be seeking the approval of the constituencies as suggested above. This rebalancing of the system – between law and politics and between the international and the national – might best be understood as an indicator of a new fragility in the system.198 This fragility is apparent in the described efforts by the UK and Russia to reduce the ECtHR’s power over domestic matters. The very recent case law giving more leeway to member states is probably the first empirical indication of this decline of power of the ECtHR and return of some kind of diplomacy in the exercise of the Court’s function. What we are witnessing in terms of the theoretical framework suggested by this book is not a renegotiation across a series of the stages of governance: the rules are being redrafted, the interpretations by the Court are, in some instances, more careful, the legal changes that were triggered a decade ago are in some cases rolled back, and the implementation of the legal regime is in some member states at best partial. All this suggests that the Court is currently going through a transformative moment in terms of the interface of law and politics, in which the member states are seeking to draw a different line between national and European human rights. As in all other battles in the domain of law and politics, it is dynamic, and although the criticism has recently been harsh, there are no indications that the system cannot find a new, though different, equilibrium. In previous periods, more structural transformations at the geopolitical level have triggered the greatest changes. The biggest problem the Court currently is facing might well be that current geopolitical transformations – the rise of the BRICs, political chaos in the Middle East with resulting refugee problems – are unlikely to play in the favor of the Court.

198

But see Gregory C. Shaffer, Manfred Elsig and Sergio Puig, ‘The Extensive (but Fragile) Authority of the WTO Appellate Body’ (2016) 79(1) Law & Contemporary Problems 237.

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7. CONCLUSION In this conclusion I will return to the theoretical framework of this book and highlight how the case of the ECtHR may make some theoretical contributions with regard to the stages of governance proposed by Sandholtz and Whytock. Generally, my analysis identifies and analyzes all five features of the stages of governance suggested by the editors. It, however, also suggests some modifications and clarifications that will be highlighted step-by-step in what follows. These are: (1) a reconsideration of the rulemaking stage of IL; (2) a clarification of the notion of stages as sites; (3) the problem of the variation in the interface of IL with a multitude of different domestic governance systems; and (4) the question of the broader social and political context of IL. First, throughout the evolution of the ECtHR/ECHR, the five stages appear not as successive stages, but rather as recurring themes and sites for law-politics interfaces. As to rulemaking more specifically, the editors are obviously right in emphasizing the fundamental interplays of law and politics at the stage of the making of international treaties. Choices are to be made at this stage of drafting, but general international law and pre-existing commitments constrain the action taken. This chapter suggests additional features to the understanding of rulemaking as a key site of law-politics intersections, most importantly that the political negotiation over IL very often does not have a clear end date. Importantly the ECHR was left very open-ended and unfinished when it was signed on 4 November 1950, and new protocols have successively been negotiated and added ever since. There is consequently somewhat of a permanent negotiation taking place rather than a preliminary setting up of the rules of the system which ensures an ongoing intersection of law and politics but of varying degrees of intensity and concerning different political questions. This has implications for stricter rational-choice approaches to treaty design as the politics change over time in new negotiations. This changing and somewhat contingent nature of the politics of rulemaking is also, at least in the case of the ECtHR, in part the result of the political uncertainty produced by the judicialization at the international level of the political project of European human rights. What can be observed is basically the existence of a more or less permanent political negotiation in the shadow of an operative IC. This, I will argue, also has implications for other approaches to understanding the workings of ICs, notably trustee approaches, as the courts are never entirely out of the grip of the states, the principals. This is strongly demonstrated by the recent Brighton

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Declaration (2012) where the member states collectively sought to limit the power of the ECtHR. Although the Court during the late 1980s and throughout the 1990s might have appeared as practically autonomous, the member states and their political priorities came out strongly after the Brighton Declaration. A second theoretical input that can be derived from the analysis of the ECtHR concerns the notion of ‘stages’. Against the backdrop of the analysis, the term stages might have to be given a more specific meaning. What this analysis suggests is a set of sites and processes of the law-politics intersections. This is the case for the rulemaking processes but also relevant with respect to the other ‘stages’ suggested by the editors: interpretation, decision-making, implementation and legal change. When seen from the vantage point of the ECHR, an international treaty that has evolved over more than 60 years, it becomes apparent that rather than stages of evolution of the Convention these are specific sites of the law-politics interface that have occurred repeatedly but not necessarily in any particular or evolutionary pattern. Although the editors are right in highlighting the five sites (or stages in sense of theatre stage or arena) of law-politics interfaces, this analysis suggests that they are not stages that occur in any particular order with the exception of the initial drafting of international instruments in terms of rulemaking. Indeed, rather than following some teleological script triggered by the alleged rational design of treaties and international institutions, what we can observe when analyzing long existing ICs and IL (as for example the ECtHR/ECHR) are processes of reciprocity and recursivity between multiple sites of law-politics interfaces, most of which are covered by the five stages identified by the editors. A third observation that can be made is that the notion of ‘governance systems’ is tricky when applied to an institutional regime that interacts with a multitude of member states that are very different with regard to the intensity of that engagement. As the analysis shows, the ECtHR has since its genesis played very different roles with regard to the different member states. Some had very little engagement with the system, which resulted in a situation where the ECtHR had close to no importance on the development of law and politics in those member states, whilst others from early on had intensive interactions of both a political and legal nature. Interestingly, as the analysis demonstrates, the member states with high intensity interactions with the regime have not been the same over time, implying that the law-politics interfaces not only change following the legal-political questions at stake at different moments but also by changes in the overall geography and geopolitics of the regime.

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A fourth and final observation concerns the more methodological approach. Generally, the suggested add-ons or modifications to the framework all work well with the mid-range methodological framework suggested by the editors in terms of focusing on actors, problems, rules and institutions. This analysis, however, adds a more structural dimension to the understanding of the law-politics interfaces. More specifically, global, regional and domestic political contexts have played a major role in what has been staged as, respectively, legal and political. In the case of the ECtHR geopolitical changes have in particular played a major part in the evolution of the regime. This is due to the ways in which ‘[g]eopolitical trends and practices produce global frameworks of power and ideas, which in turn influence and enable actions in international institutions and in regional and national settings’.199 Similarly, regional and domestic political contexts can both help or hinder the evolution of ICs. But what is seemingly non-political at one level, for example the international level, might come across as highly politicized at the domestic level. The latter is exemplified with the examples from the recent push-back from the British government against the ECtHR on some, from the point of view of Strasbourg, technical issues that have been translated into highly principled political questions in the United Kingdom. This brings us back to the opening discussion in this chapter on the inherent problem of studying the law-politics interface as both phenomena are structural and agentic. If anything, this chapter therefore confirms the observation made by the editors that the two phenomena cannot be distinguished clearly and might best be analyzed as different degrees of respectively legalization and politicization.200 In this analytical light, the history of the ECHR and ECtHR becomes the story of different but gradually changing graduations of legalization and politicization of human rights. Moreover, and that is probably the main point, the direction of those gradual changes is double contingent in the sense that both law and politics can trigger changes in both directions. For the same reason, the future of the ECtHR remains surprisingly unclear.

199 200

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10. The law and politics of WTO dispute settlement Gregory Shaffer, Manfred Elsig and Sergio Puig1

INTRODUCTION Since its inception in 1995, the World Trade Organization (WTO) has included a highly judicialized dispute settlement system that is unique in international law and politics at the multilateral level. The WTO’s institutionalized processes significantly mediate power in dispute settlement.2 In this chapter, we evaluate ‘this move to law’,3 and assess the operation of the WTO dispute settlement system in political context across different governance stages. We analyze three stages of dispute settlement in line with the ‘stages of governance’ framework developed by Wayne Sandholtz and Christopher A. Whytock: first, we evaluate the selection process of those who interpret the rules; second, we address the context and politics of rule interpretation; and third, we discuss compliance and settlement in light of WTO dispute settlement rulings. The chapter shows how the law and politics of these three stages interact, so that a static analysis of individual governance stages is insufficient. As we explain, the selection of Appellate Body members, panelists and secretariat members affects the interpretation of WTO rules. Certain interpretations, in turn, encounter stark resistance, leading to compliance challenges. The compliance challenges threaten the authority of panels and the Appellate Body, and can, in turn, inform subsequent interpretive choices, as well as the selection process of Appellate Body members and panelists. Law and politics thus continuously interact, shaping the WTO’s dispute settlement process. The chapter first evaluates the external and internal factors that drove the legalization and judicialization of the WTO 1 We thank Marc Busch, Joost Pauwelyn and Krzysztof Pelc for their comments. All errors remain our own. 2 Ruth W. Grant and Robert O. Keohane, ‘Accountability and Abuses of Power in World Politics’ (2005) 99(1) American Political Science Review 29. 3 Judith Goldstein, Miles Kahler, Robert O. Keohane and others, ‘Introduction: Legalization and World Politics’ (2000) 54(3) International Organization 385.

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dispute settlement system, and that of its predecessor, the General Agreement on Tariffs and Trade (GATT).4 It then analyzes three stages of governance and explains their interaction.

1. HISTORICAL DEVELOPMENT: THE SHIFT FROM GATT TO WTO DISPUTE SETTLEMENT 1.1 The Creation of the WTO Dispute Settlement System WTO dispute settlement developed over time. To understand the political context today, one must evaluate how the system developed institutionally over 60 years, going back to GATT dispute settlement, its predecessor. These developments have shaped the institutional culture and nationstate acceptance and expectations of the WTO dispute settlement system, which, in turn, mediates power. Three primary factors influenced the WTO system’s creation. Different mid-range theories advance these explanatory factors, which we find are best viewed as complements. (i)

(ii)

Shared understanding: GATT members gradually embraced greater legalism of the dispute settlement system and agreed on the need to further reform the system in the 1980s. This shared understanding facilitated negotiations to address perceived deficiencies in the GATT system while key actors, such as the European Union (EU),5 grew convinced of the need for using binding third-party dispute settlement. Issue-linkage bargaining backed by economic power: The GATT parties engaged in bargaining based on reciprocity in which the United States (US) agreed to constrain its use of unilateralism in return for automatic third-party dispute settlement under the new WTO dispute settlement system. The U.S. used issue-linkage politics backed by the credible exercise of coercive unilateralism,

4 By the term legalization, we refer to the relative precision and binding nature of WTO rules. By the term judicialization, we refer to the use of a thirdparty institution for dispute settlement. Cf. Alec Stone Sweet, ‘Judicialization and the Construction of Governance’ (1999) 31 Comparative Political Studies 147; Kenneth W. Abbott, Robert O. Keohane, Andrew Moravcsik and others, ‘The Concept of Legalization’ (2000) 54(3) International Organization 401; Martha J. Finnemore, and Stephen Toope, ‘Alternatives to “Legalization”: Richer Views of Law and Politics’ (2001) 55(3) International Organization 743. 5 At the time, the EU was the European Communities (EC).

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which it wielded through threats to withdraw access to its huge market, to press countries to include new issues important to the U.S. in the WTO’s rules, such as intellectual property protection and the liberalization of trade in services. (iii) Historical conjuncture and ideology: The fall of the Berlin Wall and the end of the Cold War provided an ideological opening to enforce liberalized trade rules. This opening can be viewed either as a facilitating circumstance or a precipitating condition.6 The U.S. and EU dominated the Uruguay Round trade negotiations that resulted in the WTO’s creation, and neither China nor Russia participated in them. First, to understand the political context of the WTO quasi-judicial system, we must understand how a shared understanding of the benefits of greater legalization evolved over time as part of a historical institutional process. Under the GATT’s formal rules, dispute settlement was to be overseen by the entire membership, initially consisting of 23 contracting parties. The membership created panels of first five and then three members to write a report, but it was diplomats in Geneva who were on the panels and it was these diplomats who controlled the process. The initial panel reports were a matter of a few pages, were often vague, using compromise language, constituting over time, in Robert Hudec’s words, a ‘diplomat’s jurisprudence’.7 As Joseph Weiler writes, ‘crafting outcomes that would command the consent of both parties and thus be adopted was the key task of the panelists’.8 Political checks could delay or block the dispute settlement process. Both the formation of a panel and the adoption of a report required consensus of the entire membership, and thus the defendant could block the process at either stage. The result at best was long delays, and at worst was complete blockage. In all cases, the shadow of both potential dispute settlement and the potential blockage of dispute settlement informed bargaining between the parties to settle disputes. The GATT process nonetheless legalized over time as members gained more trust in it. The process became normalized and institutionalized, 6 Terrence Halliday and Gregory Shaffer, Transnational Legal Orders (Cambridge University Press 2015). 7 Robert E. Hudec, Enforcing International Trade Law: The Evolution of the Modern GATT Legal System (Butterworth Legal Publishers 1993) 7. 8 Joseph H.H. Weiler, ‘The Rule of Lawyers and the Ethos of Diplomats: Reflections on the Internal and External Legitimacy of WTO Dispute Settlement’ (2001) 35(2) Journal of World Trade 191.

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and with institutionalization, legalism gradually grew in importance. In 1979, under the Tokyo Round Dispute Settlement Understanding, the GATT contracting parties agreed to more formalized dispute settlement procedures. At the start of the 1980s, the GATT Director-General established a small legal affairs office inside the secretariat composed of one lawyer, but that lawyer did not assist panels. However, by the end of the 1980s, the office had been renamed the Legal Affairs Division and it consisted of three attorneys that provided assistance to the dispute settlement panels.9 This legal affairs division staffed all GATT disputes, except for those addressing antidumping, countervailing duty and safeguard claims which were heard by the rules division following U.S. pressure on the Director-General.10 The U.S. apparently wanted to ensure that import relief specialists oversaw the latter disputes, arguably in the hope that they more likely would defer to U.S. practices. These two divisions of the GATT secretariat (legal and rules) acquired a reservoir of knowledge of the evolving GATT case law. The role of the lawyers within them in the drafting of panel reports significantly increased and gave rise to a more coherent and legalized jurisprudence in the 1980s and early 1990s.11 The GATT parties, therefore, grew more comfortable with the idea of greater legalization in light of their experience with the system.12 Nevertheless, dissatisfaction with GATT dispute settlement remained in the 1980s as defendants continued to block the establishment of panels and the adoption of reports, and a consensus emerged that the system should be reformed.13 What helped push reform toward a significantly more judicialized system was a shift in the EC’s position. EC representatives originally resisted any change, but they adjusted their position later in the Uruguay Round trade negotiations to accept substantial reforms, in large part due to the EC’s experiences in GATT cases during the 9 The GATT Director-General appointed the first lawyer in 1981 to test the waters. See Gabrielle Marceau, Amelia Porges and Daniel Ari Baker, ‘Introduction and Overview’ in Gabrielle Marceau (ed), A History of Law and Lawyers in the GATT/WTO: The Development of the Rule of Law in the Multilateral Trading System (Cambridge University Press 2015). 10 See e.g. Frieder Roessler, ‘The Role of Law in International Trade Relations’ in Gabrielle Marceau (ed), A History of Law and Lawyers in the GATT/WTO: The Development of the Rule of Law in the Multilateral Trading System (Cambridge University Press 2015) 168. 11 Hudec (n 7). 12 ibid. 13 Manfred Elsig, ‘Legalization Leap in Context: The Design of the WTO’s Dispute Settlement System’ (Manuscript, University of Bern 2015).

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negotiations.14 This form of ‘experiential learning’ proved important in facilitating consensus among negotiators.15 Mutual trust among negotiators and positive experience with GATT procedures and outcomes shaped negotiating positions, and enabled agreement on the new dispute settlement rules. These rules eliminated the defendant’s ability to veto the creation of a panel or adoption of the report, such that only a consensus of all WTO members, including the complainant, can block a panel’s formation and the adoption of its decision (known as ‘reverse consensus’). In addition, the new rules created a new appeals process under a new institution, the WTO Appellate Body.16 As a result, since 1995, panels can be formed without delay and panel reports adopted automatically unless they are appealed, in which case the Appellate Body report is adopted. To understand the development and redesign of the WTO’s dispute settlement rules, the role of shared understanding must be complemented by an appreciation of the roles of reciprocal bargaining based on issue-linkage politics and the United States’ use of unilateralist threats to withdraw market access. The WTO dispute settlement system, in other words, also was born out of reciprocal bargaining in the shadow of coercion. During the years of the Uruguay Round negotiations, the U.S. threatened and imposed unilateral trade sanctions against other GATT members both on the grounds that they violated their GATT commitments and engaged in delaying and blocking tactics, and on the grounds of unfairness as determined by the United States Trade Representative (USTR). The USTR took such unilateral actions under Section 301 of the 1974 Trade Act, as amended by the 1988 Omnibus Trade and Competitiveness Act.17 Section 301 empowers the President to impose trade sanctions against countries that the USTR finds have restrained trade in an ‘unjustifiable’ or ‘unreasonable’ manner, as defined in the act. The USTR used the mechanism on matters of growing importance to U.S. trade that were not covered by GATT rules but that would later be covered by WTO rules – namely the protection of intellectual property and trade in services. The U.S. applied these unilateral measures against 14 Manfred Elsig and Jappe Eckhardt, ‘The Creation of the Multilateral Trade Court: Design and Experiential Learning’ (2015) 14(S1) World Trade Review S13. 15 ibid. 16 Elsig (n 13). 17 Krzysztof J. Pelc, ‘Constraining Coercion? Legitimacy and Its Role in US Trade Policy, 1975–2000’ (2010) 64(1) International Organization 65.

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the EC, other developed countries, like Japan, and leading developing countries such as Brazil and India. Those GATT members exposed to U.S. unilateralism worked towards reaching a compromise. The U.S. agreed to pursue cases in the future through the WTO dispute settlement system pursuant to article 23 of the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes (Dispute Settlement Understanding, or DSU), which prohibits unilateral enforcement of WTO rules, in return for correcting the deficiencies in the GATT system where a party could block the process.18 The overall package deal, moreover, included the expansion of trade rules to include intellectual property protection and services trade, which were important for U.S. economic interests. Since the reciprocal bargaining occurred within the context of U.S. coercion, the WTO dispute settlement system should be viewed, as well, as arising in the shadow of U.S. power involving issue-linked bargaining. In addition, the creation of the re-designed WTO dispute settlement system occurred in a particular historical conjuncture – the collapse of the Soviet Union, the fall of the Berlin Wall, and the end of the Cold War. This constitutional moment in world politics19 facilitated the accompanying rise of market-oriented development policies on account of the collapse of the Soviet model and the parallel success of export-led development models in East Asia. The WTO represents a form of institutionalization of global capitalism, which is legally enforced through its dispute settlement system. Prior to the WTO’s creation, developed countries were the main protagonists in GATT dispute settlement since developing countries made few legal commitments under the GATT. As a result there was little ideological confrontation over dispute settlement at a time when developing countries unsuccessfully attempted to forge a new international economic order through the United Nations.20 The turn to more liberal-oriented development policy facilitated developing countries’ engagement with the new WTO dispute settlement system, which in turn helped to embed such trade policy changes. 18 WTO, ‘Understanding on Rules and Procedures Governing the Settlement of Disputes’ (1994) LT/UR/A-2/DS/U/1, art 23 (hereinafter DSU). 19 G. John Ikenberry, ‘Constitutional Politics in International Relations’ (1998) 4(2) European Journal of International Relations 147. 20 This initiative gave rise to the United Nations Conference on Trade and Development (UNCTAD), which continues to operate as a think tank for developing countries on trade policy.

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1.2 Early Period and Consolidation Two additional factors became important for understanding the law and politics of WTO dispute settlement since the WTO’s creation in 1995: the agency of the Appellate Body, and the role of private corporate interests working with governments behind the scenes, forming ‘public-private partnerships’ in bringing cases. First, the Appellate Body had its own interests in consolidating acceptance of the new system, and thus its interpretive authority. The idea of an appellate body was a bit of an afterthought in the Uruguay Round negotiations, and only developed late in the round.21 DSU negotiators appeared to expect that the appellate stage would only be used in exceptional cases.22 This expectation turned out to be false. The first group of Appellate Body members was quickly confronted with cases where they had to confirm or correct panel decisions. Through creating its own working procedures – which negotiators did not have time to agree upon – the Appellate Body strengthened its cohesiveness and collegiality.23 Through careful textual interpretations and through carefully balancing trade and social policy interests, it aimed to establish itself as a legitimate and respected authority. The Appellate Body’s rulings abandoned the use of diplomatic jargon to settle disputes through more complex and technical legal reasoning, repeatedly referencing the norms of interpretation set forth in the Vienna Convention on the Law of Treaties. The Appellate Body at times harshly overruled panels for deficiencies in their legal reasoning.24 By wrapping their rulings in juridical reasoning, the Appellate Body members aimed to enhance their authority.25 In the process, they further empowered the WTO legal

21 Peter Van den Bossche, ‘From Afterthought to Centerpiece: The WTO Appellate Body and its Rise to Prominence in the World Trading System’ in Giorgio Sacerdoti, Alan Yanovich and Jan Bohanes (eds), The WTO at Ten: The Contribution of the Dispute Settlement System (Cambridge University Press 2006). 22 Elsig (n 13). 23 Interview with Appellate Body Member (4 June 2010). 24 The AB modifies or reverses around 85% of panel reports. Michel Cartland, Gérard Depayre and Jan Woznowski, ‘Is Something Going Wrong in the WTO Dispute Settlement?’ (2012) 46(5) Journal of World Trade 979. 25 Gregory Shaffer, Manfred Elsig and Sergio Puig, ‘The Extensive (But Fragile) Authority of the WTO Appellate Body’ (2016) Law and Contemporary Problems 237.

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secretariat that supports panels because, as repeat players, the secretariat has better knowledge of Appellate Body precedent, and more generally represents the system’s institutional memory. Second, one cannot understand the development of the WTO dispute settlement system without appreciating the frequent role of private parties, and in particular business stakeholders affected by WTO dispute settlement, and the private lawyers with which they and WTO members work.26 This private dimension draws out another fundamental aspect of WTO politics – that is, one needs to attend to not just inter-state politics, but also public-private politics. The material interests of affected businesses and the professional interests of lawyers are key to understanding the development of the WTO dispute settlement system.27 WTO law ultimately affects private stakeholders whose market opportunities and profits are significantly affected by national regulation. With the increasing role of law, dispute settlement became relatively more certain compared to the former GATT. With legalization, not only the interests of private businesses gained prominence, but so did the professional roles of private lawyers. They attracted clients in light of the potential of winning cases and the need for legal expertise to advance the client’s goals. They prepared legal briefs that they presented to government officials on behalf of private clients in order to have governments consider cases. Countries that lacked legal capacity learned of the role that these lawyers played, and they delegated the task of drafting legal briefs and preparing oral arguments to them. After the Appellate Body decided that a country could include private lawyers in its official delegation, lawyers increasingly became important for presenting developing country members’ arguments before panels and the Appellate Body. Multinational companies now can hire lawyers and approach different countries that might consider bringing a case. This trend led to the growth of public-private partnerships that include government officials, business representatives and private lawyers. As a result, countries make formal complaints more frequently under the WTO compared to the GATT, generating over 400 formal decisions totaling more than 90,000 pages of jurisprudence.28 Yet this legalization of international trade dispute settlement does not mean that politics has

26 Gregory Shaffer, Defending Interests: Public-Private Partnerships in WTO Litigation (Brookings Institution Press 2003). 27 ibid. 28 Authors’ calculations.

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completely subsided. Rather politics manifests itself in different, nuanced ways, as we show regarding three governance stages of selecting actors involved in the judicial process, interpreting legal texts, and compliance with rulings. WTO’s institutions mediate power and politics across these three stages, but politics and power remain.

2. THE SELECTION PROCESS FOR THE APPELLATE BODY, PANELISTS AND SECRETARIAT The key actors who draft WTO dispute settlement rulings – and thus not only decide the dispute but also create jurisprudence for future cases – are the members of the Appellate Body, the members of ad hoc panels, and the secretariat that services them. Who they are, how they are selected, the rules providing for their roles, and the institutional culture in which they operate, all shape how WTO legal texts are interpreted and applied in particular disputes. In turn, how these actors interpret the rules affects the selection process of panelists and Appellate Body members and their interaction with the secretariat. We start with the Appellate Body because its members are the most important actors in the interpretation and application of the WTO agreements and the development of WTO jurisprudence. We then turn to the panelists and the secretariat. 2.1 Appellate Body The WTO Appellate Body, more than any other aspect of the WTO dispute settlement system, resembles a court. The DSU provides that ‘the Appellate Body membership shall be broadly representative of membership in the WTO’, that it shall consist of ‘seven persons’ holding four-year terms (renewable once), and that three of these persons shall serve on any one case. WTO members have attempted to place constraints on WTO Appellate Body members in a number of ways. In doing so, they attempt to shape the Appellate Body’s functioning. First, the Appellate Body members are selected pursuant to a complicated process where powerful WTO members exercise particular influence. WTO members nominate their own nationals to a selection committee consisting of the WTO Director-General and chairpersons of five important WTO bodies who are representatives of WTO members typically at the ambassadorial level. In the selection process, members interview candidates to attempt to determine their judicial and decisionmaking philosophies, especially in terms of their potential activism on

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matters of concern, and report their views to the selection committee.29 Those frequently involved in WTO disputes, which are the largest countries, are particularly scrutinizing. Richard Steinberg stresses this constraint when he argues that powerful WTO members have a de facto veto over the selection of Appellate Body members, and that a candidate’s approach and philosophy to judicial decision-making plays an important role in those members’ decisions on whether to block a candidacy.30 While the committee seeks a regional balance, in practice, one Appellate Body member has always been a U.S. national and another an EU national. In addition, one Appellate Body member was always from Japan until 2007, and a member has been from China since 2008. In other words, leading economies have a quasi-permanent seat on the Appellate Body. As more WTO members became involved in WTO dispute settlement, a greater number took an interest in the selection process. Elsig and Pollack show how WTO members have become more scrutinizing over time regarding the selection of the Appellate Body members as they have come to understand their importance.31 Candidates who appear less likely to be judicial ‘activists’ have a better chance of being selected. Candidates who were independent judges in national contexts or academics that have published their views on WTO cases are less likely to be chosen. Powerful WTO members also can exercise influence by refusing to reappoint an Appellate Body member for a second four-year term – the maximum term being eight years. The U.S. has been the only country that has attempted to use such influence so far. It first declined to re-nominate two U.S. members to express its dissatisfaction with a number of WTO rulings in antidumping and countervailing duty cases.32 The U.S. apparently did so in order to send a signal to the Appellate Body about U.S. dissatisfaction, under the view that the U.S. national was insufficiently persuasive within the Appellate Body on matters of 29 Manfred Elsig and Mark A. Pollack, ‘Agents, Trustees, and International Courts: The Politics of Judicial Appointment at the World Trade Organization’ (2014) 20(2) European Journal of International Relations 391. 30 Richard Steinberg, ‘Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints’ (2004) 98 American Journal of International Law 247; Judith L. Goldstein and Richard H. Steinberg, ‘Negotiate or Litigate? Effects of WTO Judicial Delegation on US Trade Politics’ (2008) 71(1) Law and Contemporary Problems 257. 31 Elsig and Pollack (n 29). 32 ibid (the first time was more ambiguous; the second quite transparent).

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concern to it, and in particular, appellate rulings regarding the U.S. practice of ‘zeroing’ in antidumping cases.33 In 2016, even more controversially, the U.S. blocked the re-nomination of a Korean member of the Appellate Body (Mr. Seung Wha Chang) on the ground that ‘his performance does not reflect the role assigned to the Appellate Body by Members in the DSU’.34 Even though Appellate Body members issue decisions collectively as three judge panels, the U.S. accused Chang of making ‘wrong’ decisions that also went beyond what was needed to settle an individual dispute.35 South Korea and the WTO membership generally castigated the U.S. for attempting to undermine judicial independence, but to no avail.36 Figure 10.1 provides an overview of changes in the profile of Appellate Body members since the WTO’s creation.37 Domestic judicial experience has generally been low, and has declined. The maximum number with domestic judicial experience has been two of the seven Appellate Body members, which only occurred for four years during the early 2000s. In contrast, three other characteristics (experience in trade law – that is, lawyers teaching or practicing trade law either as government officials or in private firms; experience as a former trade diplomat; and experience as a member of a GATT or WTO panel) have each increased over time. WTO members appear to favor those who are more likely to be part of the ‘Geneva community’ and thus understand the broader diplomatic context in which dispute settlement occurs. Today, more Appellate Body members have been affiliated with governments, which suggests that they could be less independent. These shifts in candidate profiles likely affect the way the Appellate Body interprets the law. For instance, Appellate Body members that have been affiliated with governments may be more 33 ibid. ‘Zeroing’ refers to the US practice of setting at zero the negative differences between the foreign domestic prices of a product when compared to its US import prices. Because negative amounts are excluded, this practice often results in the calculation of a higher dumping margin and thus the imposition of a higher antidumping duty. 34 Statement by the US at the Meeting of the WTO Dispute Settlement Body, Geneva, 23 May 2016, , p. 2, accessed 11 October 2016. 35 Id. See also Manfred Elsig, Mark Pollack, and Gregory Shaffer, ‘The U.S. is causing a major controversy in the World Trade Organization. Here’s what’s happening.’ The Washington Post, 6 June, 2016. 36 Elsig, Pollack and Shaffer (n. 35). 37 Elsig and Pollack (n 29); Joost Pauwelyn, ‘WTO Panelists Are From Mars, ICSID Arbitrators Are From Venus: Why? And Does it Matter?’ AJIL (2016).

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Number

6

4

2

0 1995

2000 Court Experience Trade Law Experience

2005 Year

2010

2015

Former Negotiator Former GATT/WTO Panelist

Figure 10.1 Profiles of WTO Appellate Body Members inclined to recognize the ‘regulatory space’ of governments, whereas former negotiators may be more focused on the text of the WTO agreements and context of the negotiations, while former judges may be more attuned to a jurisprudence that incorporates general legal principles common to different legal systems. The rules of the DSU can also shape the Appellate Body’s normative authority and (potentially) its behavior. WTO members have been careful not to refer to the Appellate Body as a court or to its members as judges. Rather, the DSU refers to Appellate Body members as ‘persons’ who comprise ‘the Appellate Body membership’ and who have ‘demonstrated expertise in law’ (Article 17). The Appellate Body members refer to themselves as ‘members’, and not as judges. In terms of decision-making, DSU Article 17 restricts the subject of appeals exclusively to ‘issues of law covered in the panel report’, so that the Appellate Body cannot re-examine evidence or address new issues.38

38 DSU (n 18), art 17. DSU, art 3.2 also provides that ‘Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements.’ This provision is cross-referenced in article 19 regarding ‘Panel and Appellate Body Recommendations.’ The US and other members reference these articles when they claim that panels or the Appellate

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DSU Article 19 further provides that the Appellate Body makes ‘recommendations’ regarding compliance, suggesting that its rulings are not binding. It states, ‘where a panel or the Appellate Body concludes that a measure is inconsistent with a covered agreement, it shall recommend that the Member concerned bring the measure into conformity with that agreement’. In addition, DSU Article 3 provides that ‘recommendations or rulings made by the DSB (Dispute Settlement Body) shall be aimed at achieving a satisfactory settlement of the matter in accordance with the rights and obligations under this Understanding and under the covered agreements’. This language suggests that the Appellate Body has a mediating role that should be conducive to settlement, so that litigants can use the Appellate Body reports as a focal point around which they can settle their disputes. Indeed, the process often works in practice this way. As Amy Porges writes, ‘every WTO dispute takes place between two negotiations: one negotiation that has failed to produce compliance and another negotiation on securing compliance after the dispute process is over’.39 Finally, the WTO Dispute Settlement Body must formally adopt the Appellate Body’s interpretive rulings and recommendations for them to become effective. Although this practice is a formal one, it provides an opportunity for WTO members to critique Appellate Body rulings. They most prominently did so following the Appellate Body’s ruling on the acceptance of unsolicited amicus curiae submissions, which overturned the panel’s interpretation of DSU Article 13 in the US Shrimp-Turtle case, and the Appellate Body’s publishing on its website, on its own initiative, rules providing for amicus curiae submissions for an appeal. After such publication, Members held a special meeting in which they castigated the Appellate Body (November 2000).40 Since then, the Appellate Body has not issued rules for that matter again, and no panel or Appellate Body has ever cited an amicus brief in support of its decision. These constraints on the Appellate Body through DSU rules and the selection process nonetheless are limited. There are seven Appellate Body members who must decide cases in which individual WTO Body issue rulings that create jurisprudence that go beyond what was agreed in the legal texts. 39 Amelia Porges, ‘Settling WTO disputes: What Do Litigation Models Tell Us’ (2003) 19 Ohio State Journal on Dispute Resolution 141, 147. She continues, ‘It is the negotiation that will determine which of the range of possible outcomes emerges from a WTO dispute, and when.’ 40 Henry Gao, ‘Amicus Curiae in WTO Dispute Settlement: Theory and Practice’ (2006) 1 China Rights Forum. Human Rights in China 51–7.

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members express different views as complainants and respondents. The Appellate Body members decide cases in panels of three through a process that the initial Appellate Body designed to result in random selections, although they discuss the issues collectively in each case.41 These Appellate Body members deliberate in private, do not sign their opinions, and rarely dissent, rendering political scrutiny of individual members more difficult. They have never signed a decision in their individual name, and they have only rarely issued dissents (although with a slight increase over time).42 Were they to do so, it would give greater grounds for a WTO member that disagreed with a decision to refuse to consent to an Appellate Body member’s reappointment for a second four-year term, and it would reduce the hermeneutic authority of the body as a whole since opinions would more easily be identified with individual members from particular countries as opposed to the institution. Even where a WTO member is able to designate an individual representing its views on matters important to it, that Appellate Body member is just one voice among seven, and just one (potential) vote among three. Although the DSB formally must adopt Appellate Body rulings for them to take effect, the DSB has, in practice, no power to refuse to adopt a decision given the reverse consensus rule (the rulings and recommendations become adopted unless a consensus of all WTO members – including the prevailing member – rejects the entire report). Since it is highly unlikely that all WTO members would reject a report, the DSB has always adopted the reports except in one exceptional case in light of a procedural ambiguity.43 In addition, the reports represent much more 41

See Rule 6 of the Working Procedures, which the Appellate Body created. The method to select the members of every Appellate Body panel (known as divisions) is called rotation and is designed to create randomness. The method allows Appellate Body members to serve in divisions regardless of their national origin, unlike for the initial WTO panels. In each case, one Appellate Body member will be the Presiding Member for the panel. Alberto Alvarez-Jimenez, ‘The WTO Appellate Body’s Decision-Making Process: A Perfect Model For International Adjudication?’ (2009) 12(2) Journal of International Economic Law 289. 42 See Shaffer, Elsig, and Puig (n 25) 478. The first chairperson of the Appellate Body, Julio Lacarte-Muró, writes that he felt that minority opinions should be avoided ‘at all costs’. Insiders believe they know who was the dissenting voice in the few dissents that occur, but they are not signed and thus more difficult to tie down. 43 Formally, a member must place a panel or Appellate Body ruling on the agenda of the DSB for the DSB’s approval by reverse consensus. In the

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than ‘recommendations’ since, if a losing respondent does not comply with them, the complainant may seek a compliance ruling followed by authorization (typically through reference to the original panel) to withdraw an equivalent amount of trade concessions, which itself can only be rejected by consensus (DSU Article 22). Although there is no formal stare decisis of Appellate Body decisions, panel and Appellate Body reports regularly cite them, as do complainants and respondents in their submissions.44 The interpretations become part of the WTO acquis and thus authoritative in future disputes. They also shape proposed member legislation and regulation in order to avoid disputes. For example, the Advisory Centre on WTO Law, a subsidized organization for developing countries on WTO dispute settlement, notes that about a third of the developing country requests it receives regard the WTO consistency of the country’s own proposed legislation or regulation, and not those of third countries.45 2.2 The Panelists The panel process is much less court-like in any traditional sense, especially given that panels are composed of three members who serve on an ad hoc basis in individual disputes, and thus are more like arbitrators. Moreover, it reflects a unique type of arbitration process in which the WTO Director-General (DG) frequently selects panel members EC-Bananas case, the EC commenced an article 21.5 proceeding regarding its own implementation of the Appellate Body ruling after the U.S. retaliated because it considered that the EC had failed to implement the WTO recommendations. The EC lost the 21.5 case and did not put the ruling on the DSB agenda. The U.S., which prevailed in the 21.5 ruling, did not put the ruling on the agenda either as it maintained at the time that only the complainant could file an article 21.5 claim regarding implementation. See Williams A. Davey, ‘The First Years of WTO Dispute Settlement: Dealing with Controversy and Building Confidence’ in Gabrielle Marceau (ed), A History of Law and Lawyers in the GATT/WTO: The Development of the Rule of Law in the Multilateral Trading System (Cambridge University Press 2015). The Appellate Body since has clarified that either a complainant or respondent may file an article 21.5 claim regarding implementation. 44 See Shaffer, Elsig, and Puig (n 25); Joost Pauwelyn, ‘Minority Rules: Precedent and Participation before the WTO Appellate Body’ in Laura Nielsen and Henrik Palmer Olsen (eds), Establishing International Adjudicatory Authority in Trade Law (Cambridge University Press 2015). 45 Gregory Shaffer, ‘Assessing the Advisory Centre on WTO Law from a Broader Governance Perspective’ (2011) Minnesota Legal Studies Research Paper No. 11-46.

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(around 64 percent of the time) because the parties cannot agree on them, and the secretariat, which holds the primary legal and jurisprudential expertise, advises these panelists.46 The Secretariat proposes a list of potential panelists to the parties, which a party may reject.47 Where the parties cannot agree, the DG selects one or more of the panelists, and in practice confirms those agreed by the parties.48 The parties thus remain influential in the selection process, and even when the DG makes a selection, he does so in consultation with them.49 Nonetheless, the secretariat is highly influential in that it is the secretariat that proposes panelists to the parties, and if the parties cannot agree, then informally to the DG who selects them.50 Petros Mavroidis and former Appellate Body member Jennifer Hillman each write that the DG has appointed at least one panel member in over 60 percent of panels.51 Panelists who wish to be considered for reappointment thus have incentives to work well with the secretariat. If they do not and relations are strained, it is unlikely that 46 DSU (n 18), art 8. (Establishes the rules to appoint the panel. According to Article 8.5, the panel must be formed with three persons unless within ten days from the establishment of the panel, the parties to the dispute agree to the appointment of five panelists. When a dispute is between a developing country member and a developed country member, the panel must, upon request by the developing country member, include at least one panelist from a developing country member (art 8.10)). 47 ibid art 8.6. (The Secretariat maintains the indicative list of panelists consisting of nationals put forward by WTO members. However, 72 percent of panelist appointments were not on the Indicative List as there is no requirement to be listed on such a list. Accordingly, the Secretariat maintains another informal, broader list.) 48 ibid art 8.3. (For instance, citizens of a party or a third party to a dispute may not serve as panelists without the agreement of the parties.) 49 Andrew W. Shoyer, ‘Panel Selection in WTO Dispute Settlement Proceedings’ (2003) 6(1) Journal of International Economic Law 203–9; Pauwelyn (n 37). 50 See Petros C. Mavroidis, ‘Emerging Issues In International Arbitration: Arbitrating Trade Disputes (Who’s the Boss?)’ (2012) 23 American Review of International Arbitration 481 (describing how panelists are selected). See also David Palmeter and Petros C. Mavroidis, Dispute Settlement in the World Trade Organization: Practice and Procedure (Cambridge University Press 2004) (discussing appointment process). 51 Mavroidis (n 50) (stating that the ‘DG appointed at least one Panelist on 126 [out of 199] occasions’); Jennifer Hillman, ‘Emerging International Rule of Law – The WTO Dispute Settlement System’s Role in its Evolution’ (2010) 42 Ottawa Law Review 269 (stating that as of 30 November 2011, 96 out of 159 composed panels have been selected by the DG); Pauwelyn (n 37).

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the secretariat will propose their nomination in future disputes, whether to the parties or the DG.52 By the end of 2014, 251 panelists had sat in 201 cases during the WTO’s first 20 years. In practice, around 88 percent of WTO panelists have a substantial governmental background, which is completely different than in investment arbitrations where most arbitrators are from private practice (around 76 percent), followed by academia.53 This result likely reflects the input of the parties to the WTO dispute and the fact that both parties are governments, in contrast with investor-state arbitration. Most commonly, the panelists are trade delegates from the Geneva missions or capital-based trade officials. Former WTO secretariat officials, retired government officials, and a few academics have also served on panels. The most frequent nationality of panelists are from the EU, Canada, New Zealand, Australia, Switzerland and Chile, countries which are generally significant exporters and viewed as ‘“friends” of the system’.54 The task of a panelist is performed on a part-time basis, so that panelists continue their other ongoing professional activity, and if they are government officials, they are not paid except for a modest per diem if they work outside of normal office hours (for example, weekends). These panelists nonetheless increasingly have a legal background, and much more so than the trade diplomats who served on GATT panels.55 As a result, the typical characteristic of WTO panelists is a government diplomat with a legal diploma. The shift toward diplomats with a legal background is arguably in response to Appellate Body jurisprudence in which the Appellate Body has frequently and at times quite critically overruled panels for their legal reasoning.56 Panelists are, on average, not of particularly high renown in terms of their reputation in law. The DSU itself does not set high credentials for them, providing only that ‘panels shall be composed of well-qualified government and/or non-governmental individuals’ (Article 8). Many 52 Weiler (n 8); Pauwelyn (n 37); for the data, see Puig, ‘Web of Law’, accessed 7 July 2015 at http://weboflaw.com/index.html?config=WTO-contacts. json. 53 Pauwelyn (n 37). Cf Fontoura Costa and Jose Augusto, ‘Comparing WTO Panelists and ICSID Arbitrators: the Creation of International Legal Fields’ (2011) 1(4) Oñati Socio-Legal Series 1 (for an earlier study). 54 Reto Malacrida, ‘WTO Panel Composition: Searching Far and Wide for Administration of World Trade Justice’ in Gabrielle Marceau (ed), A History of Law and Lawyers in the GATT/WTO: The Development of the Rule of Law in the Multilateral Trading System (Cambridge University Press 2015). 55 ibid. 56 Weiler (n 8).

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panelists are not even high-ranking government officials (possibly because the latter often do not have a legal diploma) and a growing number of them come from developing countries compared to under the GATT.57 Developing country diplomats at times advocate the selection of developing country officials as a means for their countries to develop legal capacity regarding the system.58 In such cases, they seek designation to gain expertise in WTO dispute settlement, not on account of their expertise. Panelists also may be more technocratic, holding some knowledge regarding a particular area of WTO law, such as antidumping law, and thus do not have a broader view regarding WTO jurisprudence, especially as compared to the Appellate Body.59 The use of government diplomats has a political implication since it can help to legitimize WTO dispute settlement within governments. Panelists from WTO members participate in rule interpretation in response to Appellate Body precedent. They follow that precedent in practice, with the one exception being the issue of zeroing in a series of antidumping cases in which the panels eventually succumbed.60 In following Appellate Body precedent, the panelists give earlier Appellate Body jurisprudence the panel’s imprimatur, which becomes normalized over time as the appropriate way to read WTO agreements. The panelists can internalize this understanding when they continue in their job in national administrations, bringing WTO law and Appellate Body jurisprudence home.

57 Cf Mavroidis (n 50) (More than 50 percent of panelists are from developing countries); Pauwelyn (n 37) (noting that the concept of a developing country is broad in the WTO and even includes Korea, and that 64 percent of appointments are from high-income countries under World Bank criteria); John H. Jackson, ‘The Birth of the GATT-MTN System: A Constitutional Appraisal’ (1980) 12(1) Law and Policy in International Business 21 (according to Jackson, early GATT panel members were usually the same officials who represented governments and most of them were from developed nations. Although ostensibly acting in their individual capacities, these panelists could not be fully insulated from their governments’ positions and policies). 58 Interview with WTO delegates. 59 Shoyer (n 49). 60 Joseph Conti, ‘Legitimacy Chains: The Legitimation of Compliance with International Courts Across Multiple Social Fields’ (2016) 50 Law & Society Review 154. These cases involved the U.S. practice of zeroing in antidumping investigations where panels were serviced and arguably influenced by the secretariat in the rules division, as discussed in the section on the secretariat.

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2.3 The Secretariat One cannot understand the politics of WTO dispute settlement without understanding the role of the WTO secretariat. Two divisions within the secretariat (legal and rules) divide taking the lead in servicing WTO panels. The legal division representative takes the lead in servicing all panels except those involving antidumping, countervailing duty, and safeguards that are the responsibility of the rules division. Where the legal division takes the lead in a dispute involving a specialized agreement – such as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), the General Agreement on Trade in Services (GATS), the Agreement on Sanitary and Phytosanitary Measures (SPS), and the Agreement on Technical Barriers to Trade (TBT) – a secretariat member that services the council or committee overseeing that agreement will assist it. In servicing panels, the secretariat can influence panel decisions and is sometimes suspected of shaping the outcome. The secretariat can do so because of the politics of expertise. It is a repeat player, well-informed of former panel and Appellate Body jurisprudence, and with considerably more time to attend to the case than the panelists. The strict time limits imposed on panels and the Appellate Body to issue their decisions further incentivizes them to rely on secretariat expertise. As Weiler writes, ‘[d]e facto, inevitably and importantly, they [the members of the secretariat] are the repository of institutional memory, of horizontal and temporal coherence, of long term hermeneutic strategy’.61 The result is the reverse of the situation of U.S. courts in which clerks are selected by judges, leave after a couple of years while the judge remains, and depend on the judge for future references.62 In the WTO, in contrast, the panelists depend on the secretariat to recommend them for selection; they leave after the panel concludes while the secretariat remains; they maintain other full-time jobs while hearing the case; they have much less (or little) incoming knowledge of the jurisprudence and thus depend on the secretariat for it; and any panelists that wish to serve on a future WTO panel depend on the secretariat for recommending them to future parties and the Director-General. 61

Weiler (n 8) 205. In other national courts, clerks are permanent employees, although so are the judges. In other international forums, such as international investment and commercial arbitrations, at times the arbitrator hires her own clerk and at times she uses the permanent secretariat provided by the arbitral institution. 62

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As regards the drafting of panel reports, although the panelists make the determinations and only their names appear on the reports, the secretariat first prepares an issue paper and typically develops and maintains the draft of the opinion.63 The secretariat is also present in panel deliberations and can provide its input and opinions based on its knowledge of the rules and precedent, and thus can be influential. As Weiler writes, the panel report thus ‘shades the truth in that the legal deliberation will often have taken place between legal secretary and other members of the secretariat and not, in any meaningful sense within the Panel’ – the legal secretary being the member of the secretariat’s legal division who drafts the report.64 As Weiler continues, the views of the secretariat will come out ‘and more invidiously will be consciously and subconsciously pushed upon the Panel’.65 Weiler writes from his experience as an actual panelist working with the legal division, as well as his discussions with others involved in panels. The rules division of the secretariat also appears to exercise significant authority over panels in the domain of import relief laws, given the technicalities of determinations under the WTO antidumping, countervailing duty and safeguard agreements and the large number of disputes (about 55 percent over the last ten years of WTO disputes).66 In sum, the secretariat exercises a rational-bureaucratic authority, in a Weberian sense. Its technical knowledge of WTO law and jurisprudence enables it to enhance its authority before panels in WTO dispute settlement. The secretariat works within a particular institutional environment that shapes its approach to legal interpretation. The WTO is a trade forum, which creates a certain epistemological orientation to trade disputes involving regulatory policy. It is not an environmental (and even less a social policy) forum in which the term ‘protection’ has a very different connotation. It is not a United Nations developmental organization in which the perceived appropriateness of certain policies can inform the degree of elasticity used in the legal interpretation of rules and exceptions 63 See e.g. Deborah Steger, ‘The Founding of the Appellate Body’ in Gabrielle Marceau (ed), A History of Law and Lawyers in the GATT/WTO: The Development of the Rule of Law in the Multilateral Trading System (Cambridge University Press 2015) 447, 453 regarding the process at the Appellate Body level. Steger notes that, at the request of Appellate Body members, the secretariat extended its issues papers to include ‘legal analysis and views on the merits of the issues appealed’, which creates a starting point for deliberations. 64 Weiler (n 8) 197. 65 ibid 205. 66 Authors’ calculations.

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as applied to developing countries. For some commentators, WTO interpreters have exhibited unconscious bias toward trade liberalization in interpreting WTO rules, as reflected in the nearly 90 percent win rate of complainants.67 A number of commentators argue this point vociferously regarding cases involving trade remedy laws.68 Economists in the secretariat’s research division can also informally influence WTO dispute settlement, although not nearly enough for some economists’ liking.69 These economists are often asked questions by the secretariat members that service panels, and they sometimes make presentations to the Appellate Body when issues arise over questions involving economic analysis. They have done so, for example, regarding questions of price suppression and causation in subsidy disputes, and the amount of authorized retaliation in the event of non-compliance.70 The secretariat not only has a particular epistemological orientation based on its background area of study and its interactions with other secretariat members within the institution. It also has an interest in safeguarding the institution and preserving the WTO system when it comes under challenge. This interest can affect its approach to politically controversial disputes that raise different interpretive alternatives. Because the secretariat is in the position of exercising such authority, their selection and background are important. The selection is to be solely merit-based though also representative of the nationality of members.71 Many members often press the secretariat to have their nationals appointed, but applicants are chosen based on a rigorous 67 Juscelino F. Colares, ‘Theory of WTO Adjudication: From Empirical Analysis to Biased Rule Development’ (2009) 42 Vanderbilt Journal of Transnational Law 383; cf Christina L. Davis, Why Adjudicate?: Enforcing Trade Rules in the WTO (Princeton University Press 2012) 18 (nearly 90 percent win rate, though she does not hypothesize this as bias, but rather as domestic political signaling that governments are defending their import-competing interests). See also Shaffer, Elsig and Puig (n 25) (noting explanations for the win rate). 68 John Greenwald, ‘WTO Dispute Settlement: An Exercise in Trade Law Legislation?’ (2003) 6(1) Journal of International Economic Law 113; Daniel K. Tarullo, ‘Paved With Good Intentions: The Dynamic Effects of WTO Review of Anti-dumping Action’ (2003) 2(3) World Trade Review 373; Cartland, Depayre and Woznowski (n 24). 69 Chad P. Bown, ‘The WTO Secretariat’ in Chad P. Bown and Joost Pauwelyn (eds), The Law, Economics and Politics of Retaliation in WTO Dispute Settlement (Cambridge University Press 2010). 70 Pauwelyn (n 37). 71 WTO, ‘Report on Diversity in the WTO Secretariat’ (1 March 2010) WT/BFA/W/195.

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three-hour written test, which in practice favors those with relative English fluency. For our purposes, it is important to understand who is on the two key divisions that take the lead in serving members – the legal division and the rules division – and in particular their senior members. The head of the legal affairs division was from the U.S. or Europe from 1995–2010, and has been from Canada from 2010–2015. The ten most senior staff (at the G9 and G10 levels) in the legal affairs division are from Canada (two), EU (four), Switzerland, Turkey, U.S. and Venezuela. The head of the rules division was from Poland from 1995–2008, and he was widely reputed to be very close to the U.S. in his views on import relief laws. The current head is from South Africa who had formerly worked in South African trade policy since the mid-1980s and directed South Africa’s Trade Remedies Unit. The seven most senior staff members of the rules division are from Australia (two), Canada, EU (two), and U.S. (two). They all have professional backgrounds applying trade remedy rules, and thus have a particular orientation toward interpreting import relief rules in a way that has been practiced in such jurisdictions. This orientation is likely an explanation for the prolonged tension between the Appellate Body and panels in interpreting the antidumping agreement’s provisions regarding the practice of zeroing in the calculation of dumping margins – long practiced in trade remedy administrations in the U.S. and Europe. Countries that regularly or periodically engage in WTO dispute settlement thus would like to have their nationals serve in these two critical divisions. The nationality of individuals in those divisions has somewhat diversified. As of August 2015, individuals from Colombia, Guatemala, Mexico, Philippines, Turkey and Venezuela served in the legal affairs division, and from China, Egypt and India in the rules division, as well as individuals from Australia, Canada, the EU, Switzerland and the United States. Yet individuals from developing countries so far have been much less likely to become senior members in these divisions. The Appellate Body has its own secretariat, and a similar analysis applies to its secretariat. Again unlike its secretariat, the Appellate Body members maintain other jobs, typically do not live in Geneva, and rely on files and drafting prepared for them by the secretariat.72 John Greenwald, a U.S. practitioner and former candidate to the Appellate Body stresses 72

See e.g. Claus-Dieter Ehlermann, ‘Revisiting the Appellate Body: The First Six Years’ in Gabrielle Marceau (ed), A History of Law and Lawyers in the GATT/WTO: The Development of the Rule of Law in the Multilateral Trading

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‘how dependent the Appellate Body are on institutional staff to prepare briefing materials, legal research, and drafts of opinions … They [the members] do much of their prep work at home, often thousands of miles away, relying on papers summarizing the facts, legal issues, and arguments of the parties prepared in their absence by the Secretariat, which then sits in, and speaks out at, Appellate Body deliberations.’73 The Appellate Body secretariat members have considerable time to master jurisprudence and develop the authority of expertise. To date, the Appellate Body secretariat’s director has been an important WTO member from North America or Europe, coming from Canada from 1995– 2005 and from the EU since then. Yet the Appellate Body members can play a much greater role and accrue much greater expertise than the average panelist in that they serve for four-year terms that typically are renewed for a total of eight years. They also deliberate as a group and share the expertise that they accrue in WTO law during their tenure, developing a broader sense of institutional authority than do panelists. They are thus more likely to work with the Appellate Body secretariat as partners in a collective institutional enterprise.

3. THE INTERPRETATION OF WTO RULES The WTO Appellate Body, panelists, and secretariat are not alone in shaping WTO dispute settlement. They must respond to information and arguments brought before them. Therefore, regarding the law and politics of the second stage of decision-making (interpretation), we first address the stakeholders and litigants who make legal arguments that come before WTO panels and the Appellate Body, and then turn to the interpretive choices that panels and the Appellate Body make. This process has its own dynamics since not all nation-states and not all stakeholders participate equally. In other words, the interpreters do not select the cases, which do not represent a random sample. Rather, particular members, typically lobbied by particular private interests, System (Cambridge University Press 2015) 498 (‘Establishing the first draft is therefore normally entrusted to the team of the Secretariat assisting the division’). 73 John D. Greenwald, ‘Comparison of WTO and CIT/CAFC Jurisprudence in Review of US Commerce Department Decisions in Antidumping and Countervailing Duty Proceedings’ (2012) 21 Tulane Journal of International and Comparative Law 261.

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select the cases. Over time, the users of the dispute settlement system shape the system, both substantively and procedurally. Who are they? 3.1 The Litigants: Public-Private Partnerships in the Shadow of the Dispute Settlement System There has been considerable study regarding which states participate in WTO dispute settlement. The predominant participants are the US, EU and China, followed by Canada, India, Brazil and Mexico. Figure 10.2 plots their relative participation, and reflects the world’s largest traders. In other words, use of the WTO dispute settlement system largely reflects patterns of global trade, although with some exceptions, such as Japan, which is under-represented.74 This pattern could suggest that the WTO dispute settlement system is not biased, especially given that success rates are similar across complainants. However, to the extent that legal arguments shape the meaning given to WTO rules, countries with large markets have more input into interpretation than others.75 Quantitative and qualitative studies show that traditional indicators of power have been replaced, in part, by a new indicator, that of legal capacity, involving a new politics, that of the politics of legal expertise. Busch, Reinhardt and Shaffer show how legal capacity affects not only who brings cases before the WTO dispute settlement system, but also the amount of antidumping duties applied when no cases are brought.76 That is, the data suggests that where a country lacks legal capacity to use WTO dispute settlement, other countries are enabled to apply higher antidumping tariffs against their products with greater impunity.77 Structural power also matters, however. Even though exports may be important for small developing countries’ economies in terms of the percentage of their GDP, the aggregate amount of exports at stake is much smaller, which reduces the cost effectiveness and incentives for 74

Joseph F. Francois, Henrik Horn and Niklas Kaunitz, ‘Trading Profiles and Developing Country Participation in the WTO Dispute Settlement System’ (2007) (working paper); Davis (n 67). 75 See e.g. Pauwelyn (n 44). 76 Guzman and Simmons also conclude in a quantitative study ‘that poor states behave differently than their rich counterparts because they lack the financial, human, and institutional capital to participate fully in the dispute resolution system’. Andrew T. Guzman and Beth A. Simmons, ‘Power Plays and Capacity Constraints: The Selection of Defendants in World Trade Organization Disputes’ (2005) 34(2) The Journal of Legal Studies 557. 77 ibid.

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Total at AB Level Third-Party-Panel Level

150 100

Respondent-Panel Level Complainant-Panel Level

50 0

Notes: Appellant, Appellee, and Third Participant. Total Panel level is based on filed cases. Panel reports are counted as having been appealed where they are adopted as upheld, modified, or reversed by an AB report. The number of panel reports appealed appear lower from these figures than in actuality because AB proceedings can address more than one panel report. Source: WTO. Appellate Body Annual Report for 2013, available at https://www. wto.org/english/thewto_e/whatis_e/tif_e/disp1_e.htm

Figure 10.2 Participants and third participants in panels and appeals (1995–2013) them to overcome political obstacles and bring cases.78 For the poorest countries, even free legal assistance may be insufficient for them to make use of WTO dispute settlement, especially when they are dependent on foreign aid.79 Members that are frequent participants in WTO dispute settlement not only try to prevail in WTO cases on the merits, they also play for rules. We give two examples, one involving a large WTO member as a 78

Håkan Nordström and Gregory Shaffer, ‘Access to Justice in the World Trade Organization: A Case for a Small Claims Procedure?’ (2008) 7(4) World Trade Review 587. 79 Thomas Sattler and Thomas Bernauer, ‘Gravitation or Discrimination? Determinants of Litigation in the World Trade Organisation’ (2011) 50(2) European Journal of Political Research 143; Manfred Elsig and Philipp Stucki, ‘Low-Income Developing Countries and WTO Litigation: Why Wake Up the Sleeping Dog?’ (2012) 19(2) Review of International Political Economy 292.

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complainant and one as a respondent. As a complainant, the EU brought an early series of safeguards cases in which the EU did not have major economic stakes, suggesting that the EU was playing for rules since it did not have safeguards legislation, unlike the U.S. and other WTO members.80 The EU’s arguments prevailed and the Appellate Body has interpreted the safeguards agreement in a stringent way, making it quite difficult for states to apply safeguards for import relief.81 Respondents also can ‘play for rules’, including to avoid rulings on particular issues. In the famous US-Shrimp-Turtle case, the U.S. only defended itself under GATT Article XX, the exceptions clause, and not in relation to the underlying claim under GATT Article XI. The U.S. could have contended that its regulation was WTO-compliant because it was a non-discriminatory domestic regulation (under GATT Article III), since the U.S. applied its rules equally to U.S. production and foreign production (involving a process standard on how shrimp are caught). The U.S. arguably did not contest the issue because it did not wish for the WTO to create jurisprudence on this point that could later be used against it, particularly because the EU might subsequently use such arguments to defend EU process-based restrictions on U.S. imports. The politics of participation involves not just nation-states but also private interests. Private parties typically lie behind the bringing of WTO cases, with those in the U.S. being most active.82 Private interests with large per capita stakes have greater incentives to organize, hire lawyers and effectively use the WTO dispute settlement system than others. Smaller stakeholders can face collective action problems in organizing for dispute settlement. The private sector in small countries, in particular, has fewer incentives to organize because the benefits from engaging in WTO dispute settlement are significantly less, while the costs are not that different.83 In the U.S.-Cotton case, it is stated that Brazil’s cotton trade association faced legal fees of around US $2,000,000.84 U.S. and 80

Krzysztof J. Pelc, ‘The Politics of Precedent in International Law: A Social Network Application’ (2014) 108(3) American Political Science Review 547. 81 Alan O. Sykes, ‘The Safeguards Mess: A Critique of WTO Jurisprudence’ (2003) 2(3) World Trade Review 261. 82 Shaffer (n 26); Davis (n 67). 83 Nordström and Shaffer (n 78). 84 Interview (20 July 2005) (noting a figure of $ 2 million). See Elizabeth Becker, ‘Lawmakers Voice Doom and Gloom on WTO Ruling’ The New York Times (28 April 2004) C1 (‘the litigation has already cost $1 million’). As for the fees in the Brazilian cotton case, interview with lawyers and trade association

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EU-based multinational firms are willing to pay even more. In the US-EU Aircraft dispute involving subsidies to Boeing and Airbus, it is estimated that fees ran at $1,000,000 per month and the dispute continued for years. When some members of the U.S. Congress raised the concern that Brazil’s case could lead to challenges to U.S. agricultural subsidies brought by other WTO Members, some analysts noted that there was not much to fear because the required legal fees would constitute ‘a sum that is prohibitive for the poor nations that suffer the most harm from cheap subsidized imports’.85 Private sector interests often differ from those of the country that brings the case, giving rise to a politics over how claims are presented and defended. The private interest wants to win the case based on the strongest arguments available. The government, in contrast, knows that it can also be a respondent and has to be accordingly careful about the arguments used. In some cases, multinational companies with investments in multiple countries may be able to shop for a country to bring a case that advances their interests. This critique is made regarding the case brought by the Dominican Republic, Honduras, Indonesia and Cuba against Australia regarding Australia’s labeling law on cigarette packages, since the large tobacco companies are behind the suit. This situation, however, is not so different than cases brought by the U.S. and EU since the U.S. and EU also are lobbied and receive support by way of legal arguments provided by law firms funded by the private sector.86 The WTO dispute settlement system can also affect trade politics domestically because it activates new interests. On the one hand, it activates export-oriented interests that can tilt domestic politics in a liberalized trade direction. These interests indirectly become allies of the WTO system.87 They can work with executive branch officials who may be empowered through an adopted panel or Appellate Body decision to

representatives in Sao Paulo, Brazil (April 2004) (referring to attorney fee estimates of between US$ 1–2 million). Similarly, Indonesia’s legal fees in the US and European challenge to its national car program also allegedly rose to around $1,000,000 through the panel stage. Discussion with a lawyer in Geneva (7 February 2003). However, Indonesia’s fees in the auto case allegedly were not paid in full when the Suharto government fell in the wake of the Asian financial crisis. Discussion with former WTO secretariat member (12 February 2003). 85 See ibid. 86 Shaffer (n 26). 87 Helen V. Milner, ‘The Political Economy of International Trade’ (1999) 2(1) Annual Review of Political Science 91, 95, 97.

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liberalize domestic law (i.e. make it more open to foreign trade) where otherwise no change would have occurred.88 The dispute settlement system can also catalyze activist groups concerned with the implication of WTO decisions on domestic regulation, such as environmental and health regulation. Arguably the TRIPS Agreement helped to spur a new movement to recognize the economic and social right to health in the context of access to medicines issues.89 More generally, the legalization and judicialization of trade relations under the WTO often indirectly spurs new forms of domestic regulation in response to trade liberalization.90 The internal politics behind WTO dispute settlement is particularly salient in democracies when the executive can signal to the legislature and important private stakeholders that it is working hard to support export interests as a complainant and importcompeting and other regulatory interests as a respondent.91 As private parties hire lawyers to represent them, lawyers have become increasingly central to the process. The Appellate Body first recognized that private lawyers could be part of a national delegation in the EC-Bananas case, when the island of Saint Lucia had included them.92 Private lawyers now often not only write legal briefs behind the scenes, but also present oral arguments for developing countries before panels and the Appellate Body. In the process, the WTO dispute settlement system has become technically much more complex. New procedural challenges and rulings are now frequently made, raising the cost of representation. As legal costs increase, the system shapes the incentives of who organizes to participate in WTO dispute settlement, which affects which arguments are brought to panels and the Appellate Body, which, in turn, shapes WTO jurisprudence.93

88

Goldstein and Steinberg (n 30). Laurence R. Helfer, ‘Toward a Human Rights Framework for Intellectual Property’ (2006) 40(3) UC Davis Law Review 971. 90 Shaffer, Elsig, and Puig (n 25). 91 Davis (n 67). 92 Jeffrey L. Dunoff, ‘The WTO in Transition: Of Constituents, Competence and Coherence’ (2001) 33 George Washington International Law Review 979, 994. 93 Nordström and Shaffer (n 78). 89

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3.2 The Politics of Interpretation Many law and economics commentators refer to the WTO agreements as incomplete contracts.94 They contend that WTO members have delegated authority to panels and the Appellate Body because the cost of specifying rules in advance is too high given the uncertainty of situations that cannot be fully foreseen. This point is correct, but it does not begin to address the political implications of different interpretive choices. To assess these political implications, we look at the following two issues: (i) the implications of interpretive choices that involve a judicial allocation of authority to different institutions; and (ii) the audience for interpretation that in turn indirectly shapes and constrains it. First, WTO decisions are not autonomous in some top-down sense. WTO panels and the Appellate Body rather make decisions before particular audiences that can, in turn, shape their interpretive choices. To start, they do so before WTO members. All of their decisions are subject to discussion before the WTO DSB before formal adoption. The DSB most dramatically called the Appellate Body to task for its decision over the acceptance of amicus curiae briefs, which clearly affected panel and Appellate Body practice.95 Most importantly, WTO panels and the Appellate Body are concerned with compliance with their decisions, which upholds the legitimacy of the system, a point we address in Part 4. Their decisions are also frequently reported in international media, especially in light of the large civil society protests that have been held against the WTO. The careful language found in panel and Appellate Body reports involving non-trade concerns, such as environmental and health issues, is targeted at these broader audiences. National officials realize the role of the broader public in WTO cases. For example, a U.S. representative in the Brazil-Cotton case stated that ‘he had not fully realized that he was about to lose the case until his wife told him “that she read about the case in the New York Times! …” at that stage I knew we would lose the case’.96 A broader interpretive community, including legal scholars, also assesses and criticizes the reasoning of panel and Appellate Body

94

Mavroidis (n 50). Petros C. Mavroidis and Simon F. Deakin, ‘Amicus Curiae Briefs Before the WTO: Much Ado About Nothing’ (2001) New York University School of Law Jean Monnet Working Paper No. 2. 96 Elsig and Stucki (n 79). 95

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decisions. Scholars form part of a broader epistemic trade law community that can affect interpretation. Some scholars target their articles directly in the hope of shaping interpretation. For example, the widelycited article by Robert Howse and Donald Regan critiquing the productprocess distinction that had long been used in the trade law community may have helped caution WTO jurisprudence regarding process-based environmental regulation, which has become more deferential to such state measures. The Appellate Body in the subsequent US-Shrimp-Turtle case attempted to finesse the issue, while finding the revised U.S. measure to be in compliance with WTO requirements.97 Scholars from the U.S. and Europe tend to be most active, privileging their views, representing a form of knowledge politics. The Appellate Body has taken certain steps in order to enhance the information it receives regarding member and stakeholder views in dispute settlement.98 It eased the qualifications for members to participate as third parties in disputes, facilitating a significant increase in third-party participation. It permitted parties to include private lawyers in their delegations, which enhances the sophistication of the arguments made by governments that otherwise have low levels of internal legal capacity, and makes it more feasible for them to participate in the first place. And the Appellate Body has permitted the submission of amicus curiae briefs representing the views of civil society and other stakeholders. In all these cases the Appellate Body receives greater information regarding WTO member and stakeholder views than it otherwise would. Second, interpretive choice entails institutional choice, having significant political implications. That is, when a judicial body interprets legal provisions, it effectively allocates authority over the issue to a particular institution. In earlier work, Shaffer addressed interpretive choice in terms of five ideal types of institutional allocation of authority: allocation to domestic political and regulatory institutions; to global markets; to international political institutions; to the judicial process through ‘balancing’ and proportionality analysis; and to domestic institutions subject to enhanced procedural checks.99 These institutional choices affect who 97

Gregory Shaffer, ‘Compulsory and Institutional Power in the WTO Context: The Shaping, Application and Effects of WTO Rules’ in Michael Barnett and Raymond Duvall (eds), Power in Global Governance (Cambridge University Press 2005) 98. 98 James McCall Smith, ‘WTO Dispute Settlement: The Politics of Procedure in Appellate Body Rulings’ (2003) 2(1) World Trade Review 65. 99 Shaffer (n 97). In parallel, Joost Pauwelyn and Manfred Elsig have addressed the politics of using different interpretive methodologies that give rise

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participates in regulatory choices, as well as compliance prospects (Part 4). They thus affect economic and policy outcomes. In their interpretation of GATT and other WTO provisions, panels and the Appellate Body have made each of these institutional choices in different contexts. They have interpreted WTO rules to show deference to a national political body, in which case foreigners are less represented in the decision-making process (as done in the EC Asbestos and BrazilTyres cases). They have held against national measures in a way which delegates decision-making to markets, as when they favor the use of product labeling over product bans (as done in the US-Tuna-Dolphin cases under the GATT and the Japan-Alcohol and ensuing alcoholic beverages cases under the WTO). They have deferred to other international rules and attempted to bolster multilateral political processes, as when they defer to food standards adopted through the Codex Alimentarius Commission (as they did in the EC Sardines case). They have balanced trade interests against the importance of the regulatory concerns under a type of proportionality analysis (as they did in the Korea-Beef case). And they can create procedural obligations so that domestic administrative decision-making provides greater due process to foreign interests (as they did in the US-Shrimp-Turtle and EC-Seal Products cases). Alec Stone Sweet notes how the doctrine of proportionality enables an international court to balance interests in a relatively openended way that leads to judicial aggrandizement over policy choice.100 We agree. But this is just one institutional choice among others. In making interpretive choices, WTO panels and the Appellate Body effectively allocate power to different social decision-making institutions.101 These decisions interact dynamically with other political, judicial, administrative and market processes. For example, the decisions shape future inter-state bargaining over rules. They may do so directly in WTO negotiations, as evidenced by the salience given to negotiations over cotton subsidies following the US-Cotton case. They also can do so by to different interpretations, which in turn have substantive implications. Joost Pauwelyn and Manfred Elsig, ‘The Politics of Treaty Interpretation: Variations and Explanations Across International Tribunals’ in Jeffrey L. Dunoff and Mark A. Pollack (eds), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (Cambridge University Press 2013). 100 Alec Stone Sweet and Jud Mathews, ‘Proportionality Balancing and Global Constitutionalism’ (2008) 47 Columbia Journal Transnational Law 72. 101 Shaffer (n 97). Gregory Shaffer and Joel Trachtman, ‘Interpretation and Institutional Choice at the WTO’ (2011) 52 Virginia Journal of International Law 105.

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spurring nation-states to develop hard and soft law norms through other institutions, as under the Cartagena Protocol on Biosafety implicating genetically modified foods and seeds, the Kimberley Process regarding conflict diamonds, and the work of the World Health Organization and United Nations bodies regarding access to medicines.102

4. THE POLITICS OF COMPLIANCE AND SETTLEMENT The third stage of governance we discuss is the implementation of, and compliance with, WTO rulings. Compliance with the rules of course is not the only interest of parties filing a case. Parties may bring a case of low economic value in order to establish principles, such as the transparency of bureaucratic decision-making, reflected in the EC-Bananas saga, or the use of safeguard measures, reflected in the early ArgentinaSafeguards case brought by the EC.103 Moreover, parties may resolve a case through the provision of some form of compensation where there is no compliance with WTO rules, but the parties settle their dispute and remove it from the WTO agenda. In terms of compliance, scholars often distinguish between compliance with the rules (1st order compliance) and compliance with the decisions of legal institutions (2nd order compliance). Both types of compliance are notoriously difficult to measure.104 For 1st order compliance, the challenges are measuring what the international rule actually requires, on the one hand, and actual national practice, on the other hand. Even if a nation formally enacts an international rule in national legislation so that it becomes part of national law (the national law-in-the books) and that national law mirrors the international rule, this action does not necessarily reflect compliance, because to evaluate compliance one must 102 Mark A. Pollack and Gregory C. Shaffer, When Cooperation Fails: The International Law and Politics of Genetically Modified Foods (Oxford University Press 2009). 103 Pelc (n 80). 104 Lisa L. Martin, ‘Against Compliance’ in Jeffrey L. Dunoff and Mark A. Pollack (eds), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (Cambridge University Press 2013); Jana Von Stein, ‘The Engines of Compliance’ in Jeffrey L. Dunoff and Mark A. Pollack (eds), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (Cambridge University Press 2013); Manfred Elsig, ‘WTO Dispute Settlement and the Study of Compliance’ (2015) 14(3) Journal of International Trade Law and Policy 112.

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assess actual national practice (the national law-in-action). Similarly, for 2nd order compliance, the challenges are measuring what the ruling actually requires and actual national practice, both of which may be disputed and be far from clear. These challenges hamper efforts to quantify compliance rates with WTO panel and Appellate Body decisions. The WTO secretariat tends to consider that a case removed from the DSB record of ongoing disputes indicates compliance.105 The removal of a case from the record, however, only indicates settlement, and the settlement often only reflects partial compliance. In practice, the parties to a dispute negotiate how the respondent’s policy must be adjusted in response to a WTO panel or Appellate Body ruling, involving degrees of policy adjustment. The high number of WTO cases settled through the instrument of a ‘Mutually Agreed Solution’ (MAS) illustrates that compliance is far from perfect when a matter is formally settled. Wolfgang Alscher estimates that parties resolve around one-third of WTO complaints that result in a panel ruling through this mechanism, whereby they formally notify their negotiated settlement to the WTO.106 Such 105 Valerie Hughes, director of the secretariat’s legal affairs division, writes ‘The overall rate of compliance with WTO dispute settlement rulings is very high – somewhere between 85 and 95 per cent, depending on when and how you count non-compliance.’ Valerie Hughes, ‘Working in WTO Dispute Settlement: Pride Without Prejudice’ in Gabrielle Marceau (ed), A History of Law and Lawyers in the GATT/WTO: The Development of the Rule of Law in the Multilateral Trading System (Cambridge University Press 2015) 414. See also former division director Bruce Wilson’s similar remarks. Bruce Wilson, ‘Compliance by WTO Members with Adverse WTO Dispute Settlement Rulings: The Record to Date’ (2007) 10(2) Journal of International Economic Law 397. The WTO contains a specific approach to multilateral surveillance. Until the losing member ‘officially’ complies with the ruling or otherwise settles the case, the matter remains on the monthly agenda of the DSB where the member must respond to questions and explain its plans to the membership. The losing member is thus subject to ongoing diplomatic pressure within the WTO institution to resolve the issue. 106 Wolfgang Alschner, ‘Amicable Settlements of WTO Disputes: Bilateral Solutions in a Multilateral System’ (2014) 13(1) World Trade Review 65. According to Pelc and Kucik, settlements are more prone to discrimination such that the complainant is more likely to gain at the expense of other members. Jeffrey Kucik and Krzysztof J. Pelc, ‘Measuring the Cost of Privacy: A Look at the Distributional Effects of Private Bargaining’ (2015) British Journal of Political Science 1. Reynolds also estimates that the WTO lists 33 percent of the cases as pending because the disputing members have not removed them from the agenda before the DSB, even though the complainants have dropped or

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mutually agreed solutions involve diplomatic negotiations where power matters, albeit in the shadow of the law. The parties may not communicate the full content of the settlements, making it difficult to measure the degree of compliance, including the implications of the settlement for other WTO members. One reason that parties negotiate deals that result in less than full compliance is because the WTO’s remedies are weak. Where the respondent fails to comply or offer compensation, the complainant can only seek authorization to withdraw trade concessions affecting an equivalent amount of the respondent’s trade. Thus the challenged market barrier would remain. Moreover, this remedy is only prospective, so that the withdrawal of trade concessions can only occur after the case is concluded, which is years after it was commenced. These weak remedies reduce the complainants’ leverage in negotiating a final settlement. Moreover, a respondent may engage in a strategy of what can be called ‘uncompliance’, pursuant to which it formally complies with the ruling, but finds another means to deny market access to the other parties.107 In that case, the respondent formally has complied, but done so in a way where the ruling has no economic effect. Where the respondent finds new means to deny market access, the complainant would have to start the WTO legal process again. One study found that a complainant’s exports to the respondent did not typically increase following a successful WTO claim.108 Since the process of formal compliance followed by uncompliance can continue, parties have a further incentive to reach ‘mutually agreed solutions’ that resolve the dispute without full compliance. With China’s entry into the WTO and its rapid rise as an economic power, WTO dispute settlement appears to have become further politicized. The U.S. and EU contend that China has threatened to retaliate against U.S. and European companies with investments in China to deter settled many of the cases. Kara M. Reynolds, ‘Why are so Many WTO Disputes Abandoned?’ in James C. Hartigan (ed), Trade Disputes and the Dispute Settlement Understanding of the WTO: An Interdisciplinary Assessment (Emerald 2009). 107 David J. Townsend and Steve Charnovitz, ‘Preventing Opportunistic Uncompliance by WTO Members’ (2011) 14(2) Journal of International Economic Law 437. 108 Stephen Chaudoin, Jeffrey Kucik and Krzysztof Pelc, ‘Do WTO Disputes Actually Increase Trade?’ (2013) American Political Science Association 2013 Annual Meeting; but cf. Bown (finding a positive, albeit very small, increase in imports following a dispute). Chad P. Bown, ‘On the Economic Success of GATT/WTO Dispute Settlement’ (2004) 86(3) Review of Economics and Statistics 811.

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them from providing U.S. and EU officials with evidence to support a WTO claim, and to request the U.S. and EU not to bring it.109 Such a tactic treats the filing of a legal case as a hostile political act. These political tactics apparently have had some success. At a meeting with business representatives, one high-level EU official compared initiating a WTO case with using a ‘nuclear weapon’. His comment chagrined private lawyers who were present because it suggested that private companies should forbear pursuing the defense of WTO legal rights.110 A variety of structural and domestic political factors affect the degree of compliance. Structurally, the WTO remedy of retaliation based on a withdrawal of equivalent concessions favors those exercising market power. When the U.S. or EU threatens retaliation against a small country, it exercises significant leverage because of the importance of its markets to that country. In contrast, when a small country threatens retaliation against the U.S. or EU, it exercises much less leverage because its market is relatively unimportant. This asymmetry becomes more pronounced when the small country is dependent on foreign aid from the U.S. or EU. Internal political factors also shape compliance. Interest groups that profit from non-compliance lobby their governments to either water down compliance or find new means to deny market access. Compliance is generally more challenging in politically sensitive cases that involve social policy, such as measures involving human health claims (such as involving hormones in beef or genetically modified foods) and environmental claims (such as requirements to use fishing methods that reduce adverse impacts on dolphins and sea turtles).111 Domestic factors also facilitate compliance and counter protectionist interest group pressures. The WTO system tends to enroll domestic executive officials who have reciprocity interests – governments comply as a respondent so that their trading partners are more likely to comply when the government is a complainant. Since executive officials are on both sides of disputes (as complainants and respondents), they are more sensitive to the broader implications of non-compliance. In other words, even where a powerful WTO member faces a complaint from a small country, it has concerns over reciprocity and reputation that involve the broader WTO membership. If it does not comply with a decision, other 109

Interviews with former USTR official and European legal counsel (2013– 2014); see also Keith Bradsher, ‘Retaliatory Attacks, Online: Firms That Challenge China on Trade Face Cybertheft’ The New York Times (20 May 2014) B1. 110 Discussion with participant at such meeting in London, UK (14 May 2014). 111 Sattler and Bernauer (n 79).

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WTO members may not comply with rulings in which it is a successful complainant, adversely affecting its export-oriented producers. The WTO system thereby also enrolls domestic export interests that want their government to comply so that other WTO members comply as well, which advances their export interests. Where political opposition impedes compliance, the WTO enforcement system is designed to enhance leverage toward it. If the respondent does not comply, the complainant may withdraw an equivalent amount of concessions against its exports. Complainants target their retaliation so as to maximize political pressure on the respondent. When the U.S. or EU threaten retaliation against each other, for example, they target the other side’s politically powerful export interests.112 Their aim is to spur these export interests to press their government to comply. The risks of non-compliance can reciprocally inform the Appellate Body’s and panels’ interpretation of WTO rules over time, involving a form of interpretive politics. For example, the Appellate Body appears to recognize that immediate compliance is facilitated when its ruling only requires action by the executive and not the legislative branch. In a large number of cases, the WTO panel or Appellate Body has found that the underlying national law was not WTO-inconsistent, but rather only the country’s administrative practice needed to change. Such a finding facilitates compliance where the executive does not need to go back to the legislature to implement the ruling. This interpretive choice is, in practice, an institutional choice, as noted in Part 3. The panel made this finding, for example, in the US-Section 301 and EU-GMO cases, and the Appellate Body did so in the US Shrimp-Turtle case. Generally, the Appellate Body’s jurisprudence regarding sensitive domestic policies, such as food safety and environmental concerns, appears to have softened, which eases compliance prospects.113 In some cases, both the complainant and respondent may critique a panel or Appellate Body decision because of its systemic implications. When they do so, they send a powerful signal to panels and the Appellate Body. This signaling occurred most notably in the Australia-Automotive Leather case. The U.S. won the case involving Australian subsidies to automotive leather producers and the panel issued a recommendation that Australia remove the subsidies and that the recipient return the subsidies 112 Gregory Shaffer and Dan Ganin, ‘Extrapolating Purpose from Practice: Rebalancing or Inducing Compliance’ in Chad P. Bown and Joost Pauwelyn (eds), The Law, Economics and Politics of Retaliation in WTO Dispute Settlement (Cambridge University Press 2014). 113 Sattler and Bernauer (n 79).

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already received to the government, constituting a form of retrospective remedy. Even though the U.S. won the case, it rebuked this aspect of the ruling because it opposed the application of retrospective remedies in antidumping and subsidies cases, which could also be applied against the U.S. in future cases. WTO panels and the Appellate Body appear to have received the signal. No WTO panel or Appellate Body decision has since recommended any retrospective remedies, even though panels and the Appellate Body have the interpretive option to do so. In sum, while many legal commentators have expressed great optimism about compliance with WTO rulings, a more in-depth analysis shows that the actual record on compliance is more difficult to establish. Nonetheless, the WTO has created a judicialized system that helps to enhance leverage for a country to press for compliance or otherwise receive some form of compensation.

5. CONCLUSION The WTO dispute settlement system represents a significant legalization of world politics, arguably the greatest amount of legalization that we know at the multilateral level. Yet the WTO dispute settlement system remains fragile.114 Its crown jewel, the Appellate Body, remains ‘a young plant that need[s] protection’.115 Politics clearly remains at the three governance stages of the selection of panelists and Appellate Body members, the interpretation of the rules, and compliance with the rulings. The chapter demonstrates how the politics of these three stages interact. The selection of WTO panelists, Appellate Body members and secretariat officials affects the interpretation of WTO rules. Certain interpretations, in turn, encounter stark resistance, leading to compliance challenges. The compliance challenges, which threaten the authority of panels and the Appellate Body, can, in turn, inform subsequent interpretive choices, as well as the selection process. Law and politics continuously interact, with law providing the institutional setting in which politics maneuvers, and politics shaping that institutional setting. To date, the major actors in the system have tried to find a balance between law and politics so that disputes are settled and the system remains resilient to political pressures that could undermine it. The WTO system fared well through the 2008 financial crisis, exhibiting the power 114 115

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of an institution to ward off political pressures for protection in challenging economic times.116 Similarly, it is quite remarkable that, unlike any other area of international relations, China and Russia engage with law and dispute settlement to resolve trade disputes with the U.S. and Europe before the WTO. This engagement is reflected in the 47 cases in which China has been a complainant or respondent, and the 130 cases in which it has been a third party, in WTO disputes since its joining of the WTO in December 2001 through December 2015.117 Yet shifts in global economic power with the rapid rise of China and other emerging economies, and the challenges of dealing with economic models that include state-owned enterprises and other forms of government intervention in the economy, pose ongoing challenges to the WTO dispute settlement system. A move to an ideal type of judicialized dispute settlement with strong remedies, effective sanctions for all WTO members, and independent judges issuing rulings oblivious of politics, is inconceivable. But a return to the more diplomatic jurisprudence of the GATT seems unlikely as well. The precise mix of law and politics will shift over time: both will remain, affect each other, and together affect outcomes.

116 Hiau Looi Kee, Cristina Neagu and Alessandro Nicita, ‘Is Protectionism on the Rise? Assessing National Trade Policies During the Crisis of 2008’ (2013) 95(1) Review of Economics and Statistics 337, 342–346; Chad P. Bown and Meredith A. Crowley, ‘Emerging Economies, Trade Policy, and Macroeconomic Shocks’ (2014) 111 Journal of Development Economics 261. 117 Gregory Shaffer and Henry Gao, ‘China’s Development of WTO Legal Capacity’ (2016) (draft on file). In its first three years of membership, Russia was a party to nine cases, and a third party to an additional 22 cases. See WTO website, accessed 14 September 2016 at https://www.wto.org/english/tratop_e/ dispu_e/dispu_by_country_e.htm.

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11. The politics of international intellectual property law Susan K. Sell

Few areas of international law are more intensely political and contested than intellectual property law. Over the past 20 years, controversies over access to medicines, Internet freedom, and privacy have all sparked massive protests and mobilized transnational opposition to overly strong property rights. For their part, rights holders have pushed hard to extend the reach and enforceability of their rights. Both intellectual property rights advocates and those seeking greater legal flexibility and increased access to intellectual property have engaged in high-stakes legal and political battles. This chapter examines the actors, their interests, the rules and institutions that shape these ongoing dynamics. It discusses the governance system for international intellectual property policy and the stages of its evolution. Negotiations over international intellectual property are never over because contestation animates this policy space.1 Actors agree to rules at Time One that they seek to change at Time Two. Why? Some cherish the gains that they achieved at Time One and may seek to expand them. The agenda setters at that stage are pleased with their gains. But unwitting victims of regulatory and legal change may protest at Time Two. The outcome of Time Two may reallocate norms and power.2 Time Three ushers in yet another calibration of the balance of interests, norms and power to reconfigure both rules and institutions governing this issue area. As Eckstein reminds us, ‘the “relentless particularity of experience” guarantees that rules are in a continuous, never-ending process of change’.3 1 Wayne Sandholtz and Christopher A. Whytock, ‘The Politics of International Law’, chapter 1 in this volume. 2 Tai-Heng Cheng, ‘Power, Norms, and International Intellectual Property Law’ (2006) 28 Michigan Journal of International Law 109, 113. 3 Quoted in Harry Eckstein, ‘A Culturist Theory of Political Change’ (1988) 82 American Political Science Review 789 (as cited in Sandholtz and Whytock (n 1) 6).

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Looking at the role of institutions can help us focus on causal processes of change over time. As Daniel Nexon suggests we can treat institutions as, ‘analytic focal points for translating processes at different scales and in different domains into historically specific outcomes’.4 Actors can activate different institutions by casting issues into different frames. Over time actors have framed intellectual property as: a public policy issue; a trade issue; a public health issue; a free speech and privacy issue; and most recently as an investment issue. Martii Koskenniemi points out that ‘in a world of plural regimes, political conflict is waged on the description and re-description of aspects of the world so as to make them fall under the jurisdiction of particular institutions’.5 The inherent tension within the concept of intellectual property between private rights and public obligations guarantees an ongoing tug-of-war of interpretation and institutional homes.6 As this chapter demonstrates, this tension has led to frequent ‘governance collisions’ across multiple scales and institutions.7 Intellectual property laws and regulations produce winners and losers. The distributive implications guarantee that questions of power and legitimacy will be contested. Despite several efforts to fence off law from the political arena they are destined to fail. Whether in secret negotiations that exclude major stakeholders or in secret arbitration chambers, intellectual property policy cannot remain behind a firewall. Intellectual property includes patents, copyrights and trademarks. Trademarks provide signals of quality to the consumer. Copyrights and patents offer temporary monopoly privileges as incentives to spur creativity and innovation. This chapter traces the evolution of international intellectual property contestation. It demonstrates the roles that power, framing, law and institutions play and how actors strategically deploy these resources in order to try to achieve their preferred outcomes in the face of contestation. The chapter is organized around five successive frames and shows how different frames mobilize different constituencies 4 Daniel Nexon, ‘Historical Institutionalism and International Relations’ E-International Relations (2012), accessed 15 September 2016 at http://www.eir.info/2012/04/16/historical-institutionalism-and-international-relations. 5 Martti Koskenniemi, ‘The Fate of Public International Law: Between Technique and Politics’ (2007) 70 The Modern Law Review 1, 7. 6 Valbona Muzaka, ‘Contradictions, Frames and Reproductions: The Emergence of the WIPO Development Agenda’ (2013) 20 Review of International Political Economy 215, 218. 7 Michael Zürn and Benjamin Faude, ‘On Fragmentation, Differentiation, and Coordination’ (2013) 13 Global Environmental Politics 119, 120.

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and activate different institutions. This contestation is pursued in multiple venues at multiple scales, from multilateral institutions, transnational advocacy campaigns, to domestic policy and everything in between. Part 1 examines intellectual property as an incentive to promote public policy goals. Part 2 explains how it was recast as a trade issue in the 1970s and 1980s, paving the way for the multilateral Agreement on Trade-related Intellectual Property Rights (TRIPS) in the World Trade Organization. Part 3 analyzes transnational mobilization to reframe intellectual property as a public health issue in the throes of the HIV/AIDS pandemic of the late 1990s and early 2000s. Part 4 illustrates a recursive dynamic between foreign economic policymaking and domestic law, in which a free speech and privacy framing challenged domestic law and brought down a plurilateral agreement. Finally, the chapter presents the expansive framing of intellectual property as an investment issue. This is hardly an exhaustive list of frames. Others include: security (especially cybersecurity); human rights; climate change; sustainable agriculture; and traditional knowledge. Yet in the interests of clarity and space limitations, my focus is narrower than the entire universe of potential frames.

1. FRAME 1: INTELLECTUAL PROPERTY AS PUBLIC POLICY Words matter in intellectual property policy. The term ‘intellectual property rights’ conjures up powerful, yet misleading, claims that intellectual property is ‘property’. Intellectual property is not real property. It is a socially constructed scarcity of things that are not formally scarce. A hammer is real property. We both cannot use one hammer at the same time. The same thing is not true of intellectual property. Intellectual property rights are not ‘rights’ in the same sense as natural rights or human rights. They are only temporary monopoly privileges that the state grants to serve public policy goals. They give the holder temporary exclusive rights to make, use, sell and withhold goods and services based on intellectual property. Historically, people’s conceptions of what constitutes invention and what constitutes authorship have shifted. In the United Kingdom the early letters of patents did not reward the ‘inventor’. Instead the Crown would grant the letter of patent to whomever brought a useful invention to the kingdom. If a Venetian glass maker brought glass-blowing technology to the United Kingdom the Crown would grant the letter of patent to that person. The glass blower could get the letter of patent even

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though that person had nothing to do with its invention. The Crown rewarded the person who transferred the technology. Intellectual property protection offers legal and social benefits. It can promote innovation by giving an inventor or creator a temporary monopoly and the exclusive right to use or capitalize on that monopoly. Intellectual property protection is a social bargain: ‘We’ll give you a temporary monopoly in exchange for your making it available to the public.’ Depending on a country’s stage of economic, cultural and technological development such temporary monopoly privileges may be considered essential or detrimental. Copyright piracy could be considered to be theft as it is in the United States today, or it could be considered to be an important tool of public policy. Copyright piracy may better serve people in neglected markets by expanding affordable access to software and educational materials.8 Denying patent protection for certain products or processes may serve specific development goals. For example India, the contemporary generic ‘pharmacy of the poor’, built a robust and globally competitive generic pharmaceutical industry by denying patents on pharmaceutical products. Reverse engineering and learning by doing can help to develop indigenous skills.9 Words that rights holders use frequently, such as ‘theft’ and ‘piracy’, are loaded. They neglect the public policy logic behind intellectual property. In general, technology importers benefit from lax standards of protection, whereas technology exporters benefit from stringent standards. First movers benefit from monopoly privileges, but innovation is a social and cumulative process. Innovators who ‘stand on the shoulders of giants’ benefit from limits on monopoly privileges.10 Historically governments often subordinated intellectual property protection to promote social objectives. For example in the past, public policymakers designed intellectual property policies to attract and retain skilled artisans in their territory. They sought to develop agriculture. Although it may be hard to imagine in the world of IP-dependent Monsanto, land grant universities in the United States distributed seeds for free when the government was encouraging people to settle the west. 8

Joe Karaganis, Media Piracy in Emerging Markets (Social Science Research Council CreateSpace Independent Publishing Platform 2013). 9 Susan K. Sell, Power and Ideas: North-South Politics of Intellectual Property and Antitrust (State University of New York Press 1998) 48–9. 10 Suzanne Scotchmer, ‘Standing on the Shoulders of Giants: Cumulative Research and the Patent Law’ (1991) 5 Journal of Economic Perspectives 29.

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The U.S. government promoted a policy to develop arable land to feed a growing population. Early American copyright policy aimed to encourage literacy and create indigenous American literature and cultural traditions. Therefore the U.S. government refused to honor foreigners’ copyrights in literature. U.S. printers would make mimeographed copies of Charles Dickens’ works and sell them for pennies a book to make sure that Americans had access to high-quality English literature. Other policy goals could be to provide jobs and to promote public interests such as access to medicines. Nutrition, education and health are the essential components that make economic development possible. Many governments have prioritized these public policies over private rights. In recent years the balance between promoting innovation, on the one hand, and disseminating the fruits of innovation through access, on the other, has been lost. Private rights have trumped public obligations. Increasingly advocates for intellectual property rights have promoted them as ends in themselves rather than as means for social ends. As Cheng points out, ‘in many IP conflicts, other interests are at stake beyond the economic benefits or costs derived from control over or access to IP’.11 As this chapter highlights, the current system produces troubling outcomes, including unnecessary deaths due to unaffordable medicines and investor-state dispute settlement provisions in trade treaties that seek to prevent countries from adopting public health measures such as drug cost containment and tobacco regulation.

2. FRAME 2: INTELLECTUAL PROPERTY AS A TRADE ISSUE How did this happen? During the rulemaking stage IP rights holders promoted a new frame and a new agenda. In the 1970s and 1980s US-based rights holders complained to Congress that other countries did not respect their intellectual property rights abroad and that they were losing billions of dollars as a result. An influential U.S. copyright group, the International Intellectual Property Alliance (IIPA) representing 1350 software, movie, recording and publishing firms, reported to the International Trade Commission that it had lost $1.5 billion annually to

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piracy.12 Groups like the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA) and agricultural chemical producers argued that they were not competing on a level playing field. They sought government help to get their rights enforced abroad. Pharmaceutical firms and software producers also expressed concern and sought remedies through trade legislation and the office of the United States Trade Representative (USTR). With its large domestic market, advocates of these interests believed that the United States could link intellectual property enforcement to the respective carrots and sticks of market access and trade sanctions. These influential actors were more interested in the private benefits that they could get from intellectual property protection than in the public benefits of dissemination. They redefined intellectual property as a trade issue and emphasized the benefits to the United States as being ‘jobs’, ‘competitiveness’ and ‘innovation’. Policymakers were very receptive to their message. At that time the United States was concerned about the economic rise of East Asia and Japan and U.S. trade and budget deficits. The sectors asking for protection – pharmaceuticals; software; agricultural chemicals; and entertainment (music, movies, and publishers) – all enjoyed export surpluses and were able to make a compelling case to lawmakers. In response, the U.S. Congress passed domestic laws aimed at the US’s foreign trading partners. A series of revisions to the U.S. trade laws throughout the 1970s and 1980s linked U.S. trade policy to foreigners’ protection of U.S.-held intellectual property and threatened violators with trade sanctions. The revisions increased the power of the Office of the USTR to initiate cases on its own motion. Representatives of firms pressing for stronger intellectual property protection abroad served on the USTR’s advisory boards. These firms had institutionalized access to the USTR. The USTR relied on data that interested firms provided to estimate economic damages and losses incurred by foreign ‘piracy’. Under Special 301 of the Omnibus Trade and Competitiveness Act of 1988, it also initiated an annual naming and shaming exercise that would put countries on notice that they were courting U.S. trade sanctions if they did not better protect U.S.-held intellectual property. Domestic law reflected private power. None of the countries targeted under Section 301 had violated any international legal obligations. This 12 Duncan Matthews, Globalising Intellectual Property Rights: The TRIPs Agreement (Routledge 2002) 21.

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was a unilateral attempt to use domestic law to punish the perfectly legal actions of foreigners that U.S. firms did not like. These IP-dependent firms’ economic clout and their participation on USTR’s advisory boards amplified their influence. Changes in domestic institutions and law strengthened the role of this domestic private power and facilitated the projection of that power abroad.13 Early successes in getting foreign trading partners such as Taiwan, Hungary and South Korea to adopt intellectual property laws prompted interested firms to work with Congress and USTR to explore ways to export the U.S. approach more widely. They continued to press USTR to invoke Special 301 of the trade law to threaten trading partners with economic sanctions for failing to protect U.S.-held intellectual property rights. Many countries objected to what they saw as U.S. bullying, ‘aggressive unilateralism’, and claimed that the U.S. was acting unfairly as ‘judge, jury, and executioner’.14 While U.S. trading partners questioned the legitimacy of the unilateral projection of law, U.S.-based firms sought to expand the reach of U.S. domestic law through a multilateral instrument. As Scott Burris points out, the firms ‘gathered and mobilized governing resources through the organizational site of trade institutions’.15 In 1985 International Business Machines CEO John Opel asked an economist to draft language for an international agreement to protect computer software. Economist Jacques Gorlin produced a document on the international protection of software that became the basis of a concerted effort to inscribe the U.S.-based trade approach into the multilateral trading system.16 John Opel and Edward Pratt, of Pfizer Pharmaceutical, lobbied to include intellectual property in the multilateral trading system through the upcoming Uruguay Round of General Agreement of Trade and Tariff (GATT) negotiations. Gorlin organized the Intellectual Property Committee (IPC), including the CEOs of 12 U.S.-based global firms. In 1986 the IPC 13

Susan K. Sell, ‘The Rise and Rule of a Trade-Based Strategy: Historical Institutionalism and the International Regulation of Intellectual Property’ (2010) 17 Review of International Political Economy 762. 14 Jagdish Bhagwati and Hugh Patrick, Aggressive Unilateralism: America’s 301 Trade Policy and the World Trading System (University of Michigan Press 1991). 15 Scott Burris, Michael Kempa and Clifford Shearing, ‘Changes in Governance: A Cross-Disciplinary Review of Current Scholarship’ (2008) 41 Akron Law Review 1, 9. 16 Jacques Gorlin, A Trade-Based Approach for the International Copyright Protection of Computer Software (1985).

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included Bristol-Myers; CBS; Du Pont; General Electric; General Motors; Hewlett-Packard; IBM; Johnson & Johnson; Merck; Monsanto; and Pfizer. The IPC members worked with their private-sector counterparts in Europe and Japan to put intellectual property on the trade agenda. This transnational interaction ultimately shaped both domestic institutions and global market governance.17 In Europe the IPC found sympathetic firms and business representatives in the pharmaceutical and publishing sectors: in Japan their collaborators came from consumer electronics and software industries.18 Private sector rights holders from Japan, Europe and the United States produced the 1988 trilateral document, ‘Basic Framework of GATT Provisions on IP’, that presented their preferred approach.19 Negotiators debated the merits of incorporating intellectual property into the trade regime. Many developing countries including India, Thailand, Argentina and Brazil preferred to keep the issue out of the trade regime. USTR, at the behest of U.S. pharmaceutical firms, kept the pressure on and threatened trade sanctions against both Argentina and Brazil for pharmaceutical patents under Special 301.20 Under Special 301 of the 1988 Omnibus Trade and Competitiveness Act, foreign violations of U.S.-held intellectual property were actionable.21 In October 1988 the U.S. government imposed 100 percent tariffs on $39 million worth of Brazilian imports.22 As L. Peter Farkas points out, numerous observers ‘suggest that Special 301 played a ‘pivotal role’ in swaying developing countries to agree to the more global agreement’.23 17 Henry Farrell and Abraham Newman, ‘Domestic Institutions Beyond the Nation-State: Charting the New Interdependence Approach’ (2014) 66 World Politics 331, 332. 18 Matthews (n 12) 23. 19 The Intellectual Property Committee, Keidanren and UNICE, Basic Framework of GATT Provisions on Intellectual Property: Statement of Views of the European, Japanese and United States Business Communities (1988). 20 Sell, Power and Ideas: North-South Politics of Intellectual Property and Antitrust (n 9) 190–2. 21 Omnibus Trade and Competitiveness Act of 1988 19 US Code 2901. 22 R. Weissman, ‘A Long Strange TRIPs: The Pharmaceutical Industry Drive to Harmonize Global Intellectual Property Rules, and the Remaining WTO Legal Alternatives Available to Third World Countries’ (1996) 17 University of Pennsylvania Journal of International Economic Law 1069, 1078. 23 L. Peter Farkas, ‘Trade-Related Aspects of Intellectual Property: What Problems with Transition Rules, What Changes to U.S. Law, How Had Congress Salvaged 337?’ in Terence P. Stewart (ed), The World Trade Organization: the

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By 1989 developing countries abandoned their opposition in response to this bilateral pressure and in exchange for other concessions. The industrialized countries promised expanded market access for textiles and agricultural products as a quid pro quo for developing countries’ assent to having intellectual property included in the trade context. Advocates for a multilateral intellectual property agreement prevailed, and the Agreement on Trade-Related Intellectual Property Rights (TRIPS) became public international law in 1994. TRIPS reflected the wishes of the transnational business coalition and many of its provisions reflected the private sector trilateral (United States, Europe and Japan) document.24 For the first time members of the General Agreement on Trade and Tariffs (GATT) were obligated to pass intellectual property laws that guaranteed protection for a wide range of goods and services, including pharmaceutical products. The Uruguay Round established a new trade institution, the World Trade Organization (WTO). WTO instituted a Dispute Settlement Mechanism to enforce the trade agreements. TRIPS is formal public law, legally binding and fully enforceable. Now intellectual property protection is firmly inscribed in the trade regime. A member state can complain about another member state’s behavior to the WTO. If the WTO finds that a state is violating terms of the treaty, it can authorize the complainant to issue economic sanctions equal to the amount of damage caused by the infringing behavior. Yet while many countries questioned the legitimacy of the practices that U.S. domestic law authorized, these practices became legitimated through incorporation into the multilateral trading system. In this sense, substantial features of U.S. domestic law achieved institutional legitimacy.25 Governing intellectual property policy through a multilateral rules-based system seemed to be preferable to the unilateral bullying that many countries had experienced under Special 301. While the rules reflect the wishes of the powerful, they also can mitigate asymmetrical power. For example Brazil and China have won significant victories over the United States in the WTO, the former on cotton subsidies and the latter on copyright enforcement. In this rulemaking stage, IP rights holders deployed a combination of material power, framing and strategic action to achieve their desired outcomes. Multilateral Framework for the 21st Century and U.S. Implementing Legislation (American Bar Association 1996) 474. 24 The Intellectual Property Committee, Keidanren and UNICE (n 19). 25 Cheng (n 2) 138.

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TRIPS may have marked the end of the first stage of rulemaking, but it also triggered another round of contentious politics. To the extent that TRIPS incorporated many provisions that reflected US domestic law, including the imposition of trade sanctions in cases of violation, it is an example of the diffusion of an approach shaped by asymmetrical power that favors IP rights holders’ preferences.26 It mandates the principles of national treatment and establishes requirements that are a minimum floor for rights protection.27 Many substantive provisions incorporate the U.S. approach to intellectual property protection. Among other obligations, all member states must offer a 20-year patent term and extend patent protection to pharmaceutical products. This diffusion process raises questions of appropriateness, and whether or not one-size-fits-all. Scholars and policymakers debate the extent to which TRIPS is a global uniform code with a rigid set of requirements, or a flexible and dynamic instrument offering policymakers plenty of autonomy to craft national intellectual property that fits their stage of development and domestic priorities.28 The French philosopher Charles de Montesquieu questioned the transferability of national law. In his 1748 treatise, The Spirit of the Laws, he warned that, ‘laws should be so appropriate to the people for whom they are made that it is very unlikely that the laws of one nation can suit another’.29 Waller suggests that, ‘the passage of identical laws in different cultures may result in one law being socially useful and the other disastrous and cruel’.30 The ‘disastrous cruelty’ of TRIPS soon became apparent as its undermining of other social goals proceeded apace.

26

Helen Milner, ‘Introduction: The Global Economy, FDI, and the Regime for Investment’ (2014) 66 World Politics 1, 8. 27 Graeme B. Dinwoodie, ‘The Role of National Courts: The Architecture of the International Intellectual Property System’ (2002) 77 Chicago-Kent Law Review 993, 999. 28 Graeme B. Dinwoodie and Rochelle C. Dreyfuss, ‘The WTO, WIPO, ACTA, and More: Fragmentation and Integration’ in Graeme B. Dinwoodie and Rochelle C. Dreyfuss (eds), A Neofederalist Vision of TRIPS: Resilience of the International Intellectual Property Regime (Oxford University Press 2012) 143. 29 Quoted in Charles de Montesquieu and others (eds), Montesquieu: The Spirit of the Laws (Cambridge University Press 1989) pt 1 bk 1 ch 3 (as cited in Spencer Weber Waller, ‘Neo-Realism and the International Harmonization of Law: Lessons from Antitrust’ (1994) 42 Kansas Law Review 557, 562). 30 Waller (n 29) 563.

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3. FRAME 3: INTELLECTUAL PROPERTY AS A PUBLIC HEALTH ISSUE Once countries adopted TRIPS, they embarked on the stage of interpretation. Fierce contestation and battles over the legitimacy of stringent IP obligations animated post-TRIPS politics. The legal obligation under TRIPS is relatively straightforward: it is formally hard law. However, battles over legitimacy and meaning erupted in the throes of the HIV/AIDS pandemic of the late 1990s and early 2000s. These battles embodied divergent understandings of TRIPS. The stage of interpretation of international law includes legal obligation, legitimacy and meaning.31 TRIPS’ advocates saw the agreement as a floor – a minimum baseline for protection. TRIPS sceptics, primarily developing countries, and public health non-governmental organizations (NGOs) saw it as a ceiling – the highest possible standards of protection that they could tolerate. As a result, TRIPS advocates never stopped pushing for higher standards through bilateral and regional trade negotiations with weaker partners that were vulnerable to U.S. trade pressure.32 Despite the TRIPS victory, the USTR has aggressively pursued deals requiring much higher standards of protection and fewer implementation flexibilities than those incorporated into TRIPS. The United States continues to press for specific measures that go beyond TRIPS requirements through: diplomatic pressure; economic coercion; and bilateral, regional and plurilateral treaty making. These include: patent term extensions; new data exclusivity requirements; limits on compulsory licensing; protection of second-use patents; limits on excluding life forms from patentability; restrictions on parallel imports; and patent linkage.33 All of these measures constrain countries’ abilities to address their public health needs but protect and extend the profitability of global pharmaceutical firms.

31

Sandholtz and Whytock (n 1) 3. Katrina Moberg, ‘Private Industry’s Impact on U.S. Trade Law and International Intellectual Property Law: A Study of Post-TRIPS U.S. Bilateral Agreements and the Capture of the USTR’ (2014) 96 Journal of the Patent and Trademark Office Society 228; Susan K. Sell, ‘TRIPS Was Never Enough: Vertical Forum Shifting, FTAs, ACTA, and TPP’ (2011) 18 Journal of Intellectual Property 447. 33 Moberg (n 32) 237. 32

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In 1997 South Africa passed a new medicines act that sought to undo medical apartheid and increase the availability of essential medicines.34 U.S.-based pharmaceutical firms objected to the law, the South African Medicines and Related Substances Control Amendment Act No 90, even though it was consistent with South Africa’s obligations under TRIPS. The law would introduce price competition and reduce the revenues of the U.S.-based firms. U.S.-based pharmaceutical firms sued Nelson Mandela’s government over this medicines act. At the time South Africa was in the grips of a devastating HIV/AIDS crisis: millions of its citizens were HIV positive. The civil society South African Treatment Access Campaign pressed for access to antiretroviral treatment for the disease.35 President Clinton and Vice-President Gore pressured Mandela’s government to repeal the act at the behest of U.S.-based pharmaceutical firms. The U.S. government withheld trade benefits and threatened trade sanctions.36 This bullying of the widely revered Mandela who was trying to address a devastating public health crisis backfired. The firms dropped the lawsuit in April 2001. USTR also bullied Thailand as it struggled to cope with the HIV/AIDS crisis of the late 1990s and early 2000s. The Thai government issued TRIPS-compliant compulsory licenses to produce generic versions of HIV/AIDS drugs so that its population would have access to them. The Thai government backed down under U.S. pressure. In 1997 Brazil passed a law guaranteeing antiretroviral treatment free to all of its affected citizens.37 In 1998 the government research and manufacturing laboratory Far-Manguinhos began producing generic versions of the drugs: it purchased raw materials from India and South Korea.38 In 2001 the United States brought a case against Brazil in the WTO over its law requiring patentees to work the invention in Brazil. If patentees refused to produce the good in the country then Brazil could threaten them with compulsory licensing or import generic versions of the drugs. This 34 Patrick Bond, ‘Globalization, Pharmaceutical Pricing, and South African Health Policy: Managing Confrontation with US Firms and Politicians’ (1999) 29 International Journal of Health Services 765. 35 Dylan Mohan Gray, Fire in the Blood (2013), accessed 15 September 2016 at http://fireintheblood.com/. 36 Ellen ‘t Hoen, ‘Public Health and International Law: TRIPS, Pharmaceutical Patents, and Access to Essential Medicines: A Long Way from Seattle to Doha’ (2002) 3 Chicago Journal of International Law 27, 30. 37 Tina Rosenberg, ‘Look at Brazil’ The New York Times (28 January 2001), accessed 15 September 2016 at www.nytimes.com/2001/01/28/magazine/look-atbrazil.html. 38 ibid.

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credible threat led pharmaceutical firms to negotiate lower prices to avoid government seizure of their patents. NGOs protested this assault on Brazil’s successful AIDS treatment model and the United States withdrew the case just four months after filing it.39 Here the effect of the law on social outcomes ignited the debate over the normative legitimacy of TRIPS. The access to essential medicines campaign gained significant traction as the effects of TRIPS on public health became apparent. Unnecessary death seemed to be a very high price to pay for protecting intellectual property. During the Uruguay Round, when TRIPS was negotiated, no one was thinking about public health. The impact of TRIPS on drug prices became sharply apparent during the HIV/AIDS crisis of the late 1990s and early 2000s. At that time patented versions of the drugs cost about $10,000 for a year’s treatment. Working with NGOs such as Doctors Without Borders, Health Action International and the Consumer Project on Technology (now Knowledge Ecology International) the Indian generics firm Cipla, Ltd. produced HIV/AIDS drugs that sold for $365 per year, one dollar per day. India built a robust generic drug industry by refusing to patent drugs beginning with its 1970 Patent Act. It offered patents for processes for making drugs, but successfully reverse-engineered alternative processes for making the drugs. Today India makes one-fifth of the world’s generics and has become the ‘dispensary for the poor of the world’.40 In 2001 the United States was eager to get a new round of trade negotiations underway. The Doha Round that began in November 2001 was labelled as a ‘development round’ in which developing countries’ concerns were supposed to be addressed. Developing countries refused to negotiate any new rules unless the developed countries agreed to a declaration on public health to clarify their rights to implement flexibilities in TRIPS to protect public health. They wanted to end the U.S. bullying over access to medicines. The member states adopted the Doha Declaration on TRIPS and Public Health which reflected their concerns.41 It stated that nothing in TRIPS should prevent governments from undertaking measures to protect public health. Member states further amended TRIPS in 2003 to permit countries without domestic generic 39

Cheng (n 2) 134. Padmanabha Ramanujam and Yugank Goyal, ‘One View of Compulsory Licensing: Comparative Perspectives from India and Canada’ (2014) 18 Marquette Intellectual Property Law Review 369, 392. 41 World Trade Organization, ‘Declaration on the TRIPs Agreement and Public Health’ (2001), accessed 15 September 2016 at https://www.wto.org/ english/thewto_e/minist_e/min01_e/mindecl_trips_e.htm. 40

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manufacturing capacity to import generic drugs produced under compulsory licenses. However, this amendment has only been used once: it is unwieldy and complicated.42 As for the Doha Round, it remains moribund at the time of this writing. None of this has reduced the U.S.-based IP-dependent firms’ and USTR’s relentless quest to achieve ever-higher intellectual property protections and to shrink flexibilities outside of the WTO. Realizing that the public health focus has raised serious questions about the merits of intellectual property protection and its social costs, the USTR and the firms that it represents understood that they would be unlikely to succeed in obtaining stronger protections in the WTO. Thus they shifted their efforts to the World Intellectual Property Organization (WIPO) to press for higher standards by resuscitating the Substantive Patent Law Harmonization negotiations in late 2000. However, developing countries stated that they would refuse to negotiate that treaty unless WIPO first addressed development issues. Those member states concerned about access to medicines and flexibilities in intellectual property law to promote development pushed back against the USTR agenda. They wanted to align TRIPS obligations with the United Nations Millennium Development Goals and the Doha Declaration.43 Argentina, Egypt, Brazil and India were assertive on this point. In 2004 leading developing countries proposed a development agenda that WIPO member states formally adopted in 2007.44 This focus on development, with its more sceptical attitude toward intellectual property rights, led the USTR and intellectual property advocates into less public venues in the quest for higher standards. The non-transparency that characterizes contemporary so-called ‘trade negotiations’ can be traced to the USTR. As Margot Kaminski has pointed out, the USTR is unlike any other federal agency.45 It is the least accountable of them all. The advisory committee structure assures that only one side in intellectual property debates has access to policymakers 42

Ramanujam and Goyal (n 40) 400–1. Dinwoodie and Dreyfuss (n 28) 154. 44 World Intellectual Property Organization, ‘Proposal by Argentina and Brazil for the Establishment of a Development Agenda for WIPO’ (2004) WO/GA/31/11; World Intellectual Property Organization, ‘Provisional Committee on Proposals Related to a WIPO Development Agenda (PCDA), Fourth Session (11–15 June 2007)’ (2007), accessed 15 September 2016 at http:// www.wipo.int/ip-development/en/agenda/pcda/pcda07_session4.html. 45 Margot Kaminski, ‘The U.S. Trade Representative’s (USTR’s) Democracy Problem’ (2012) 9 Suffolk Transnational Law Review 519, 519–51. 43

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in USTR. Global firms have a privileged position in USTR and they relentlessly press for more rights. They dismiss any attendant obligations to the public at large and efforts to strike a balance between protection and dissemination. The USTR is an agency that cloaks itself in secrecy and is notorious for the revolving door to and from lucrative intellectual property lobbying jobs. This leads to unbalanced policy at the expense of the public interest. Consumers, Internet users, public health experts, privacy advocates and librarians (to name a few) are denied opportunities for meaningful input and influence. Asymmetrical access leads to lopsided policy: a flawed process is bound to result in flawed outcomes that cost the public a great deal. There is a profound democratic deficit in trade policymaking. Citizens and Congress have been shut out. With increased public awareness of the stakes involved in intellectual property policies the United States has encountered more resistance to its demands in this regulatory arena. The HIV/AIDS pandemic was the first big public jolt in which millions of people understood the link between patents and high drug prices. The U.S.-based firms, and the USTR that faithfully carries their water abroad, understand that they would not be able to achieve their ambitious goals in open, multilateral forums. The focus on public health and patents chased them out of the WTO, and the so-called Development Agenda chased them out of the World Intellectual Property Organization. WTO and WIPO no longer are hospitable forums for US firms to achieve their TRIPS-plus agenda. Thus they shift to plurilateral, regional and bilateral forums either with ‘like-minded’ parties or with weak states that are unable to resist economic coercion and promises of U.S. investment.

4. FORUM SHIFTING 1: PLURILATERAL NEGOTIATIONS AND ACTA Stymied at the multilateral level, rights holders and their supportive governments engaged in vertical forum shifting, including plurilateral, regional and bilateral negotiations to achieve expanded legal rights for themselves and reduced flexibilities for others. They have doubled down on a strategic approach geared to leverage asymmetrical power through vertical forum shifting. According to Katrina Moberg, ‘the U.S. has entered into forty-one bilateral agreements since TRIPS became effective in 1995’.46 Many of these feature tougher intellectual property 46

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requirements. This section focuses on the Anti-Counterfeiting Trade Agreement (ACTA) that took aim at both patented medicines and copyrighted digital media. After describing ACTA, the section will examine an important feedback loop between this effort to make international law and challenges to U.S. domestic law. This example demonstrates the interaction between international and domestic lawmaking in a striking way. In this instance protests over domestic laws to regulate the Internet undermined an important U.S. foreign economic policy goal. In 2007, just two weeks after WIPO members adopted the Development Agenda the United States, the European Union and Japan announced that they would negotiate the legally binding ACTA. These countries sought stronger enforcement of their intellectual property and hoped to model the treaty on the United States’ and EU’s bilateral trade and investment agreements that favored intellectual property owners far more than TRIPS did. In bilateral negotiations powerful states can exploit more vulnerable parties. The U.S.-Korea Free Trade Agreement demonstrates this power asymmetry: it required 169 changes in Korean law and none in U.S. law.47 ACTA negotiating parties also included Canada, Australia, Singapore, Morocco, New Zealand, Jordan, Australia, Switzerland and the United Arab Emirates. The developing countries involved were already yoked to higher standards through U.S. Free Trade Agreements (FTAs). The USTR made it very clear that it saw ACTA as a stepping-stone to a multilateral IP treaty with higher standards than TRIPS. Then-USTR Stan McCoy stated that USTR hopes that ‘other countries will join over time, reflecting the growing consensus on the need for strong IPR enforcement’ and it ‘looks forward to partnering with developing countries through ACTA, and cooperating with ACTA partners to provide technical assistance to developing countries’.48 ACTA had little to do with trade and everything to do with intellectual property protection. ACTA would ‘require signatories to give effects to instruments that are not incorporated into TRIPS and which impose obligations not otherwise required by the WTO’.49 ACTA aimed to address copyright piracy in the digital age. Post-TRIPS technologies, advances in digital communication such as peer-to-peer file sharing and user-generated content all posed challenges for both law and content 47

Dinwoodie and Dreyfuss (n 28) 167. As quoted in Emily Ayoob, ‘The Anti-Counterfeiting Trade Agreement’ (2010) 28 Cardozo Arts and Entertainment Law Journal 175, 179. 49 Dinwoodie and Dreyfuss (n 28) 148. 48

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producers’ business models. Hollywood movie studios and music companies sought to block U.S. users from foreign websites, such as Pirate Bay, that provided digital content in violation of U.S. copyright law. They also wanted Internet Service Providers (ISPs) to be liable for users posting infringing content on websites. They wanted ISPs to police the web on content owners’ behalf. On the medicines side under ACTA, a rights holder could require an ACTA signatory to seize goods in-transit that are not under patent in the sending and receiving states.50 The in-transit seizures of Indian generic drugs destined for Africa and Latin America in European ports and airports raised concerns about disrupted supply lines and chilling trade in generic drugs. India sought a WTO consultation against the EU over the seizures claiming that they were violating TRIPS. India withdrew the request in 2011 to focus on the EU-India FTA negotiations. ACTA also included very high civil and criminal penalties for copyright infringement, even in cases in which there would be no financial gain. There were no fair use exceptions to copyright, for instance for educational purposes or satire. ACTA was also to have its own Secretariat, and it was unclear how it would operate in relation to WTO. An ‘ACTA Committee’ made up of unelected members from signatory countries would unilaterally enforce ACTA.51 Developing countries requested that the WTO’s TRIPS Council examine the implications of ACTA for the trade regime. ACTA negotiators sought to shield rulemaking from public scrutiny. Having concluded that the relatively open deliberations in multilateral fora would stymie their ability to make their preferred rules, they sought to shield ACTA from public politics. The shroud of secrecy would be a buffer against broader social and public policy considerations. ACTA negotiators operated in deep secrecy. Rights holders had access to the texts and helped to draft them. Civil society, consumers, public health experts, copyright users and privacy experts were all shut out of the process. The public only learned about what was in the treaty when chapters were leaked on the Internet. The European Parliament and some members of the U.S. Congress protested the secrecy. Many civil society 50 Rochelle Dreyfuss and Susy Frankel, ‘From Inventive to Commodity Asset: How International Law Is Reconceptualizing Intellectual Property’ (New York University Public Law and Legal Theory Working Papers Paper 478 2014) 11, accessed 15 September 2016 at http://lsr.nellco.org/nyu_plltwp/478. 51 Ruth Okediji, ‘Legal Innovation in International Intellectual Property Relations: Revisiting Twenty-One Years of the TRIPS Agreement’ (2014) 36 University of Pennsylvania Journal of International Law 191, 256.

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actors suspected that USTR insisted on secrecy because it knew that the public would be unhappy with the terms of the deal.52 Two public interest groups, Public Knowledge and the Electronic Frontier Foundation, unsuccessfully sued USTR for access to negotiation documents under the Freedom of Information Act in 2009 but the Obama administration classified ACTA as a ‘national security issue’. The groups dropped the lawsuit. In October 2011 Australia, Canada, Japan, Morocco, New Zealand, South Korea and the US signed ACTA. In early 2012 Mexico and the EU also signed on.

5. FRAME 4: INTELLECTUAL PROPERTY AS A FREE SPEECH AND PRIVACY ISSUE Developments in the U.S. legislature took an interesting turn during the ACTA process. In the autumn of 2011 Congress was considering two bills to address online copyright infringement: the Stop Online Piracy Act (SOPA), the Senate’s version of the bill, and the House of Representatives’ Protect Intellectual Property Act (PIPA). The bills proposed to block U.S. citizens from accessing ‘pirate’ foreign websites, and would block services such as PayPal from processing payments to such websites. Unlike the highly secretive ACTA process, SOPA deliberations were transparent and the public had an opportunity to weigh in on proposed provisions. Internet activists were alarmed by provisions in the bill that would allow the Justice Department to block foreign websites with no opportunity for site owners to respond or appeal: censorship and freedom of speech were at stake.53 The big difference between SOPA/PIPA and ACTA was that the domestic process was open, public and democratic.54 Internet users, consumer groups, websites and some members of Congress expressed concern over SOPA. The late Internet activist and Reddit co-founder Aaron Swartz helped to mobilize opposition to the bills. A combination of concerted on-line and off-line mobilization ultimately proved to be

52 David S. Levine, ‘Bring in the Nerds: Secrecy, National Security and the Creation of Intellectual Property Law’ (2012) 30 Cardozo Arts and Entertainment Law Journal 105. 53 Okediji (n 51) 254. 54 Levine (n 52).

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effective in killing the bills.55 Technology-savvy US politicians like Jared Polis (R-UT), Zoe Lofgren (D-CA), and Ron Wyden (D-OR) complained about the proposed bill’s effects on safe harbors, limited liability for ISPs, and the dangers that the provisions posed to the stability of the Internet itself. On-line mobilization focused on First Amendment rights to free speech and users’ concerns over censorship. The bills were on the verge of being passed. However in a bid to show users what was at stake in the bills, between 10 and 17 January 2012 a number of popular websites with millions of users, including Wikipedia, decided to go dark. Wikipedia posted a message on its dark site: ‘Imagine a world without knowledge.’ This was a very effective counter movement to the content owners’ lobby. As a result of the massive popular protests, by late January the bills were dead in the United States. In important respects, SOPA and PIPA were aiming for many of the same objectives as ACTA. Watching the mobilization against SOPA and PIPA inspired Europeans to mobilize against ACTA. The European Union signed on to ACTA early in 2012, but it had not yet ratified it. The death of SOPA/PIPA sparked ACTA protests throughout Europe. On 11 February tens of thousands of people took to the streets in protest in multiple European cities. Poland, Germany, Latvia, the Czech Republic, Slovakia and Lithuania all rejected ACTA. In July 2012 the European Parliament voted 478–39 against ACTA. Therefore, 22 of the 27 member states that signed on to ACTA will not be able to ratify it: the EU has decisively rejected it. The SOPA/PIPA/ACTA story demonstrates how national and transnational political mobilization and grassroots activism can dilute private power domestically and public power internationally to boost global welfare. The domestic showdown in the United States over proposed domestic law spread to undermine the U.S. foreign economic policy of expanding IP holders’ rights globally. Transparency and public deliberation made this possible. ACTA needs six states to ratify it before it can take effect. The EU vote has put its future in doubt, although the U.S. vows to keep pushing signatories to ratify it.56 At the time of this writing only Japan has ratified ACTA. The ACTA debacle demonstrates how political protest can undermine the rulemaking process.

55 Susan K. Sell, ‘Revenge of the ‘Nerds’: Collective Action Against Intellectual Property Maximalism in the Global Information Age’ (2013) 15 International Studies Review 67. 56 Okediji (n 51) 257.

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6. FORUM SHIFTING 2: THE TRANS-PACIFIC PARTNERSHIP Undaunted by the setbacks, rights holders, USTR, Europe and Japan have doubled down on their efforts to secure stronger and expanded intellectual property rights. In another major strategic vertical forum shift and effort at TRIPS-Plus rulemaking, the United States turned to the TransPacific Partnership (TPP) negotiations. The TPP, if adopted, would cover 40 percent of the global economy. The Obama administration has made the TPP a priority in its ‘pivot to Asia’. The United States seeks to keep a large footprint in Asia as a counterweight to growing Chinese power in the region. Most importantly the United States knows that the world is becoming more multipolar with the rise of China, India, Brazil and other emerging middle-income countries. The United States seeks to lock in its preferred intellectual property visions before it is too late for it to call the shots. It is no surprise that these countries, that the United States is most concerned about, are conspicuously absent from the TPP negotiations. These countries are the very targets of all of this activity. The United States hopes that if it can get enough countries to enroll in these stringent agreements that later, countries like China and India will have no alternative but to jump on board. Indeed, President Barack Obama stated that, ‘if we can get a trade deal with all the other countries in Asia that says you’ve got to protect people’s intellectual property that will help us in our negotiations with China’.57 While it covers some trade issues, much of it is about domestic regulatory harmonization and includes the rights of private investors to sue governments under the controversial Investor State Dispute Settlement (ISDS) provisions. Like ACTA, TPP is being negotiated in utter secrecy with the USTR’s 600 or so ‘cleared advisors’ having access to the negotiating texts. Leaked drafts have shown that U.S. negotiators are pushing for intellectual property standards that are even more restrictive than TRIPS and more extreme than those included in ACTA.58 As Okediji suggests, the TPP’s ‘obvious retreat from policy flexibilities available in TRIPS that allow countries to experiment with

57 White House: Office of the Press Secretary, ‘Press Conference by the President’, accessed 15 September 2016 at http://www.whitehouse.gov/the-pressoffice/2013/10/08/press-conference-president. 58 Okediji (n 51) 258.

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social welfare policies, including addressing the supply of public goods, has been very controversial’.59 The TPP began in 2002 when Chile, New Zealand and Singapore launched the negotiations at the Asia Pacific Economic Cooperation Forum leader’s summit. Brunei attended as an observer and joined in so-called ‘Pacific 4’ agreement in 2005.60 The United States joined in the negotiations in 2008. In March 2010 the TPP negotiations included the original P-4 countries: the United States, Australia, Peru and Vietnam, and since then Malaysia, Canada, Mexico and Japan have participated.61 In the penultimate leaked intellectual property chapter, dated 20 January 2015, the United States’ proposed provisions for pharmaceuticals were the strongest yet. The pharmaceutical industry has been deeply involved in the process and leaked chapters have shown the USTR catering to PhRMA’s every whim.62 They would raise the prices of medicines and are designed to chill generic competition. TPP will raise the costs of medical care. For example, USTR proposed a 12-year period of data exclusivity for biologic drugs. That will prevent regulatory agencies from registering a generic version for 12 years, delaying costeffective generic competition. Obama’s 2016 budget calls for reducing this period from 12 to 7 years, claiming a saving of over $4 billion in the coming decade.63 Obama’s own trade negotiators pushed for the longer period. This clearly undermines Obama’s professed commitment to affordable care. This contradiction points to the tensions that arise from multi-scalar governance and the opportunistic activation of institutions to circumvent more open and democratic processes at home. Ultimately when negotiators signed the TPP text in October 2015, the data exclusivity provisions were shaved back to a complicated formula of 5 + 3 years. U.S. Senators and Representatives sympathetic to PhRMA have suggested that they 59

ibid 259. Meredith Kolsky Lewis, ‘Expanding the P-4 Trade Agreement into a Broader Trans-Pacific Partnership: Implications, Risks, and Opportunities’ (2009) 4 Asian Journal of the World Trade Organization and International Health and Policy 401, 403–4. 61 Peter Yu, ‘TPP and Trans-Pacific Perplexities’ (2014) 37 Fordham International Law Journal 1129, 1130. 62 Michael Grunwald, ‘Leaked: What’s in Obama’s Trade Deal: Is the White House Going to Bat for Big Pharma Worldwide?’ Politico (1 July 2015), accessed 15 September 2016 at http://www.politico.com/agenda/story/2015/06/ tpp-deal-leaked-pharma-000126. 63 Amy Kapczynski, ‘Perspective: The Trans-Pacific Partnership – Is It Bad for Your Health?’ (2015) 373 The New England Journal of Medicine 201. 60

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might withhold support for the treaty when it comes to a vote in Congress unless it is amended to guarantee the 12-year data exclusivity for biologic drugs. On 10 June 2015 Wikileaks released a TPP Annex on ‘Transparency and Procedural Fairness for Pharmaceutical Products and Medical Devices’.64 PhRMA sought transparency in public health care decisionmaking over drugs and pricing, yet refused to reciprocate by offering transparency in its own costs and pricing policies. Some believe that the Annex is aimed at New Zealand’s Pharmaceutical Management Agency (Pharmac) that keeps drug costs low and promotes access to medicines for low-income citizens. Public health advocates see New Zealand’s system as a model for cost containment and access and PhRMA does not want other countries to emulate it. The Annex would allow PhRMA to participate in public health deliberations over the choice and reimbursement rates for covered drugs. PhRMA directly could review and appeal Medicare and Medicaid Services decisions over choice and pricing. It would also allow direct-to-consumer advertising for drugs and medical devices.

7. FRAME 5: PUSHING FOR RULE CHANGE – INTELLECTUAL PROPERTY AS AN INVESTMENT ISSUE The United States is pressing for Investor-State-Dispute-Settlement (ISDS) provisions in the TPP negotiations. These provisions would permit investors directly to challenge states’ policies and practices. As economic integration has proceeded apace trade negotiations have become less about tariffs and more about domestic regulation. This integration now reaches deeply into the domestic regulatory arena and threatens to disrupt carefully and democratically developed domestic regulations. In March 2015 WikiLeaks released a draft of the TPP investment chapter that includes ISDS. Under ISDS private firms have the right to sue governments. They can seek compensatory damages directly before an international tribunal. As Beth Simmons points out, ‘this private right to sue a government for damages and to choose the forum in which to do so constitutes the most revolutionary aspect of 64

‘Transparency and Procedural Fairness for Pharmaceutical Products and Medical Devices’ WikiLeaks (10 June 2015), accessed 15 September 2016 at http://wikileaks.org/tpp/healthcare/.

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international law relating to foreign investment in the past halfcentury’.65 ISDS provisions originally were designed to protect investors from arbitrary decisions or expropriations of their investment in countries that did not have well-developed legal systems. In the post-colonial heyday of the 1950s and 1960s some newly independent countries nationalized foreign privately-owned natural resource extraction facilities. Investors sought protection from this type of activity, or compensation in the event of expropriation.66 However, what counts as an investment is now being stretched to include intellectual property. Dreyfuss and Frankel refer to this as a change from IP as an incentive to an IP as a commodity to IP as an investment asset.67 They track this process as evolving from TRIPS to Free Trade Agreements and Bilateral Investment Treaties. For example, the Korean-US Free Trade Agreement specifically lists intellectual property as an ‘investment’. According to Dreyfuss and Frankel: As described in investment law, intellectual property is about ‘the characteristics of an investment [such as] the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk.’ To put this another way, conventional intellectual property law had benchmarks: to be actionable, infringement must impair the power to identify source (in trademark) or the incentive to innovate (in patent and copyright). There is, however, no equivalent IP-related benchmark for determining what constitutes an expropriation.68

The implications of re-conceptualizing IP as an investment asset are profound. Three ongoing ISDS cases involving IP and public health suggest what is at stake. Recently the U.S.-based firm Eli Lilly accused the Canadian government of indirect expropriation of Eli Lilly’s patented drug because the Canadian government invalidated the patent. Eli Lilly sued the Canadian government twice and both times the Supreme Court of Canada upheld the Canadian action as consistent with Canadian law. Now Eli Lilly is suing under the ISDS provision in the North American Free Trade Agreement to have its case heard by international arbitrators, bypassing the Canadian legal system. Lawyers trained in commercial 65 Beth Simmons, ‘Bargaining over BITs, Arbitrating Awards: The Regime for the Protection and Promotion of International Investment’ (2014) 66 World Politics 12, 17. 66 Charles Lipson, Standing Guard: Protecting Foreign Capital in the Nineteenth and Twentieth Centuries (University of California Press 1985). 67 Dreyfuss and Frankel (n 50) 15. 68 ibid 16.

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private investment law (untrained in either IP or public health) could hear the case. PhRMA companies could challenge domestic health regulations under ISDS if they can claim that those policies hindered investment or reduced their expected return on investment. If Eli Lilly prevails, the government of Canada would have no right to appeal and the Canadian taxpayers would be forced to compensate Eli Lily for $500 million. Under ISDS provisions Phillip Morris International sued the governments of Uruguay and Australia for plain packaging of cigarettes. Both countries mandate cigarette package labelling that seeks to discourage smoking. There, cigarette packages feature warnings, small fonts for brand names, and graphic pictures of the medical horrors that smoking can cause. Phillip Morris claims that it is not getting the expected benefits of its investments in its trademarks due to the public health regulations designed to reduce the appeal of smoking. In the context of the TPP negotiations both Canadian and Australian negotiators raised the possibility of exempting public health from ISDS. Given that corporations are currently targeting both countries for compensation over public health regulations, it is not surprising that they would push back. Indeed, in the October 2015 text of TPP opponents of ISDS, led by Australia, were able to obtain a carve-out for tobacco products. The U.S. Chamber of Commerce is protesting this carve-out, and representatives of tobacco states in Congress are vowing to vote against TPP when it comes up for a vote. ISDS provisions remain in the concluded TPP, so all member states will be vulnerable to lawsuits in which private foreign investors can sue taxpayers for public regulations. Three lawyers decide the cases in secret and there is no right to appeal. This process is a direct threat to both democracy and sovereignty. Consumers, environmentalists and public health advocates have no similar right to sue. There is a great deal at stake in these developments as they could give firms carte blanche to sue governments over laws that firms happen not to like. It could lead to an overlay of policy requirements above domestic law that could sharply constrain national policy discretion. It is a means to push for regulatory harmonization without going through a democratic process of debate and deliberation. This constitutes yet another effort to ‘ring fence’ law and rule change from politics. In recent years there has been both an explosion of litigation under these provisions, and a growing backlash against ISDS. As Simmons notes, ‘private investing actors have special privileges in international law compared to any other private actors, and they are increasingly exercising these privileges against developing and middle income countries, many

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of whom may lack the legal capacity and experience to counter the claims effectively’.69 Indeed, some might not have the deep pockets required to defend themselves against this type of litigation; ex-New York Mayor Michael Bloomberg helped to finance Uruguay’s defence against Phillip Morris. Between the 1980s and 1990s, firm-state arbitration cases registered with the International Center for the Settlement of Investment Disputes (ICSID) grew by 153 percent, and between the 1990s and 2000s by a remarkable 449 percent.70 Simmons points out that ‘private actors’ access to enforceable compensatory damages, typically without the need to first exhaust domestic remedies, is unusual in public international law’.71 The track record of investor-state arbitration points to an overwhelming bias in favor of investors over states, a tendency of lawyers to interpret ambiguous terms expansively in favor of the investor, and for the arbitrators to have incentives to favor the private investor.72 With the expansion of intellectual property protection such provisions stand to disrupt regulations governing everything from public health, energy, finance, education, privacy and free expression. Under these provisions investors can attack domestic social bargains and, if successful, override legitimate sovereign regulatory discretion. According to Dreyfuss and Frankel, ‘the powers of private parties in these disputes, the high damage awards, and the potential disconnect between the interests of the state and its investors (including for IP, the interests of states in utilizing flexibilities) have led participants to realize that these arrangements can backfire’.73 States are not firms. Firms have it easy, especially in the U.S. system of shareholder capitalism. They only have to worry about one thing – shareholder value. The bottom line is to always earn a profit. Policymakers face a much more complicated array of issues and priorities. They are stewards of their constituencies and need to worry about health, safety, food, privacy, labor and the environment (just to name a few concerns). They engage in regulation in which they must balance conflicting priorities to satisfy diverse constituencies. States need to square the circle of global economic engagement with the domestic price 69

Simmons (n 65) 18–19. ibid 19. 71 ibid 19. 72 Quoted in Gus Van Harten, ‘Arbitrator Behavior in Asymmetrical Adjudication: An Empirical Study of Investment Treaty Arbitration’ (2012) 50 Osgoode Hall Law Journal 211 (as cited in Simmons (n 65) 34). 73 Dreyfuss and Frankel (n 50) 44–5. 70

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that they have to pay. This is particularly the case in democracies in which policymakers are accountable to the public. The only way to protest an investment arbitration award is to seek to have it annulled. Yet the grounds for annulment are extremely narrow and the odds of winning an annulment are extremely long (about 8 percent): ‘there is no way to correct the poor judgment of a mixed arbitration investment tribunal’.74 However there has been a huge increase in registrations for ICSID annulment proceedings: in 2008 such requests outnumbered awards.75 Middle-income Latin American countries accounted for the lion’s share of annulment requests – Argentina alone accounted for a quarter of all such requests. With these long odds prevailing it seems clear that requesting annulment is an effort to signal one’s perception of the illegitimacy of the regime.76 Many annulment requests cover cases involving basic public needs, such as utilities, water, electricity and gas. Since 2008 many annulment seekers are ‘highly democratic countries with clear lines of accountability to their domestic publics’.77 Norway has stopped negotiating new Bilateral Investment Treaties in the face of public concern over tensions between investors’ prerogatives and the right to regulate in the public interest.78 The U.S. strategy is to get TPP passed and ratified, and then to invite other countries to sign on to the new higher standards of IP protection and investors’ rights. Yet the geopolitical shift of a stronger China and large developing countries such as India, Brazil, Indonesia, South Africa and Thailand raises the question of why would they ‘join an agreement that is filled with rules and standards that [they] had no role in shaping and that [they] cannot re-negotiate[?] Gone are the days when trade rules could be created in the developed world and then shoved down the throats of large developing countries.’79 China has not idly stood by as these negotiations unfold. Yu points out that, ‘since the mid-2000s China has negotiated bilateral agreements with Chile, Pakistan, New Zealand, Singapore, Peru, Costa Rica, Iceland, and Switzerland, including four of the TPP negotiating parties’.80 In late 2012 China, India and other members of the Association of Southeast Asian Nations (ASEAN) launched negotiations for a Regional Comprehensive 74 75 76 77 78 79 80

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Simmons (n 65) 38. ibid 38. ibid 39. ibid 40. ibid 43. Yu (n 61) 1145. ibid 1150.

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The politics of international in