To appear in6 +effre L! Dunoff and Mark '! Pollack, eds!

, International Law and International Relations: The State of the Art (forthcoming, 7857)!

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Liberal Theories of International Law

Andrew Moravcsik

Liberal theories of international relations (IR) focus on the demands of individuals and social groups, and their relative power in societ , as fundamental forces driving state polic and, ultimatel , world order! "or liberals, ever state is embedded in an interdependent domestic and transnational societ that decisivel shapes the basic purposes or interests that underlie its policies! This #bottom$up% focus of liberal theories on state&societ relations, interdependence, and preference formation has distinctive implications for understanding international law (IL)! 'ccordingl , in recent ears liberal theor has been among the most rapidl e(panding areas of positive and normative anal sis of international law! 's the world grows more and more interdependent and countries struggle to maintain cooperation amidst diverse economic interests, domestic political institutions, and ideals of legitimate public order, international law will increasingl come to depend on the answers to )uestions that liberal theories pose!
I am grateful to Chris *endall and +ustin ,imeone for e(cellent research assistance and for st listic and substantive input, and to -illiam .ur/e$-hite, +effre 0unoff, Laurence 1elfer, 2ar/ 3ollac/, 'nne$2arie ,laughter, and participants at a conference at Temple 4niversit .easle ,chool of Law for detailed comments,

The first section of this chapter (#Liberal Theories of International Relations%) elaborates the assumptions and conclusions of liberal international relations theor ! ,ection II (#-hat Can Liberal Theories Tell 4s about International Law 2a/ing9%) develops liberal insights into the substantive scope and depth of international law, its institutional form, compliance, and long$term d namic processes of evolution and change! ,ection III (#International Tribunals6 Liberal 'nal sis and Its Critics%) e(amines the specific case of international tribunals, which has been a particular focus of liberal theori:ing, and treats both conservative and constructivist criticisms of liberal theor ! ,ection I; (#Liberalism as Normative Theor %) considers the contribution of liberal theor to polic , as well as to conceptual and normative, anal ses of international law!

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I. Liberal Theories of International Relations

The central liberal )uestion about international law and politics is6 who governs9 Liberals assume that states are embedded in a transnational societ comprised of individuals, social groups, and substate officials with var ing assets, ideals and influence on state polic ! The first stage in a liberal e(planation of politics is to identif and e(plain the preferences of relevant social and substate actors as a function of a structure of underl ing social identities and interests! 'mong these social and substate actors, a universal condition is globalization, understood as transnational interdependence, material or ideational, among social actors! It creates var ing incentives for cross$border political regulation and interaction! ,tate polic can facilitate, bloc/, or channel globali:ation, thereb benefitting or harming the

interests or ideals of particular social actors! The state is a representative institution that aggregates and channels those interests according to their relative weight in societ , abilit to organi:e, and influence in political processes! In each state, political organi:ation and institutions represent a different subset of social and substate actors, whose desired forms of social, cultural, and economic interdependence define the underl ing concerns (preferences across #states of the world%) that the state has at sta/e in international issues! Representative functions of international organi:ations ma have the same effect! The e(istence of social demands concerning globali:ation, translated into state preferences, is a necessar condition to motivate an purposeful foreign polic action! ,tates ma see/ to shape and regulate interdependence! To the e(tent this creates e(ternalities, positive or negative, for polic $ma/ers in other states see/ing to reali:e the preferences of their individuals and social groups, such preferences provides the underl ing motivation for patterns of interstate conflict and cooperation! Collo)uiall , what states want shapes what the do! Liberal theor highlights three specific sources of variation in state preferences and, therefore, state behavior! <ach isolates a distinctive source of variation in the societal demands that drive state preferences regarding the regulation of globali:ation! To avoid simpl ascribing polic changes to ad hoc or une(plained preference changes, liberal theor see/s to isolate the causal mechanisms and antecedent conditions under which each functions! In each case, as the relevant

domestic and transnational social actors and conte(ts var across space, time, and issues, so does the distribution of state preferences and policies! Ideational liberal theories attribute state behavior to interdependence among social demands to reali:e particular forms of public goods provision! These demands are, in turn, based on conceptions of desirable cultural, political, and socioeconomic identit and order, which generall derive from both domestic and transnational sociali:ation processes! Common e(amples in modern world politics include conceptions of national (or civic) identit and self$determination, fundamental political ideolog (such as democratic capitalism, communism, or Islamic fundamentalism), basic views of how to regulate the econom (social welfare, public ris/, environmental )ualit ), and the balance of individual rights against collective duties! The starting point for an ideational liberal anal sis of world politics is the )uestion6 1ow does variation in ideals of desirable public goods provision shape individual and group demands for political regulation of globali:ation9 Co ercial liberal theories lin/ state behavior to material interdependence

among societal actors with particular assets or ideals! In international political econom , conventional #endogenous polic % theories of trade, finance, and environment posit actors with economic assets or ob>ectives, the value of which depends on the actors? position in domestic and global mar/ets (i!e!, patterns of globali:ation)! The starting point for a commercial liberal anal sis of world politics is the )uestion6 1ow does variation in the assets and mar/et position of economic actors shape their demands for political regulation of globali:ation9

Re!ublican liberal theories stress the role of variation in political representation! Liberals view all states (and, indirectl , international organi:ations) as mechanisms of political representation that privilege the interests of some societal actors over others in ma/ing state polic ! Instruments of representation include formal representation, constitutional structure, informal institutional d namics, appointment to government, and the organi:ational capacit of social actors! . changing the #selectorate% & the individuals and groups who influence a polic & the polic changes as well! The starting point for a republican liberal anal sis of world politics is the )uestion6 1ow does variation in the nature of domestic representation alter the selectorate, thus channeling specific social demands for the political regulation of globali:ation9 'lthough for anal tical clarit we customaril distinguish the three categories of liberal theor , the are generall more powerful when deplo ed in tandem! Interdependence often has significant implications for both collective goods provision (ideational liberalism) and the reali:ation of material interests (commercial liberalism)! 2oreover, whether underl ing preferences are ideational or material, the are generall represented b some institutionali:ed political process that s/ews representation (republican liberalism)! <ven the simplest conventional theories of the political econom of international trade, for e(ample, assume that all three strands are important6 private economic interest is balanced against collective welfare concerns, whether in the form of a budget constraint or countervailing public polic

goals, and these social pressures are transmitted to the state through representative institutions that privilege some voices over others (Arossman and 1elpman 5BB4)! It is important to be clear what liberal theor is not! Theoretical paradigms in international relations are defined b distinctive causal mechanisms that lin/ fundamental causes, such as economic, technological, cultural, social, political, and behavioral changes among states in world politics, to state behavior! 1ence the term liberal is not used here to designate theories that stress the importance of international institutionsC the importance of universal, altruistic, or utopian values, such as human rights or democrac C or the advancement of left$wing or free mar/et political parties or policies! In particular, institutionalist regime theor , pioneered b Robert *eohane and others, often termed #neo$liberal,% is distinctl different! *enneth 'bbott has written that6
<DT InstitutionalismEanal

:es the benefits that international rules,

organi:ations, procedures, and other institutions provide for states in particular situations, viewing these benefits as incentives for institutionali:ed cooperationE! FRGelativel modest actions & such as producing unbiased information, reducing the transactions costs of interactions, pooling resources, monitoring state behavior, and helping to mediate disputes & can help states achieve their goals b overcoming structural barriers to cooperation (788H6 I)! This institutionalist focus on the reduction of informational transaction costs differs from the focus of liberalism, as defined here, on variation in social preferencesJ even if the two can coe(ist, with the former being a means of achieving the latter!

The distinctiveness of liberal theories also does not stem from a uni)ue focus on #domestic politics!% True, liberal theories often accommodate and e(plain domestic distributional and political conflict better than most alternatives! Ket, it is unclear what a !urel" #domestic% theor of rational state behavior would be, liberal or otherwise! Liberal theories are international in at least three senses! "irst, in the liberal view, social and state preferences are driven b transnational material and ideational globali:ation, without which liberals believe foreign polic has no consistent purpose! ,econd, liberal theories stress the wa s in which individuals and groups ma influence polic , not >ust in domestic but in transnational politics! ,ocial actors ma engage (or be engaged b ) international legal institutions via domestic institutions, or the ma engage them directl ! The ma organi:e transnationall to pursue political ends! The liberal assumption that political institutions are conduits for political representation is primaril directed at nation$states simpl because the are the preeminent political units in the world toda C it ma also appl to subnational, transnational, or supranational institutions! Third, liberal theories (li/e realist, institutionalist, s stemic constructivist theories, and an other intentionalist account of state behavior) are strategic and thus #s stemic% in the sense that *enneth -alt: (5BLB) emplo s the term6 the e(plain collective international outcomes on the basis of the interstate distribution of the characteristics or attributes of states, in this case their preferences! The preferences of a single state alone tell us little about its probable strategic behavior with regard to interstate interaction, absent /nowledge of the preferences of other relevant states, since liberals agree that state preferences and

policies are interdependent and that the strategic games states pla matter for polic & assumptions shared b all rationalist theories! The critical )ualit of liberal theories is that the are #bottom$up% e(planations of state behavior that focus on the effect of variations in state&societ relations on state preferences in a conte(t of globali:ation and transnational interdependence! In other words, liberalism emphasi:es the distribution of one particular attribute (sociall determined state preferences about the regulation of social interdependence), rather than attributes favored b other ma>or theories (e!g!, coercive power resources, information, or nonrational standards of appropriate strategic behavior)! Indeed, other theories have traditionall defined themselves in contrast to the liberal emphasis on social preferences!

A II. What Can Liberal Theories Tell Us About International Law Making?
Liberal theories can serve as the #front$end% for multicausal s ntheses with other theories of institutions, e(plaining the substance of legal regimesC can generate their own distinctive insights into the strategic and institutional aspects of legal regimesC and can provide e(planations for the longer$term d namic evolution of international law! Let us consider each in turn!

A. Liberal !"#lanations for the $ubstantive $co#e and %e#th of International Law
Mne wa to emplo liberal theor is as the first and indispensable step in an anal sis of international law, focusing primaril on e(plaining the substantive content of

international interaction! <(plaining the substantive focus of law, a tas/ at which few IR theories e(cel, is a particular comparative advantage of liberal theor ! Realism and institutionalism see/ to e(plain the outcome of strategic interaction or bargaining over substantive matters, but the ta/e as given the basic preferences, and hence the substance, of an given interaction! Constructivists do see/ to e(plain the substantive content of international cooperation, but do so not as the result of efforts to reali:e material interests and normative ideals transmitted through representative institutions, but rather as the result of conceptions of appropriate behavior in international affairs or regulator polic divorced from the instrumental calculations of societal actors empowered b the state! "or liberals, the starting point for e(plaining wh an instrumental government would contract into binding international legal norms, and compl with them thereafter, is that it possesses a substantive purpose for doing so! "rom a liberal perspective, this means that a domestic coalition of social interests that benefits directl and indirectl from particular regulation of social interdependence is more powerfull represented in decision ma/ing than the countervailing coalition of losers from cooperation & compared to the best unilateral or coalitional alternatives! This is sometimes mislabeled a realist (#interest$based%) claim, et most such formulations follow more from patterns of convergent state preferences than from specific patterns of state power (e!g!, 'bbott 788H)! Thus, liberals have no reason to disagree with +ac/ Aoldsmith and <ric 3osner?s claim that much important state behavior consistent with customar international law arises from pure coincidence

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(independent calculations of interest or ideals), the use of IL as a coordination mechanism (in situations where s mmetrical behavior increases pa offs), or the use of IL to facilitate cooperation where coordinated self$restraint from short$term temptation increases long$term issue$specific pa offs (as in repeated bilateral prisoners? dilemma, where pa offs to defection and discount rates are low) (Aoldsmith and 3osner 5BBB6 557L)! Contrar to Aoldsmith and 3osner, however, liberals argue that such cases do not e(haust the potential for anal :ing or fostering legali:ed cooperation! The decisive point is that if social support for and opposition to such regulation varies predictabl across time, issues, countries, and constituencies, then a liberal anal sis of the societal and substate origins of such support for and against various forms of regulation is a logical foundation for an e(planation of when, where, and how regulation ta/es place (*eohane 5BH7C Legro 5BBLC 2ilner 5BBLC 2oravcsi/ 5BBLC La/e and 3owell 5BBBC -endt 5BBB)! The pattern of preferences and bargaining outcomes helps define the underl ing #pa offs% or #problem structure% of the #games% states pla & and, therefore, help define the basic potential for cooperation and conflict! This generates a number of basic predictions, of which a few e(amples must suffice here! "or liberals, levels of transnational interdependence are correlated with the magnitude of interstate action, whether essentiall cooperative or conflictual! -ithout demands from transnationall interdependent social and substate actors, a rational state would have no reason to engage in world politics at allC it would simpl devote its resources to an autar/ic and isolated e(istence! 2oreover, voluntar (noncoercive) cooperation,

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including a sustainable international legal order that generates compliance and evolves d namicall , must be based on common or compatible social purposes! The notion that some shared social purposes ma be essential to establish a viable world order, as +ohn Ruggie observes (5BH7), does not follow from realist theor & even if some realists, such as 1enr *issinger, assumed it (5BB= LB)! The greater the potential >oint gains and the lower the domestic and transnational distributional concerns, the greater the potential for cooperation! -ithin states, ever coalition generall comprises (or opposes) individuals and groups with both #direct% and #indirect% interests in a particular polic 6 direct beneficiaries benefit from domestic polic implementation, whereas indirect beneficiaries benefit from reciprocal polic changes in other states (Trachtman 7858)! 3references help e(plain not onl the range of national policies in a legal issue, but also the outcome of interstate bargaining, since bargaining is often decisivel shaped b as" etrical

interde!endence # the relative intensit of state preferences for inside and outside options (*eohane and N e 5BLL)! ,tates that desire an outcome more will pa more & either in the form of concessions or coercion & to achieve it! Trade illustrates these tendencies! ,hifts in comparative advantage and intra$ industr trade over the past half$centur have generated stri/ing cross$issue variations in social and state preferences! Trade creates coalitions of direct and indirect interests6 importers and consumers, for e(ample, generall benefit from trade liberali:ation at home, whereas e(porters generall benefit from trade liberali:ation abroad! 3atterns of trade matter as well! In industrial trade, intra$industr trade and

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investment means liberali:ation is favored b powerful economic interests in developed countries, and cooperation has led to a massive reduction of trade barriers! ' long period of e(ogenous change in trade, investment, and technolog created a shift awa from North&,outh trade and a post&-orld -ar II trade boom among advanced industrial democracies! Large multinational e(port and investment interests mobili:ed behind it, creating ever$greater support for reciprocal liberali:ation, thereb facilitating efforts to deepen and widen Aenerali:ed 'greement on Tariffs and TradeN-orld Trade Mrgani:ation (A'TTN-TM) norms (Ailligan 5BBLa)! In agriculture, b contrast, inter$industr trade patterns and lac/ of developed$countr competitiveness has meant that powerful interests oppose liberali:ation, and agricultural trade has seen a corresponding increase in protection! .oth policies have massive conse)uences for welfare and human life! In trade negotiations, as liberal theor predicts, as mmetrical interdependence is also a source of bargaining power, with governments dependent on particular mar/ets being forced into concessions or costl responses to defend their interests! 2ore recentl , as developed economies have focused more on environmental and other public interest regulation, liberali:ation has become more comple( and conflict$ridden, forcing the A'TTN-TM and <uropean 4nion (<4) s stems to develop new policies and legal norms to address the legal comple(ities of #trade and% issues! In environmental polic , cross$issue variation in legal regulation (the far greater success of regulation of o:one depletion than an area such as climate change, for e(ample) reflects, most fundamentall , variation in the convergence of underl ing

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economic interests and public polic goals (*eohane and ;ictor 7855 The willingness of <4 member states to move further than the more diverse and less interdependent -TM is similarl predictable! ) The #fragmentation% of the international legal s stem due to multiple, overlapping legal commitments reflects, from a liberal perspectives, underl ing functional connections among issues due to interdependence, rather than autonomous tactical or institutional lin/age! ('lter and 2eunier 788B)! ! In global financial regulation, regulator heterogeneit under conditions of globali:ation (especiall , in this case, capital mobilit ) undermines the authorit and control of national regulators and raises the ris/ of #races to the bottom% at the e(pense of individual investors and national or global financial s stems (,immons 7885C 0re:ner 788LC ,inger 788LC 1elleiner, 3agliari, and Oimmermann 7858C .rummer 7855)! 2a>or concerns of international legal action include ban/ing regulation, which is threatened when ban/s, investors, and firms can engage in offshore arbitrage, see/ing the lowest level of regulationC regulator competition, where pressures for lower standards are created b professional, political, and interest group competition to attract capitalC and e(acerbation of s stemic ris/ b cross$ border transmission of domestic financial ris/s arising from bad loans or investments, uninformed decisions, or assumed ris/ without ade)uate capital or collateral! Coordination of international rules and cooperation among regulators can address some of these concerns, but in a world of regulator heterogeneit , it poses the problem of how to coordinate polic and overcome political opposition from those

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who are disadvantaged b an standard! 1igh levels of heterogeneit in this issue area, and the broad impact of finance in domestic economies, suggest that legal norms will be difficult to develop and decentrali:ed in enforcement! ,imilar variation can be observed in human rights! The most important factors influencing the willingness of states to accept and enforce international human rights norms involve domestic state&societ relations6 the pree(isting level and legac of domestic democrac , civil conflict, and such! <ven the most optimistic assessments of legali:ed human rights enforcement concede that international legal commitments generall e(plain a relativel small shift in aggregate adherence to human rights (,immons 788B)! . contrast, liberal theories account for much geographical, temporal, and substantive variation in the strength of international human rights norms! The fact that democracies and post$authoritarian states are both more li/el to adhere to human rights regimes e(plains in part wh <urope is so far advanced & and the constitutional norms and conservative legac in the 4nited ,tates is an e(ception that proves the rule! Recent movement toward >uridification of the <uropean Convention on 1uman Rights s stem, with mandator individual petition and compulsor >urisdiction, as well as the establishment of a court, occurred in part in response to e(ogenous shoc/s & the global spread of concern about human rights and the #second% and #third% waves of democrati:ation in the 5BH8s and 5BB8s & and in part in order to impose them on new members! 3olitical rights are firml grounded in binding international law, but socioeconomic and labor rights are far less so & a reflection not of the intrinsic philosophical implausibilit of the latter, but of large

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international disparities in wealth and social pressures on governments to defend e(isting domestic social compromises (2oravcsi/ 7887, 7884)! <ven e(isting political rights are constrained in the face of economic interests, as when member states ignore indigenous rights in managing large developmental pro>ects! Liberal theories appl also to securit areas, such as nuclear nonproliferation! Constructivists maintain that the behavior of emerging nuclear powers & such as India, 3a/istan, Israel, North *orea, and Iran & is governed b principled normative concerns about fairness and h pocris 6 if e(isting nuclear states were more willing to accept controls, new nuclear states would be! Realists argue that the application and enforcement of the nonproliferation regime is simpl a function of the cost$effective application of coercive sanctions b e(isting nuclear statesC were the not threatened with militar retaliation, states would necessaril be engaged in nuclear arms races! .oth reasons ma be important causes of state behavior under some circumstances! The liberal view, b contrast, h pothesi:es that acceptance of non$proliferation obligations will reflect the underl ing pattern of material and ideational interests of member states and their societies! Insofar as the are concerned about securit matters, it reflects particular underl ing ideational or material conflicts! Recent research findings on compliance with international nonproliferation norms confirm the importance of such factors! The great ma>orit of signatories in compliance lac/ an evident underl ing desire to produce nuclear weapons! Those that fail to sign face particular e(ogenous preference conflicts with neighbors or great powers (1 mans 788IC Arotto 788HC ,agan 7855)!

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. Liberal !"#lanations for the Institutional &or' and Co'#liance

,o far, we have considered the implications of liberal IR theor for e(plaining the substance of cooperation, not its form6 when states cooperate legall , but not how the go about it! This ma seem appropriate! Mne might suppose that such a liberal theor is all one needs, for international law is no more than a simple coordination mechanism that ratifies what states would do an wa ! (This sort of e(planation is often mislabeled #realist,% but it is more often a crude version of liberal theor , since, in most accounts, it is a convergence of social preferences, not interstate centrali:ation of coercive power, that e(plains most of the variation in underl ing state interests!) This ma sometimes be enough! Ket in some cases international law surel pla s a more independent role! "or such cases, liberal theories almost alwa s must still be properl emplo ed as a #first stage,% e(plaining the distribution of underl ing preferences! 'fter that, anal sts ma hand off to other (realist or institutionalist) theories to e(plain choice of specific legal forms, compliance pull, and long$term endogenous evolution! These #later$stage% theories ma contribute to defining the ultimate problem structure b considering factors such as information and transaction costs, coercive power resources, various t pes of beliefs, and various process variables! 's long as one assumes purposive state behavior, as all these theories do, however, liberal theor ?s focus on variation in social interdependence, the substantive calculations of powerful domestic and transnational groups, and state preferences must properl be considered first! Mne cannot theori:e the efficient matching of means to ends without first e(plaining the

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choice of ends! Indeed, liberal theor ma constrain (or even supplant) the theories that are appropriate to emplo in later stages of the multicausal s nthesis, because the nature of underl ing preferences is a decisive factor shaping the nature of strategic interaction (2oravcsi/ 5BBL, 5BBHC La/e and 3owell 5BBB)! Realist theories, for e(ample, assume an underl ing e(pected conflict of interest sufficient to motivate costl coercive strategies, whereas institutionalist theories assume underl ing positive$sum collective action problems! (The role of non$rational theories is more comple(!) In this view & to e(tend ,tephen *rasner?s celebrated metaphor & once liberalism defines the shape of the 3areto frontier, realism e(plains distributional outcomes, and institutionalism e(plains efforts to ma(imi:e efficienc and compliance (5BB5)! This role of liberal theor as the primar stage of multi$causal e(planation is an important and increasingl widel recogni:ed one! Ket, to limit the scope of liberal international theories solel to a #first$stage% e(planation for initial preference formation and the substance of legal norms would be to ignore man of the fundamental contributions that liberal theor has made, or can potentiall ma/e, to the stud of the institutionali:ation, enforcement, and evolution of international law! There are three specific wa s in which involvement of social actors can have a direct influence on institutional form and compliance pull! "irst, the future preferences of individuals and groups have influence decisions about institutionali:ation and complianceC second, man international legal rules directl regulate the behavior of non$state actorsC and third, man international enforcement s stems are #vertical,%

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functioning primaril b embedding international norms in domestic institutions and politics! Let us consider each in turn!
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(. $ocial )references Influence Institutional %elegation and Co'#liance

Mn a conventional functional understanding, international law influences behavior b pre$committing governments with short time hori:ons or uncertaint about future social circumstances and preferences! ,tates maintain international legal regimes to enhance their capacit for elaborating and enforcing regime norms b enhancing reciprocit , reputation, and retaliation! Ket, from a liberal perspective, cooperation is also what *eohane and N e (5BLL) term #comple( interdependence% and Robert 3utnam (5BHH) calls a #two$level game,% in which national leaders bargain not >ust with foreign counterparts, but also with domestic social actors at home and abroad! Legal institutions are, in essence, efforts to establish current arrangements that will appropriatel shape not >ust future interstate interaction, but also future domestic and transnational state&societ relations! "uture state$societ relations are to some degree inherentl uncertain, due to e(ogenous trends and shoc/s or endogenous feedbac/ induced b commitment to international law! -ere this not the case, governments would not need to establish international regimes or overarching norms, such as #legalit ,% but could simpl enter into specific narrow substantive agreements on whatever sub>ect is of importance to them! It is uncertaint that generates much of the demand for transaction$cost&reducing international regimes! To anal :e or evaluate such processes precisel , we must depart from the hori:ontal state$to$state politics and incorporate information about the current and future demands of social

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groups and the nature of representative institutions! ;ariation in present and future social preferences & the direction, intensit , ris/ and uncertaint , and time hori:on of social demands & can have a direct impact on institutional design and compliance! ,mart polic ma/ers will design institutions so as to shift and channel social preferences in the future in a direction consistent with their favored view of elaboration of and compliance with the legal regime! ;ariation in the fle(ibilit of compliance mechanisms is >ust one e(ample of the wa in which the institutional design of international legal agreements ta/es into account e(pected shifts in preferences! -hen entering into a legal commitment, a rational state must weigh the advantages and disadvantages of being bound in the future! The design problem is delicate6 e(cessive rigidit might encourage defection, et e(cessive fle(ibilit might encourage abuse! Recent wor/ has sought to locate the #optimal% level and form of e$ ante commitment (Aoldstein and 2artin 78886 I84)! The critical factor is not primaril whether the domestic sector in )uestion is #sensitive% or #sovereign%6 it is often in the most sensitive areas, such as diplomatic immunit , arms control, or agricultural polic , where we see the most rigid rules! The critical point is rather the level of current uncertaint and intensit of concern about future e(ogenous shoc/s, which might tempt states to defect! There are a number of institutional solutions to this problem! Rosendorff and 2ilner argue for establishing proper e$ ante penalties (7885)! , /es (5BB5), 0owns and Roc/e (5BB@), and 3elc (788B) li/ewise argue for the utilit of escape clauses in international agreements! *oremenos (7887) argues that sunset clauses would permit

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ris/$averse states to renegotiate agreements! Cha es and Cha es (5BB@) argue for capacit building for governments in trouble! *leine (7855) observes that the <4 emplo s e$ !ost negotiation over e(ceptions, which ma be more efficient than the more rigid solutions above, because it permits governments to elicit new information about the true nature of social demands for e(ceptions and amendments e$ !ost% while insulating governments against pressures from domestic special interests& "or e(ample, it would hardl have been useful for <uropean governments to have set #optimal% penalties for ignoring <uropean Court of +ustice (<C+) >udgments in 5B@L, when the entire legal evolution of the s stem was unforeseen, and it is suboptimal to do so in an given case solel on the basis of prior /nowledge (.urle and 2attli 5BB=C ,laughter$.urle 5BB=C -eiler 5BBI)! The pattern of social preferences, present and future, often defines whether interstate interaction appro(imates a game of coordination or a game of collaboration, with implications for institutional form! ,ome international agreements govern coordination games, in which bargaining to agreement ma be difficult, but a coalition of social actors has little incentive to press for unilateral defection from an agreement (*eohane 5BH7, 5BH4)! Coordination games re)uire mechanisms to overcome bargaining problems, the intensit of which depend on informational challenges and the e(tent of distributional conflict! Mther agreements govern collaboration games, in which social actors have a strong incentive to press for defection, creating a prisoners? dilemma structure (2artin 5BB7)! Collaboration games re)uire multi$issue lin/ages, stronger oversight, and enforcement mechanisms

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to secure compliance! <ven the e(tent to which a regime is based on reciprocit at all is a function of the distribution of social interests! Consider, for e(ample, postwar international trade cooperation! Industrial tariff reductions among developed countr members of the <uropean <conomic Communit (<<C) and the A'TT in the 5B@8s and 5BI8s appear to have generated a coordination game! Negotiation among man detailed issues was sometimes technicall comple(, but once a handful of #sensitive sectors% had been e(cluded, cross$cutting ties of intra$industr trade and investment created reciprocal interest in membership and a low incentive to defect unilaterall ! There is some reason to believe that institutionali:ation of implementation and binding interstate dispute resolution added little (Ailligan 5BBLb)! Contrast this with contemporaneous efforts to liberali:e declining industrial sectors and agriculture, where strong veto groups e(isted, and patterns of factor abundance and sectoral advantage were cross$cutting, and with the rise of #trade and% issues, in which trade liberali:ation comes in conflict with increasingl varied public regulator concerns! These issues created sectoral conflicts of interest re)uiring oversight, dispute resolution, and enforcement to clarif obligations and secure compliance! -ithin <urope, cooperation was impossible in areas li/e agriculture without a comple( regional subsid regime, a set of e(ceptions and safeguards in the A'TT, and far more centrali:ed oversight! 'nother e(ample of how e$ ante social preferences influence institutional design, which feeds bac/ on social preferences, arises when leaders e(ploit international norms to impose favored domestic policies at home! The conventional

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view of international cooperation focuses on #indirect% benefits, treating domestic commitments solel as a necessar 'uid !ro 'uo to secure foreign adherence to international norms! Ket, domestic coalitions generall also include those who gain #direct% benefits, sometimes led b politicians who see/ to impose domestic competitiveness, democrac , environmental )ualit , or other longer$term reform goals! 2e(ican entr into the North 'merican "ree$Trade 'greement, Chinese entr into the -TM, Republican support for free trade in the 4nited ,tates, and <ast <uropean entr into the <4 have all been interpreted in this wa ! The tendenc of new democracies to favor international human rights commitments and to respond with greater compliance has been seen as a self$interested effort to entrench human rights in domestic institutions and practices (2oravcsi/ 7888C 1athawa 788L)! Traditionall , more advanced democracies have also >oined human rights regimes to gain foreign polic e(ternalities in situations of underl ing ideological conflict (2oravcsi/ 7888C Landman 788@)! Mne methodological implication of the liberal approach is that an stud of institutional impact must be rigorousl controlled for variation in e(ogenous preferences6 this discussion of compliance and impact is closel connected with the previous discussion of delegation and substantive content! The anal st needs to understand the basic elements that lead a state to commit to international legal mechanisms initiall , because states often sign agreements with which the intend to compl ! 1igh rates of compliance ma not suggest an thing about the power of international law, but could simpl signal prior convergent preferences! In order to

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distinguish the independent effect of legal institutions from bac/ground preferences, an anal sis of international law must ta/e place in two stages! ,cholars have attempted to cope with this issue with #two$stage% selection models, in which one e(plains which states sign which treaties, and then model how treaties then affect compliance decisions with a new specification of preferences that see/s to isolate circumstances in which compliance is costl (e!g! ,immons 788B)!
C

*. International Law %irectl+ Regulates $ocial Actors

' second wa in which variation in social preferences helps e(plain institutional choice and compliance is that international law and organizations a" regulate or in(ol(e social )*non+state,- actors directl"! 2an international legal rules and procedures are not primaril designed to shape state polic and compliance, as in the classic model of public international law or conventional -TM dispute resolution, but to assist states in regulating domestic and transnational social actors ('lter 788H)! -hen states cooperate to manage matters such as transnational contract arbitration, mone laundering, private aircraft, multinational firms, emissions trading, or the behavior of international officials, for e(ample, or when the assist refugeesC establish institutions within failed statesC or combat terrorism, criminalit , or pirac C recogni:e nationalist movementsC or grant rights of participation or representation to private actors in international deliberations, the directl influence domestic and transnational non$state actors such as corporations, nongovernmental organi:ations (NAMs), private individuals, political movements, international organi:ations, and criminal and terrorist organi:ations! The legal enforcement of man such regulator

74

regimes functions b empowering individuals and groups to trigger international legal proceedings vis$P$vis states! 's we shall see, the greater the range of private access to an international regime, all other things being e)ual, the more li/el it is to be effective and d namic! Mften, such access is a function of the issue area itself! It is customar within nations for individuals to trigger litigation about rights, independent prosecutors to trigger criminal prosecutions, and interested parties to sue to assert economic rights and enforce contracts, and the international s stem is no different! 2an , perhaps most, international legal instruments are not #self$binding% for states at all, but are instead #other$binding% ('lter 788H)! The do not force the signator states to delegate direct sovereignt over government decisions, but are designed primaril to constrain non$state actors! ,ome regulate international organi:ations, establishing international procedures or regulating the actions of international officials! 2an other international legal rules oversee the behavior of private actors! 2uch private international law governs corporate activit , individual transactions, investment, communications, and other transnational activities, mostl economic, b non$state actors ('lter 788H)! -hich non$state actors are regulated and how the are regulated b international law is itself determined b the interests and political strength of those and other social groups! (e.g., Keohane and Victor 2011). Mther rules govern different aspects of individuals and NAMs! It is conceivable that a government ma find such rules onerous, >ust as it ma find an entrenched domestic law onerous, but there is no particular reason to assume that this is more li/el in

7@

international than domestic life & or that there are #sovereignt costs% associated with international legal obligations of this /ind (Aoldsmith and 3osner 788@)! -e cannot understand the attitude of states without the subtle understanding of state$societ relations provided b liberal theor !
C

=! ,ertical !nforce'ent of International Law on the %o'estic )lane

' third wa in which social preferences help e(plain institutional choice and compliance issues relating to international law is that co !liance with an" international legal nor s does not rel" on *horizontal, interstate reci!rocit" and retaliation% but instead on *(ertical, enforce ent e bedded in do estic !olitics )*internalization,-! 2an , perhaps most, international legal regimes are enforced verticall rather than hori:ontall ! ' traditional #hori:ontal% perspective treats international legal obligations as e(ternal institutional constraints on state sovereignt , enforced b interstate retaliation, mediated b via reciprocit , reputation, or lin/age (3osner and Koo 788@a)! The hori:ontal path envisages a role for institutions to render threats to manipulate interdependence more transaction$cost efficient! Institutions ma establish norms for granting or revo/ing reciprocal polic concessions, including or e(cluding countries in a club, or responding in a lin/ed issue area! The #vertical% path to compliance foresees compliance and enforcement without retaliation! Instead, it see/s to alter the preferences and relative influence of social (non$state) actors who favor and oppose compliance, loc/ing in international norms domesticall or transnationall b establishing new legal institutions, shifting coalitions, and creating

7I

new ideas of public legitimac (.urle and 2attli 5BB=C Cha es and Cha es 5BB=, 2oravcsi/ 5BBHC 0ai 788@C 'lter 788HC ,immons 788B)! 2an anal ses assume that, in issues such as trade, where reciprocal concessions are e(changed at the bargaining stage, enforcement also rests on such mechanisms! Thus, hori:ontal enforcement is often seen as the core of international relations, whereas vertical enforcement is often seen (particularl b political scientists) as a secondar mechanism that functions almost e(clusivel in e(ceptional areas such as human rights, where reciprocit is rarel a credible enforcement tool and opportunities for lin/ages are scarce! In fact, however, vertical mechanisms ma be the primar enforcement mechanisms, and reciprocit and retaliation secondar , in most international legal regimes! Consider, for e(ample, the <4, the world?s most ambitious and effective international economic regime and, in the e es of leading liberal international law ers 'nne$2arie ,laughter and -illiam .ur/e$-hite, the world?s most advanced liberal international order (788I)! The <4?s founding Treat of Rome not onl does not facilitate retaliation, it bans it! 1ence, it is impossible to anal :e compliance with <4 law without theori:ing vertical enforcement through domestic social coalitions, political institutions, ideational framewor/s, transnational networ/s, and >udicial mechanisms! ,imilarl , in the A'TTN-TM, it is possible to view compliance mechanisms as largel constructed at the domestic level, for e(ample through insulating and adopting internationall compliant trade law and bureaucratic structures, mobili:ing interest group support, or spreading free$trade norms The A'TT possessed notabl ineffective enforcement mechanisms, and,

7L

although those of the -TM are somewhat stronger, it is unclear whether retaliation, legali:ed or not, actuall e(plains levels of compliance! (Aoldstein and 2artin 7888C 'bbott 788HC 0avis and .ermeo 788B)! ;ertical enforcement ma ta/e three forms, each consistent with a different variant of liberal theor ! Law ma alter state&societ relations and state preferences via interests, institutions, or ideas! The first and simplest mechanism of vertical enforcement, in accordance with republican liberal theor , is a change domestic and transnational representative institutions! 2an international obligations are incorporated as constitutional amendment, domestic legislation, treat law, or through bureaucratic bodies, rules, and procedures! ,uch changes are important, on the liberal understanding, insofar as the tilt the domestic representative bias among decision ma/ers on various issues (2oravcsi/ 5BB@, 7888C ,immons 788B)! Legal or bureaucratic incorporation can place international norms onto the national legislative and e(ecutive agenda, increase their salience, and give s mpathetic public officials and private individuals a bureaucratic edge! In rule$of$law s stems, national officials and courts have some obligation to implement and enforce these norms! Individual litigants, law ers, and especiall NAMs and corporations, ma be able to cite international norms in domestic courts and international tribunals, as occurs in the human rights realm (Risse and ,i//in/ 5BBBC ,i//in/ 7855)! Christina 0avis and ,arah .ermeo have anal :ed -TM dispute settlement as a mechanism used b leaders to #manage domestic politics% b signaling resolve at home and abroad (788B6 58=L)!

7H

3articipation in ongoing international negotiation and enforcement procedures ma strengthen the autonom of e(ecutives, foreign ministries, trade ministries, and others whose #public interest% view can reliabl be e(pected to prevail in favor of cooperation over special interest opposition, as is often the case in trade (2oravcsi/ 5BB4C 0avis 7884)! "inall , involvement in legal institutions ma lin/ issues domesticall , empowering counter$coalitions at home against those who would violate international norms, as occurs within trade polic ! 'nother republican liberal mechanism of vertical institutional enforcement wor/s through the adoption and implementation of soft$law norms b national regulators & often wor/ing in networ/s, a characteristic ,laughter associates with #the new world order% (,laughter 7884)! 2uch <4 governance can be understood as coordination run through the Council of 2inisters and its committees, in which national officials pla a permanent, but in man wa s informal, role in legislation, regulation, and enforcement! 't the global level, we see a similar process in international finance! Mf the .asel financial s stem, .rummer observes6
<DT In

this decentrali:ed regulator space, the national&international

dichotomies associated with public international law do not appl ! National regulators are responsible for devising rules and participating in international standard$setting bodies! International standard$setting bodies serve as inter$ agenc forumsC the are run b consensus and their members (national regulators) are responsible for implementing legislative products! (78556 7L=)

7B

3ublic&private partnerships perform a similar function for polic implementation! ,hared international legal norms and ideological interdependence can create situations for domestic courts with domestic legal autonom to enter into transnational >udicial dialogues with international tribunals and domestic >udges in other countries ('lter 5BBHC Raustiala 7887C ,laughter 7884)! ,laughter argues that #FnGational courts are the vehicles through which international treaties and customar law that have not been independentl incorporated into domestic statutes enter domestic legal s stems% (78886 558=)! This is particularl true in human rights areas, where common law courts have become the agents of incorporating international norms & a process 2elissa -aters calls #creeping monism% (788L)! 0omestic courts have become mediators of transnational norms on issues such as the death penalt , human rights, and a range of free speech issues, including hate speech, defamation, and Internet activit (-aters 788@)! ' second mechanism of vertical enforcement, this time in accordance with commercial liberalism, is to transform the interests of domestic and transnational social groups! "rom a liberal perspective, the purpose of international cooperation is rarel simpl to fi( a particular static interstate bargain, but to engineer beneficial and enduring transformation of the domestic and transnational econom , societ , and politics! (Recall that international legal regimes are, b their ver nature, established in circumstances of repeat pla under uncertaint , with a time hori:on into the futureC otherwise, spot agreements would do!) If new policies were not #loc/ed in% in this wa b fundamental social, institutional, and cultural change, governments would

=8

still be fighting and refighting the same battles over international cooperation with the same supporters and opponents, decade in and decade out! Issues would never be resolved, e(cept b e(ogenous social, economic, or cultural change! Inducing endogenous shifts in preferences & #internali:ation% of norms & is thus not simpl a side$effect of cooperation essential to enforcement and complianceC it is often, although not alwa s, the ob>ective ('bbott 788H)! To the e(tent that domestic economic groups reorient their behavior around these norms, ma/ing investments in economic activit predicated on their continued validit , the norms are internali:ed! -hen a state implements a trade liberali:ation agreement, for e(ample, the resulting import competition eliminates some domestic firms that opposed liberali:ation, causes others to ad>ust in wa s that reduce their demand for protection, and e(pands or creates e(porting firms that benefit from free trade! The result is greater support for enforcement of trade liberali:ation (.aile , Aoldstein, and -eingast 5BBLC 1athawa 5BBH)! <ven Cha es and Cha es? #managerial approach% contemplates the possibilit that states might generate the desired and re)uired social and economic changes in the legall specified time (5BB=)! To be sure, if domestic groups are strong enough to bloc/ adaptation and secure subsidies, as is the case in agriculture and some other declining sectors, this process will not ta/e place (Ailligan 5BBLbC 1isco( 7887C 0esbordes and ;auda 788L)! 'nother e(ample is the issue of nonproliferation! Aovernments that promote uniform enforcement of nonproliferation norms tend to have minimal e(ogenous preference conflicts with neighbors or great powers, whereas those that oppose them

=5

tend to have important conflicts! 'lthough the are unli/el to eschew nuclear weapons, studies show that democracies are less li/el to cheat on nonproliferation treat (N3T) commitmentsC we do not /now whether this is because the are more constrained in what the select, more cautious about h pocris , or more vulnerable to whistleblowers (,agan 78556 7=B&48)! 2uch research suggests, however, that genuine compliance re)uires deeper #N3T$plus% obligations! 4nderstanding whether governments are li/el to compl with such norms re)uires an anal sis of economic interests, local securit conflicts, global mar/et connections of the civilian nuclear power industr , and leadership structure of states, which can inhibit them from accepting the onerous obligations of committing to goals such as the prevention of smuggling, restrictions on domestic fuel c cle activities, the proper management of spent$fuel resources, the implementation of container shipping protocols, and such (Arotto 788H6 5L&5H, 7=&74)! ' third mechanism of vertical enforcement, this time in /eeping with ideational liberalism, is to encourage enforcement b embedding new collective ob>ectives in the minds of domestic and transnational actors! International organi:ations can render ideas more salient in the minds of groups able to transmit and publici:e favorable international norms! Commonl cited e(amples include the impact of national human rights commissions, human rights units in foreign ministries, independent financial institutions, and scientific establishments on the substantive preferences of domestic and transnational actors (3! 1aas 5BHBC Risse and ,i//in/ 5BBBC 0ai 788@)! Liberals believe this is most li/el to occur when such

=7

domestic groups are inclined, or can be sociali:ed, to s mpathi:e with the values and interests underl ing international norms or can benefit professionall or in other wa s from such values! International legal regimes ma also affect opportunities and incentives for social actors to organi:e, mobili:e, and represent their views domesticall and transnationall ! International law can accord NAMs, corporations, or individuals formal rights of representation, participation, or observation in transnational deliberations or international activities (*ec/ and ,i//in/ 5BBH)! This differs from the constructivist view of preference change, whereb groups engage in a process of #acculturation% in which the see/ conformit with the rules of an international reference group for its own sa/e! 1ere the emphasis is on self$interest or persuasion to adhere to substantive ideals in tune with pree(isting concerns (e!g!, Aoodman and +in/s 78846 IL8&L=!) Liberals argue that domestic groups must have an interest or ideal at sta/e, even if that interest ma simpl be professional advancement & an of which ma also lead them to avoid e(clusion and social stigmati:ation & as in ,laughter?s anal sis of <uropean integration! Mne e(ample from public international law is 4nited Nations (4N) ,ecurit Council decisions on intervention! Non$liberals might view such decisions as epiphenomenal to power politics, or as means to coordinate the e(pectations and actions of governments! Liberals view them as a means of shaping the preferences of individuals and groups! ,ubse)uent social support for intervention, both elite and popular, is in part a function of the process and outcome of ,ecurit Council decision ma/ing & not least in third countries uninvolved in the decision itself (;oeten 788@)!

==

C. !"ogenous and !ndogenous !volution of International Law

' particular advantage of the liberal accounts of the substance, form, and enforcement of international law is that the can be e(tended to particularl detailed and plausible accounts of the long$term evolution of international legal norms! International law can evolve through liberal mechanisms of either e(ogenous or endogenous change! .$ogenous change ta/es place when autonomous changes in underl ing ideational, commercial, and republican factors drive the elaboration, e(pansion, and deepening of international legal norms over time! ,ince e(ogenous trends in core liberal factors such as industriali:ation, competitiveness, democrati:ation, globali:ation, and public ideologies often continue for decades and centuries, and var widel geographicall and functionall , such theories can support e(planations for #big$picture% regularities in the scope and evolution of international law over the long term, among countries and across issues (2ilner and *eohane 5BBIC *ahler 5BBB)! This offers a particularl powerful means of e(plaining trends in substantive content! "or e(ample, nineteenth$ and twentieth$centur waves of democrac and industriali:ation have driven a stead shift awa from treaties governing militar , territorial, and diplomatic practice to treaties governing economic affairs, which now dominate international law ma/ing and the activit of international tribunals, and in recent ears toward human rights and human securit , although the latter still remain onl 5@ percent of the total (*u 7885)! 'lso consistent with factors such as democrati:ation, industriali:ation, and education is the fact that the development of

=4

international law has been geographicall focused in developed countries, notabl <urope, and has emanated outward from there! .ndogenous evolution occurs when initial international legal commitments trigger feedbac/, in the form of a shift in domestic and transnational state&societ relations that alters support for the legal norms! In liberal theor , such feedbac/ can influence material interests (commercial liberalism), prevailing conceptions of the public good (ideational liberalism), or the composition of the #selectorate% (republican liberalism), thereb changing state preferences about the management of interdependence! <ach of these three liberal feedbac/ loops creates opportunities for #increasing returns% and internali:ation, but the do not assure that it will ta/e place! It ta/es place, on the liberal account, onl if the net preferences of groups mobili:ed b cooperation are positivel inclined toward cooperation, and if those groups are powerful enough to have a net impact in domestic political s stems! Isolating e(amples and conditions under which this ta/es place is an ongoing liberal research program! <(ogenous and endogenous effects are often found together! There is, for e(ample, broad agreement that e(ogenous shifts in technolog , underl ing mar/et position, and a desire to e(pand permanentl the si:e, wealth, and efficienc of the tradable sector of the econom e(plains the general direction of postwar changes in trade policies! .aile , Aoldstein, and -eingast (5BBL) argue that postwar, multilateral trade liberali:ation generated domestic economic liberali:ation, thereb increasing the underl ing social support for further rounds of trade liberali:ation in a

=@

continuing virtuous circle of deepening international obligations! ' strateg li/e <4 enlargement is e(pressl designed to use this sort of incentive not >ust to induce a shift in trade polic , but also to engineer broader economic and political reform, as well as more cooperative international policies in the future (.erman 5BB@C 1itchcoc/ 7884)! In the <4 and elsewhere, vertical and hori:ontal >udicial networ/ing can encourage deeper forms of tacit cooperation, such as #>udicial comit ,% in which >udges mutuall recogni:e that #courts in different nations are entitled to their fair share of disputesEas co$e)uals in the global tas/ of >udging% (,laughter 78886 555=)! 's a result, domestic courts no longer act as mere recipients of international law, but instead shape its evolution (.envenisti and 0owns 788BC Conant 7857)! 2oreover, as we saw in the area of multilateral trade, legal cooperation ma have broader effects on political and economic s stems, both intended and unintended! <ven "rench 3resident Charles de Aaulle, in man wa s an archet pical defender of traditional sovereignt , committed "rance to firm legal developments with the deliberate goal of fundamentall reforming and moderni:ing the "rench econom & adaptations that altered "rench attitudes over the long term and facilitated more cooperation! 2ore recentl , <4 enlargement has been emplo ed as a means to encourage broad reforms in domestic politics, economics, and societies! <ven the distant prospect of enlargement, as was the case in Tur/e , encouraged movements toward Islamist democrac that are now irreversible (Tocci 788@C Robins 788L)!

=I

-hat is the relative impact of e(ogenous and endogenous effects on international law9 1ere, research still progresses and, obviousl , the answer depends on the specific case! Nonetheless, the available evidence suggests that, in general, e(ogenous factors seem to have a more significant effect than endogenous ones on substantive state policies! The broad constraints on compliance and elaboration tend to be set b patterns of interdependence among countries with underl ing national preferences & even if endogenous effects can dominate on the margin and in particular cases! Consider two e(amples! Mne is <uropean integration! #Neo$ functionalists,% such as <rnst 1aas, long stressed the essential importance of endogenous processes (#spillovers%) in e(plaining integration! Recentl , 'lec ,tone ,weet and -a ne ,andholt: (5BBL) have sought to revive the argument for endogenous effects, presenting legal integration as the primar cause of economic integration! Ket, it is now widel accepted that <urope has responded primaril to e(ogenous economic and securit shoc/s! Nearl all basic economic anal ses, which leave little doubt that e(ogenous liberal processes (factors such as si:e, pro(imit , level of development, common borders, common language) e(plain the bul/ (around H8 percent) of postwar economic integration in <urope, leaving about 78 percent for other factors, such as endogenous legal development ("ran/el 5BBL6 H8&HH)! ,imilarl , in the area of human rights, the consensus in the literature is that the effect of international human rights norms on state behavior is marginal (1athawa 788LC 1afner$.urton, forthcoming)! <ven those scholars who claim the most for legal

=L

norms concede that their impact is uneven and secondar to underl ing e(ogenous factors (,immons 788B)! Ket, the focus on substantive outcomes ma underestimate some endogenous effects! In the same case of the <<C, -eiler, ,laughter, 'lter, and others have persuasivel demonstrated that initial legal delegation and intervening feedbac/ processes (sometimes unforeseen and even, in part, unwanted b national governments) can decisivel influence the form of legal cooperation & even if the are not the primar cause of substantive cooperation! <uropean Court of +ustice >urisprudence embedded itself in domestic legal s stems and helped establish #supremac ,% #direct effect,% and other doctrines! <(plaining this process re)uires close attention to the liberal micro$incentives of litigants, domestic >udges, and international courts under supranational tribunals & to which we now turn ('lter 5BBHC .urle and 2attli 5BB=C -eiler 5BB5)!

'

III. International Tribunals- Liberal Anal+sis and Its Critics

Institutional conditions for successful enforcement and endogenous feedbac/ have been most intensivel anal :ed in studies of international tribunals! 's we have >ust seen, ,laughter helped pioneer the anal sis of #supranational ad>udication% in the <4, arguing that the /e is not simpl international enforcement but the internationali:ation of norms in domestic legal s stems6 litigants bring cases to domestic courts, which interact with international tribunals, and international norms feed bac/ into domestic legal s stems (.urle and 2attli 5BB=)! The <uropean e(perience, according to ,laughter and 1elfer,

=H

<DT challenges

us to transcend the traditional framewor/ of #state versus

tribunal,% summoning an image of a confrontation between two discrete entities in which the outcome depends upon whether the state defines its (unitar ) national interest to include compliance with international law! The <C+ and the <C1R have succeeded in becoming effective supranational tribunals b loo/ing not to states per se but to their component institutions, using the lin/ to private parties granted them as supranational tribunals to penetrate the surface of the state Fwith decisions being made b G courts, ministries, and legislative committees competing and cooperating with one another as part of the normal domestic political process! (5BBL6 ==L) 1elfer and ,laughter, and man other scholars since, have generali:ed this approach to other international tribunals, see/ing to specif conditions under which the are effective! The process of e(ternali:ing and internali:ing norms can be anal :ed in three stages of a transnational legal process6 access, ad>udication, and implementation (*eohane, 2oravcsi/, and ,laughter 7888)!

A. Access
The most critical d namic in vertical enforcement is not one state bringing pressure to bear on another, but private parties bringing pressure to bear on national governments! This re)uires institutional mechanisms whereb individuals and social groups can influence the agenda of international tribunals! These include individual petition, referral of cases b domestic courts, and, in criminal cases, independent

=B

prosecution! The /e is that the be independent of the polic ma/ers against whom pressure is brought to bear! If this is correct, we should e(pect to observe the following6 The lower the cost of access for indi(iduals and social grou!s with an incenti(e to use an international tribunal% the ore d"na ic !otential the s"ste has& This is confirmed b the stri/ing empirical correlation between breadth of individual access and the use, effectiveness, and d namism of international legal arrangements (Table 4!5)! Insert Table 4!5 about here The basic factors motivating access, and thus internali:ation, ma var ! In the <4, the have been largel economic! ,laughter and 2attli, followed b -eiler, 'lter, and others, argue that mobili:ation of interest groups with an interest in liberali:ation within a legal s stem that both grants them standing in domestic courts and offers domestic courts an incentive to recogni:e <uropean law was a precondition for <uropean legal integration! , stems of economic law enforcement with individual or administrative petition can be robust, even under conditions that ma seem unpropitious, as in the case of the 'ndean 3act ('lter and 1elfer 788B)! In the human rights area, similarl , underl ing trends, such as democrati:ation and the growth of civil societ , are the most important determinants of human rights performance, but international legal institutions can have a secondar impact! This impact is dependent on access in the form of individual petition (and, in criminal s stems, private prosecution)! 1uman rights arrangements without these institutional forms are far less d namic!

48

. Ad.udication
"or legali:ation, access is necessar but insufficient! International and domestic tribunals must also have incentives to ad>udicate cases in a wa consistent with the enforcement, internali:ation, and deepening of international norms! -ithout #autonomous domestic institutions committed to the rule of law and responsive to citi:en interests,% international norms are unli/el to be internali:ed! 'lthough the receptivit of domestic courts to international >urisprudence ma depend in part on a common cultural commitment to legal process per se, it depends more on the institutional independence of domestic actors and common substantive values, such as #individual rights and liberties in s stems where the individuals themselves are ultimatel sovereign% (1elfer and ,laughter 5BBL6 ==4)! In s stems where >udges are not independent, or where the divergence between the domestic and international normative s stems at sta/e in individual rulings is too high, domestic >udges will not have incentive to ma/e common cause with a supranational tribunal against the government! This re)uires that courts be relativel autonomous! If this is correct, we should observe that where the do estic !olit" has ele ents of a rule+of+law s"ste % granting autono " to /udges and legal ad/udicators% and where /udges !ossess s" !athetic (alues% international legal s"ste s will tend to function better& It also helps if international or domestic ad>udicators are competent, autonomous, and neutral, and the possess a manageable caseload, fact$finding capacit , high )ualit of legal reasoning, and an abilit to engage in >udicial networ/ing (1elfer and ,laughter 5BBL)!

45

Liberals h pothesi:e that the densit of #vertical% international legal commitments and overall legal cooperation tends to be highest among advanced industrial democracies! Ket, this is not to sa that democracies are, in all cases, more li/el to promote or adhere to international law! Instead, the relationship is subtle and contingentJand therefore the sub>ect of ongoing research! To be sure, democratic and interdependent <urope has emerged predictabl as the ma>or promoter of transnational legal norms in the world toda , with a regional densit of law higher than an where else! Ket, although the 4nited ,tates is a democratic, individualist, and rule$of$law countr at home, it ta/es an #e(ceptionalist% attitude toward international law! Mne liberal e(planation would be that 4!,! constitutional culture, deepl embedded over two centuries, embodies distinctive 4!,! values (e!g!, uni)ue conception of human rights, regulator st le, constitutional norms) that diverge significantl from the norms of advanced industrial democracies! These are bolstered b libertarian and social conservatives, an institutionali:ed >udiciar insufficientl powerful to overcome it, and a constitution uni)uel resistant to amendment and sub>ect to veto group obstruction (2oravcsi/ 7885, 788@)! Nondemocratic countries ma be more li/el to defend traditional state$to$state hori:ontal conceptions of international law, particularl those that privilege e(pansive notions of sovereignt ! In a substantial tier of industriali:ing nondemocratic countries, moreover, economic law en>o s some autonom , and this ma permit a vertical d namic b which a substantial bod of international economic law is #internali:ed% & even if such d namics are limited b the ever$present possibilit of discretionar state action!

47

C. I'#le'entation
1elfer and ,laughter argue that #the overall boundaries for FcourtsG are set b the political institutions of FregimesG, above all the member states!% If courts become too #teleological,% that is, if the adopt a mode of interpretation biased toward achieving further legal integration #too far too fast,% the member states ma not compl , or might even act #to curtail its >urisdiction or urge their national courts to disregard its >udgments,% or to #shift the composition of the Court% (1elfer and ,laughter 5BBL6 =54&5H)! This principle can be formulated as follows6 national go(ern ents ust ha(e interests that incenti(ize the to i !le ent the /udg ents of do estic courts% or at least not to def" the outright& The more effective courts are #those charged with policing modest deviations from a generall settled norm or modif ing a particular rule or set of rules incrementall % (1elfer and ,laughter 5BBL6 ==8) & a )ualit that is lin/ed both to interest$based politics and to pree(isting rule$of$law norms! 1elfer and ,laughter continue, #the lin/ between liberal democrac and effective supranational ad>udication% is #comple( and contingent, particularl at the margins% (5BBL6 ==4)! Recent studies confirm this close relationship between evolution of legal norms and national institutions and interests concerning compliance! In environmental cooperation, for e(ample, liberal states are more li/el than illiberal states to create and maintain structures for regulari:ed monitoring and implementation review that often enhance compliance (Raustiala and ;ictor 5BBH)! Mne stud of compliance with <uropean social and legal norms concludes that #the

4=

structure of domestic institutions seems to be /e in e(plaining variance in the mechanisms through which compliance occurs% (Chec/el 78886 =4)! The domestic political, administrative, and financial cost of compliance is a further constraint on the willingness of states to follow international legal norms! Raustiala and ,laughter (78876 @4@) stress that #FcGompliance with the International -haling Convention, for e(ample, which re)uires little action b most states, should be higher than compliance with man narcotics agreements, which re)uire pervasive and costl domestic regulation!% In the <uropean Court of 1uman Rights (<C1R), states almost uniforml implement legal >udgments in a strictl formal sense, but the wa in which the choose to do so substantivel & )uic/l or slowl , broadl or narrowl , b financial settlement or b implementing polic change & depends on the si:e of the sta/es and the government interest! -here a >udgment threatens a core state interest, implementation will tend to be ver narrow & limited, for e(ample, to granting compensation to a single plaintiff, rather than changing a polic (;on ,taden 788B)!

%. Critics of the Liberal Anal+sis of Tribunals

Liberal theorists such as 1elfer and ,laughter contend that international legal regimes more deepl internali:ed in societ often generate more effective compliance and more d namism over time than do conventional state$to$state legal arrangements! This argument is sometimes stated as a liberal ideal t pe and, perhaps as a result, the 1elfer$,laughter view of international tribunals has often been critici:ed for positing an unrealisticall linear relationship between #democrac % and the effectiveness and d namism of international law! The resulting debates have received much scholarl

44

attention, but the underl ing criti)ue seems misplaced! 's we have seen, liberal theor in fact predicts considerable variation in the effectiveness and d namism of international law, both among democracies and among autocracies, based on variation in domestic and transnational ideas, interests, and institutions & a finding that ma coe(ist with the observation that democracies are, as a whole, more law$ abiding! This liberal claim (properl understood) has been accepted b its critics, and their )ueries are best viewed as friendl amendments or e(tensions to liberal theor ! Neo$conservative critics, such as <ric 3osner and +ohn Koo, allege that liberal theor overestimates the e(tent of vertical internali:ation! (788@a,bC also 'lvare: 7885)! Ket, in fact, 3osner and Koo accept most of the liberal empirical argument! The concede that interest group pressures shape state interests in the promulgation and enforcement of international law! The ac/nowledge that vertical enforcement and evolutionar d namics sometimes occur & notabl in the significant areas of -TM enforcement and in promoting democratic peace (788@a)! The also accept that the <4 and the <C1R e(hibit more d namism than other legal s stems, though the see/ to e(clude <urope from consideration as an e(ceptional #political union%! Ket, e(cluding <urope paints an arbitrar and misleading picture of international law, not simpl because it eliminates over a )uarter of the global econom and a much greater proportion of global trade, investment, and law ma/ing, but also because <4 scholars do not view the institutions as an e(ceptional #federation,% but rather, as do 1elfer and ,laughter, as the most interdependent and uniforml democratic of continents (3osner and Koo 788@a6 @@)!

4@

3osner does insist, rightl , that dominant interest group coalitions lac/ #a commitment to international law% per se and thus ma oppose the promulgation and enforcement of international norms if the are inconsistent with social interests (3osner 788@)! 1e and liberals agree that liberal anal sis of international law re)uires underl ing theories to e(plain variation in social and state preferences across issues, countries, and time! 2ills and ,tephens ma/e a similar point, from an #<nglish school% perspective (788@6 5H), when the argue that
<DT it

is difficult to disagree with ,laughter?s argument that vertical (through

domestic courts) rather than hori:ontal (through international bodies) enforcement of rules of international law offers the greatest potential at present for an international rule of law! 1owever, ,laughter must confront the realit of domestic politics when it comes to the actual use of domestic courts or highl integrated international courts! Nowhere is this more apparent than from an anal sis of the failings of the 4nited ,tates and man other liberal states to accept or internali:e international human rights standards b allowing their enforcement in domestic courtsEF'Gt least part of the e(planation for the failure of vertical enforcement in this conte(t must derive from the actions of individuals and groups as political actors within democratic states! 3erhaps earl formulations of liberal theor were too dichotomous, but the theor , properl understood, is based on precisel the need to theori:e the state$societ foundations of the variation in the response of liberal states to international law! The

4I

fact that compliance re)uires such an anal sis seems an argument for, not against, the centralit of liberal theor ! 1arold *oh similarl critici:es liberals for e(aggerating the lin/ between democrac and the d namic success of international law! 1e presents himself as a #constructivist% and see/s to argue the contrar of the conservative case, namel that 1elfer and ,laughter underestimate the e(tent to which internali:ation ma occur in non$<uropean and especiall nondemocratic settings (*oh 5BBHC 'lvare: 7885)! Ket, *oh?s most important conclusions, too, dovetail with those of liberal theor ! "irst, his claim that some vertical enforcement can ta/e place in non$ democracies is consistent with liberal theor ! To present this fact as a criti)ue creates disagreement where none e(ists! 1elfer and ,laughter do maintain that democratic states are more li/el to establish d namic and successful vertical #supranational% ad>udication s stems, et, as we have seen, the do not view this relationship as dichotomous6 #Non$democracies ma have democratic impulses, embodied in specific institutionsC illiberal states ma have strong liberal leanings% (5BBL6 ==@)! "or e(ample, international economic law can be developed with a nondemocratic China, while even the most advanced democracies, such as the 4nited ,tates in human rights, have incentives to resist compliance with international norms, which is wh courts alwa s need be >urisprudentiall incremental and politicall cautious (1elfer and ,laughter 5BBL6 =54&5L)! ,econd, although *oh superficiall re>ects the importance of regime$t pe for domestic internali:ation, his view that internali:ation is promoted b stable, repeated

4L

interactions, the #legal% )ualit of norms, open transnational legal interaction, and a rich field of NAMs puts him on a slipper slope to recogni:ing its importance! 's +oel Trachtman observes, *oh?s simple claim that #repeated participation in the international legal process% leads to norm acceptance #is hardl theoreticall satisf ing% on its own because #repeated interaction with duplicit or hostilit would not necessaril change an one?s ideas, or their incentives to compl % or #necessaril overcome strong incentives to defect% (Trachtman 78586 5=)! In fact, this mechanism is li/el to function in the wa constructivists imagine onl under certain (liberal) preconditions, as *oh himself concedes6 #the structural attributes of liberal s stems undeniabl ma/e them more open to some /inds of internali:ation% (5BBH6 ILI)! Indeed, the )ualities *oh stressesJstable interaction, legalit , open interaction, and civil societ Jall depend on democratic institutions! -ithout transparenc , accountabilit , issue$advocac networ/s, and professional status, legal processes are unli/el to have a consistentl positive effect! 's *eohane observes, #FiGnstead of downpla ing the point, it would seem wiser to elaborate it% & something ,laughter and other liberals have done in wor/ on transnational networ/s and democratic institutions (5BBH6 L58)! Third, while *oh?s approving references to Thomas "ranc/, suggestive use of the term #internali:ation,% and self$identification as a #constructivist% seem to suggest that he holds a non$rationalist or #non$liberal% theor of international law, he does not in fact commit to the distinctive causal mechanisms of these theories, but rather to liberal ones! 4nli/e "ranc/, Aoodman, or others, he does not portra states

4H

as governed b #logics of appropriateness% drawn from habit, cognitive framing, ps cholog , deontological moralit , or standard operating procedures & and he avoids "ran/?s view that law$abiding states will necessaril be more law$abiding abroad simpl because the transfer legalistic habits of mind! Instead, li/e 1elfer and ,laughter, *oh believes that d namic legal cooperation is possible with semi$ democratic or nondemocratic states in selected areas primaril because states pragmaticall see/ to reali:e interests and ideals! Legal agreements are possible between China and the 4nited ,tates, for e(ample, because a measure of largel self$ interested institutional autonom has been granted to economic law, even when fundamental disagreement remains in other areas! These are )uintessentiall liberal processes of instrumental pursuit of specific material interests and ideals channeled through representative institutions! Mverall, *oh?s specific use of theoretical language from IR theor seems misplacedJa case of paradigms hindering understanding!

I,. Liberalis' as /or'ative Theor+- $overeignt+ and %e'ocrac+

'

Liberal theories of international law also have implications for the conceptual anal sis and normative evaluation of international law! Liberalism can help shape our understanding of specific legal concepts, even those that govern traditional interstate relations! 'n e(ample is the concept of national sovereignt & and related notions of #intervention,% #domestic >urisdiction,% and #legitimac !% "or liberals, sovereignt , li/e the state itself, is sociall embedded and constructed! Its meaning is thus fluid!

4B

-ithout re>ecting entirel the institutionalist view that sovereignt is a transaction$ cost&reducing means to simplif interstate interaction, the realist view that prevailing conceptions of sovereignt ma result from coercion, or the constructivist insight that the sovereignt norm ma gain strength from its legal form or habitual acceptance over time, liberals insist that the substantive meaning of the sovereignt norm varies greatl as a function of the domestic and transnational social conte(t! "rom a liberal perspective, nearl all unilateral or multilateral engagement with foreign governments involves some de facto #intervention% in domestic politics, since an international legal norm helps or hurts some individuals and social groups (,laughter and .ur/e$-hite 788I)! ,uch intervention ma benefit or disadvantage the e(isting domestic government and ruling coalition, particularl in nondemocratic states! <ven formall domestic activities not formall sub>ect to international law or generall viewed as foreign polic matters ma have a substantial impact on foreigners! Thus, for liberals, what remains #essentiall within the domestic >urisdiction of an state,% as 'rticle 7!L of the 4N Charter5 states, not onl varies with the social conte(t but is inherentl ambiguous! 's a result of this ambiguit , the state actions recogni:ed as sovereign prerogatives, or, conversel , sub>ect to international legal restraints, are sub>ect to constant negotiation and renegotiation b states in the international communit ! Norms about sovereignt var over time, and not alwa s simpl as a function of consent or power! In different eras, powerful states in the international communit have recogni:ed as consistent or inconsistent with sovereignt a changing set of

@8

activities on the high seas, domestic religious practices, conceptions of d nastic and national legitimac , regime t pes and political practices, and economic activities! 4nder the Concert of <urope, -ilson?s conception of self$determination, or modern human rights law and the doctrine of #responsibilit to protect,% governments have & for var ing reasons & collectivel decided to recogni:e private individuals, groups, and political movements against ruling governments (*rasner 5BBBC 3hilpott 7885C <vans and ,ahnoun 7887C 1aas 788H)! <ven in areas of human rights and economic law, where intervention into domestic practices are common toda , international tribunals must commonl decide how much respect (#margin of appreciation%) to accord domestic practices & a decision made not simpl (or even primaril ) on the basis of blac/$letter law, but on the basis of the underl ing legitimac en>o ed b different forms of domestic practices! These are accepted or re>ected, in the liberal view, based on their consistenc with the prevailing consensus about acceptable interests and ideals! Liberal theor also has implications for a normative evaluation of international law! Mne obvious pragmatic sense in which this is so has to do with practical polic implementation! Insofar is liberal theor is empiricall valid, it would be both prudent and normativel advisable (from a conse)uentialist perspective) to tailor international law to an accurate assessment of which laws are li/el to be viable, effective, and d namic, given underl ing social constraints! Mne important )uestion, for e(ample, is under what conditions to insist on strict adherence to ambitious goals, emplo ing direct state$to$state mechanisms to achieve them (such

@5

as international legal direction, reciprocit , coercive sanctions, and regime$changing intervention), and under what conditions to wor/ via state&societ relations to encourage favorable endogenous long$term social, economic and political change and the slower establishment of vertical enforcement mechanisms! In areas such as human rights, there can be a divergence between two uses of the term #liberal%6 what #liberal% political actors recommend, which is often the former, and what #liberal% IR theor views as more fundamental and enduring, which is generall the latter! -ithout a theor of the social foundations of law ma/ing and compliance, neither governments nor their critics are li/el to generate sound and humane polic recommendations! Ket, the normative implications of liberal theor go be ond recognition of e(isting pragmatic polic constraints! This would be to render it conservative and status )uo oriented, as some critics charge (2ills and ,tephens 788@)! In fact, liberal theor supports normative evaluation and criti)ue of e(isting international law! Mne such area is in problemati:ing the democratic legitimac of international lawJon which there is now a burgeoning scholarl interest! Liberal theor is centrall concerned with the )uestion of social representationC that is, with whose interests and ideals international law represents! Liberal theor , with its focus on the wa s in which international engagement alters domestic processes, suggests that the proper wa to pose this )uestion is not to as/ whether international institutions themselves are democratic, but whether domestic democratic processes are enhanced or degraded b participation in transnational legal

@7

processes (*eohane, 2acedo, and 2oravcsi/ 788B)! To be sure, >udging whether a s stem of social representation is fair and e)uitable re)uires a sophisticated set of normative standards from democratic theor to >udge them & about which different anal sts ma disagree (.uchanan 78846 5HC *eohane et al& 788B)! It also re)uires a valid understanding of the empirical functioning of domestic and international s stems of representation provided b liberal theor ! "or e(ample, pluralist, libertarian, deliberative, and social democratic critics ma differ in assessing the same pattern of facts (2oravcsi/ 7884)! ,till, most democratic theorists would accept certain conclusions that follow from liberal theor ! In general, recent liberal research challenges the notion, widespread among both conservative and radical critics, that multilateral institutions are presumptivel democrac $degrading because the are more distant and insulated from individuals and groups in civil societ than are domestic institutions! This threat is generall less significant than man fear it to be! Mne reason to be less concerned about a global #democratic deficit% is that, from a liberal perspective, the center of gravit of legal commitment remains largel domestic! International legal norms change the legal and polic processes, but the remain essentiall domestic! In the final anal sis, decisions to enact, enforce, and e(tend legal norms remain sub>ect to whatever domestic constitutional provisions states see fit to impose! 's a practical matter, enforcement of nearl all international norms remains at home!

@=

'nother reason to be relativel sanguine about the effect of international law on domestic democrac is that the proper #applied% standard & if we use prevailing domestic practices to >udge international commitments & would not be the pure ma>oritarian norm adopted b man critics, but a #constitutional democratic% standard! 'll modern democratic s stems are based on comple( s stems of domestic constitutional delegationC most acts of international legal delegation are no different in /ind & and not necessaril an less sub>ect to public control & than these (Aoldsmith and Levinson 788BC *eohane et al& 788B)! .oth t pes of institutional commitment are designed to permit peoples and their leaders to achieve political goals the would not otherwise be able to achieve b managing the impact of interdependence! "rom this perspective, international law might be viewed b national publics as sovereignt $enhancing! 3eoples ought to maintain the right to enter into such arrangements, >ust as the retain the right to enter into constitutional arrangements (Cha es and Cha es 5BB=, 5BBH)! "rom a liberal perspective, moreover, such interstate e(changes of democratic authorit are essential polic $ma/ing instruments in an interdependent world, where citi:ens of one nation, in e(change for committing to limit domestic discretion in areas that affect other nations, secures the pre$commitment of foreign counterparts to adopt particular policies in areas that affect them & policies over which the otherwise would have no control! In essence, this bargain does not necessaril differ from the bargain struc/ among citi:ens in a domestic constitutional polit , who

@4

precommit to particular policies to secure the commitment of others within an interdependent societ (.eit: 5BLBC Aoldsmith and Levinson 788B)! Ket another reason to be suspicious of conservative critics of multilateralism is that there is no reason to assume, as man do, that pree(isting domestic democratic institutions are themselves ideal! 'll national political and social s stems are unfair in one or more wa s, and domestic institutions as modified b international law ma better reali:e democratic ideals than would autonomous domestic ones (*eohane et al! 788B)! This is most obvious when international legal regimes are e(plicitl designed to promote democrac , but this ma also occur in other wa s (2ansfield and 3evehouse 788I)! <ven where international legal commitments do undermine ever da domestic ma>oritarian control over polic , perhaps b virtue of the more diffuse, distant, insulated, or technocratic nature of multilateral processes or the absence of domestic deliberation over foreign polic issues, this need not mean that the debase domestic democrac ! Rather, we should >udge involvement in international legal institutions b the same standards that are used in ever da domestic constitutional practice! In modern democracies, well$functioning constitutional institutions are not simpl designed to ma(imi:e popular control over individual issues & nor is it normativel advisable that the do so (2oravcsi/ 7884C *eohane et al! 788B)! Instead, ma>oritarian control is balanced against other essential democratic virtues, including the defense of individual and minorit rights, the suppression of powerful special$interest factions, and the improvement in the epistemic )ualit of domestic

@@

deliberation via new information and ideas! In areas such as foreign trade, central ban/ing, human rights protection, and pharmaceutical regulation, democracies normall delegate to insulated e(perts! International cooperation seems to consist disproportionatel of such issues, whereas issue that inspire the most broad and active popular engagement & such as fiscal polic , social welfare provision, medical care, pension reform, education, local infrastructure, third$countr immigration, and such & tend to remain largel national! ,till, there ma well be areas & <uropean monetar integration is possibl one & where international bodies en>o an autonom that e(ceeds the norm in most domestic democratic s stems, without an clear technocratic or normative >ustification! In such cases, liberal theor treats current international legal institutions as presumptivel lac/ing in democratic legitimac (2oravcsi/ 7884)! <ven if one concludes that certain international legal practices are democraticall legitimate initiall upon delegation, it might be ob>ected that legal s stems can develop a life of their own that can eventuall escape democratic control! 'lthough this ma occur in some cases, we have seen & based on trade and human rights & that endogenous legal processes of this /ind generall seem to have a much less significant effect on the evolution of substantive polic ma/ing than do e(ogenous factors! Mne reason is, as we have seen in liberal anal ses of tribunals, is that access, ad>udication, and implementation remain closel bound up with domestic politics! This ma/es it difficult to argue that autonomous evolution of legal s stems generall traps national publics into entirel une(pected and unwelcome substantive

@I

outcomes & even if individual cases ma sometimes diverge from the norm! This is good news for those who believe that international law rests on a firm basis of consent! The fate of the <uro is putting this proposition to the test! There is much more wor/ to be done in assessing the democratic legitimac of specific international legal arrangements, and debates must be conducted between those with different normative starting points! It is clear, however, that estimating the impact of specific international legal institutions on domestic democratic practice & assessed in terms of popular control, the )ualit of deliberation, individual and minorit rights, and suppression of special interests & re)uires the t pe of detailed empirical anal sis of the real$world behavior of domestic social interests and representative institutions that liberal theor offers!

'

References
International Law,% 0ni(ersit" of Illinois Law Re(iew, No! 5, pp! @&4I!

'bbott, *enneth -! (788H)! #<nriching Rational Choice Institutionalism for the ,tud of

'lter, *aren +! (5BBH)! #<(plaining National Court 'cceptance of <uropean Court +urisprudence6 ' Critical <valuation of Theories of Legal Integration,% in 'nne$ 2arie ,laughter, 'lec ,tone ,weet, and +oseph 1! 1! -eiler (eds!), The .uro!ean Court 1 2ational Courts: Doctrine and 3uris!rudence (<vanston, IL6 Northwestern 4niversit 3ress), pp! 77L&@7! QQQQQ QQ (788I)! #3rivate Litigants and the New International Courts,% Co !arati(e Political Studies, ;ol! =B, No! 5, pp! 77&4B! QQQQQ QQ (788H)! #0elegating to International Courts6 ,elf$.inding vs! Mther$.inding 0elegation,% Law and Conte !orar" Proble s, ;ol! L5, No! 5, pp! =L&LI!

@L

'lter, *aren +!, and Laurence R! 1elfer (788B)! #The 'ndean Tribunal of +ustice and its Interlocutors6 4nderstanding 3reliminar Reference 3atterns in the 'ndean Communit ,% 2ew 4ork 0ni(ersit" 3ournal of International Law 1 Politics, ;ol! 45, No! 4, pp! HL5&B=8! 'lter, *aren +! and ,ophie 2eunier (788B)! #The 3olitics of Regime Comple(it ,% Pers!ecti(es on Politics% ;ol! L, No! 5, pp! 5=$74! 'lvare:, +osR <! (7885)! #0o Liberal ,tates .ehave .etter9 ' Criti)ue of ,laughter?s Liberal Theor ,% .uro!ean 3ournal of International Law, ;ol! 57, No! 7, pp! 5H=&74I! .aile , 2ichael '!, +udith Aoldstein, and .arr R! -eingast (5BBL)! #The Institutional Roots of 'merican Trade 3olic 6 3olitics, Coalitions, and International Trade,% 5orld Politics, ;ol! 4B, No! =, pp! =8B&=H! .eit:, Charles R! (5BLB)! Political Theor" and International Relations (3rinceton, N+6 3rinceton 4niversit 3ress)! .envenisti, < al, and Aeorge W. 0owns (788B)! #National Courts, 0omestic 0emocrac , and the <volution of International Law,% .uro!ean 3ournal of International Law, ;ol! 78, No! 5, pp! @B&L7! .erman, 1arold +! (5BB@)! #-orld Law,% 6ordha International Law 3ournal, ;ol! 5H, No! @, pp! 5I5L&77! .rummer, Chris (7855)! #1ow International "inancial Law -or/s (and 1ow It 0oesn?t),% 7eorgetown Law 3ournal, ;ol! BB, No! 7, pp! 7@L&=7L! .uchanan, 'llen (7884)! 3ustice% Legiti ac"% and Self+Deter ination: Moral 6oundations for International Law (New Kor/6 M(ford 4niversit 3ress)! .urle , 'nne$2arie, and -alter 2attli (5BB=)! #<urope .efore the Court6 ' 3olitical Theor of Legal Integration,% International 8rganization, ;ol! 4L, No! 5, pp! 45&LI! Cha es, 'bram, and 'ntonia 1andler Cha es (5BB=)! #Mn Compliance,% International 8rganization, ;ol! 4L, No! 7, pp! 5L@&78@! QQQQQ 5BB@! The 2ew So(ereignt": Co !liance with International Regulator" Agree ents (Cambridge, 2'6 1arvard 4niversit 3ress)!

@H

Chec/el, +effre T! (7888)! #Compliance and 0omestic Institutions,% 3aper presented at 'nnual 2eeting (-ashington, 0C6 'merican 3olitical ,cience 'ssociation)! Conant, Lisa! (7857)! #-hose 'gents9 The Interpretation of International Law in National Courts,% in +effre L! 0unoff and 2ar/ '! 3ollac/ (eds!), International Law and International Relations: S"nthesizing Insights fro Interdisci!linar" Scholarshi! (New Kor/6 Cambridge 4niversit 3ress), pp! (($((! 0ai, Din uan (788@)! #-h Compl 9 The 0omestic Constituenc 2echanism,% International 8rganization, ;ol! @B, No! 7, pp! =I=&BH! 0avis, Christina L! (7884)! #International Institutions and Issue Lin/age6 .uilding ,upport for 'gricultural Trade Liberali:ation,% A erican Political Science Re(iew, ;ol! BH, No! 5, pp! 5@=&IB! 0avis, Christina L!, and ,arah .lodgett .ermeo (788B)! #-ho "iles9 0eveloping Countr 3articipation in A'TTN-TM 'd>udication,% The 3ournal of Politics, ;ol! L5, No! =, pp! 58==&4B! 0esbordes, Rodolphe, and +ulien ;auda (788L)! #The 3olitical Influence of "oreign "irms in 0eveloping Countries,% .cono ics 1 Politics, ;ol! 5B, No! =, pp! 475&@5! 0owns, Aeorge -!, and 0avid 2! Roc/e (5BB@)! 8!ti al I !erfection9 Do estic 0ncertaint" and Institutions in International Relations (3rinceton, N+6 3rinceton 4niversit 3ress)! 0re:ner, 0aniel -! (788L)! All Politics Is 7lobal: .$!laining International Regulator" Regi es (3rinceton, N+6 3rinceton 4niversit 3ress)! <vans, Aareth, and 2ohamed ,ahnoun (7887)! #The Responsibilit to 3rotect,% 6oreign Affairs, ;ol! H5, No! I, pp! BB&558! "ran/el, +effre '! (5BBL)! Regional Trading :locs in the 5orld .cono ic S"ste (-ashington, 0C6 Institute for International <conomics)! Ailligan, 2ichael +! (5BBLa)! . !owering .$!orters: Reci!rocit"% Delegation% and Collecti(e Action in A erican Trade Polic" ('nn 'rbor6 4niversit of 2ichigan 3ress)!

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QQQQQ (5BBLb)! #Lobb ing as a 3rivate Aood with Intra$Industr Trade,% International Studies ;uarterl", ;ol! 45, No! =, pp! 4@@&L4! Aoldsmith, +ac/, and 0ar l Levinson (788B)! #Law for ,tates6 International Law, Constitutional Law, 3ublic Law,% <ar(ard Law Re(iew, ;ol! 577, No! L, pp! 5LB5& HIH! Aoldsmith, +ac/ L!, and <ric '! 3osner (5BBB)! #' Theor of Customar International Law,% The 0ni(ersit" of Chicago Law Re(iew, ;ol! II, No! 4, pp! 555=&LL! &&&& (788@)! The Li its of International Law (New Kor/6 M(ford 4niversit 3ress)! Aoldstein, +udith, and Lisa L! 2artin (7888)! #Legali:ation, Trade Liberali:ation, and 0omestic 3olitics6 ' Cautionar Note,% International 8rganization, ;ol! @4, No! =, pp! I8=&=7! Aoodman, R an, and 0ere/ +in/s (7884)! #1ow to Influence ,tates6 ,ociali:ation and International 1uman Rights Law,% Duke Law 3ournal, ;ol! @4, No! =, pp! I75&L8=!
Arossman, A! and <! 1elpman! 5BB4! #3rotection for ,ale!% A erican .cono ic Re(iew H4(4)6 H==$ H@8!

Arotto, 'ndrew +! (788H)! #-hat 0rives ,tates to ,upport New Nonproliferation Mbligations9 'n <mpirical and Theoretical <(ploration,% 0iscussion paper for6 International Implications for and Levers on 4!,! Nuclear -eapons 3olic , 4!,! Nuclear 3olic Review 3ro>ect, The ,tanle "oundation (-ashington, 0C6 1enr L! ,timson Center)! 1aas, 2ichael (788H)! International <u an Rights: A Co !rehensi(e Introduction, 5st ed! (New Kor/6 Routledge)! 1aas, 3eter 2! (5BHB)! #0o Regimes 2atter9 <pistemic Communities and 2editerranean 3ollution Control,% International 8rganization, ;ol! 4=, No! =, pp! =LL&48=! 1afner$.urton, <milie (forthcoming)! #International 1uman Rights Regimes,% Annual Re(iew of Political Science, ;ol! 5@, pp! =!5&=!77! 1athawa , Mona '! (5BBH)! #3ositive "eedbac/6 The Impact of Trade Liberali:ation on Industr 0emands for 3rotection,% International 8rganization, ;ol! @7, No! =, pp! @L@&I57!

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QQQQQ (788L)! #-h 0o Countries Commit to 1uman Rights Treaties9,% The 3ournal of Conflict Resolution, ;ol! @5, No! 4, pp! @HH&I75! 1elfer, Laurence R!, and 'nne$2arie ,laughter (5BBL)! #Toward a Theor of <ffective ,upranational 'd>udication,% 4ale Law 3ournal, ;ol! 58L, No! 7, pp! 7L=&H7! 1elleiner, <ric, ,tefano 3agliari, and 1ubert Oimmermann (7858) (eds!)! 7lobal 6inance in Crisis: The Politics of International Regulator" Change, 5st ed! (New Kor/6 Routledge)! 1isco(, 2ichael +! (7887)! #Commerce, Coalitions, and "actor 2obilit 6 <vidence from Congressional ;otes on Trade Legislation,% A erican Political Science Re(iew, ;ol! BI, No! =, pp! @B=&I8H! 1itchcoc/, -illiam I! (7884)! The Struggle for .uro!e: The Turbulent <istor" of a Di(ided Continent% =>?@+Present (New Kor/6 'nchor .oo/s)! 1 mans, +ac)ues <! C! (788I)! #Theories of Nuclear 3roliferation6 The ,tate of the "ield,% The 2on!roliferation Re(iew, ;ol! 5=, No! =, pp! 4@@&I@! *ahler, 2iles (5BBB)! #<volution, Choice, and International Change,% in 0avid ' La/e and Robert 3owell (eds!), Strategic Choice and International Relations (3rinceton, N!+6 3rinceton 4niversit 3ress), pp! 5I@&BI! *ec/, 2argaret and *athr n ,i//in/ (5BBH)! Activists beyond Borders: Advocacy Networks in International Politics 0Ithaca1 /2- Cornell Universit+ )ress3 *eohane, Robert M! (5BH7)! #The 0emand for International Regimes,% International 8rganization, ;ol! =I, No! 7, pp! =7@&@@! QQQQQ (5BH4)! After <ege on": Coo!eration and Discord in the 5orld Political .cono " (3rinceton, N+6 3rinceton 4niversit 3ress)! QQQQQ (5BBH)! #-hen 0oes International Law Come 1ome9,% <ouston Law Re(iew, ;ol! =@, No! =, pp! IBB&L5=! *eohane, Robert M!, ,tephen 2acedo, and 'ndrew 2oravcsi/ (788B)! #0emocrac $ <nhancing 2ultilateralism,% International 8rganization, ;ol! I=, No! 5, pp! 5&=5!

I5

*eohane, Robert M!, 'ndrew 2oravcsi/, and 'nne$2arie ,laughter (7888)! #Legali:ed 0ispute Resolution6 Interstate and Transnational,% International 8rganization, ;ol! @4, No! =, pp! 4@L&HH! *eohane, Robert M!, and +oseph ,! N e (5BLL)! Power and Interde!endence: 5orld Politics in Transition (.oston, 2'6 Little, .rown and Compan )! *eohane, Robert M!, and 0avid A! ;ictor (7855)! #The Regime Comple( for Climate Change,% Pers!ecti(es on Politics, ;ol! B, No! 5, pp! L&7=! *issinger, 1enr (5BB@)! Di!lo ac" (New Kor/6 ,imon S ,chuster)! *leine, 2arei/e (7855)! #2a/ing Cooperation -or/6 Informal Rules and "le(ibilit in the <uropean 4nion,% 3aper for presentation at the -or/shop #Institutional 0 namics in -orld 3olitics% (.erlin6 -issenschafts:entrum .erlin)! *oh, 1arold 1ong>u (5BBH)! #.ringing International Law 1ome,% <ouston Law Re(iew, ;ol! =@, No! =, pp! I7=&H5! *oremenos, .arbara (7887)! #Can Cooperation ,urvive Changes in .argaining 3ower9 The Case of Coffee,% 3ournal of Legal Studies, ;ol! =5, No! ,5, pp! ,7@B&H=! QQQQQ (788@)! #Contracting around International 4ncertaint ,% A erican Political Science Re(iew, ;ol! BB, No! 4, pp! @4B&I@! *rasner, ,tephen 0! (5BB5)! #Alobal Communications and National 3ower6 Life on the 3areto "rontier,% 5orld Politics, ;ol! 4=, No! =, pp! ==I&II! QQQQQ (5BBB)! So(ereignt": 8rganized <"!ocris" (3rinceton, N+6 3rinceton 4niversit 3ress)! *u, Charlotte (7885)! 7lobal 7o(ernance and the Changing 6ace of International Law ! 'C4N, Reports and 3apers No! 7 (3uebla6 'cademic Council on the 4nited Nations , stem)! La/e, 0avid '!, and Robert 3owell (5BBB) (eds!)! Strategic Choice and International Relations (3rinceton, N+6 3rinceton 4niversit 3ress)! Landman, Todd (788@)! Protecting <u an Rights: A Co !arati(e Stud" (-ashington, 0C6 Aeorgetown 4niversit 3ress)!

I7

Legro, +effre -! (5BBL)! #-hich Norms 2atter9 Revisiting the Tfailure? of Internationalism,% International 8rganization, ;ol! @5, No! 5, pp! =5&I=! 2ansfield, <dward 0!, and +on C! 3evehouse (788I) #0emocrati:ation and International Mrgani:ations,% International 8rganization, ;ol! I8, No! 5, pp! 5=L&IL! 2artin, Lisa! UInterests, 3ower, and 2ultilateralism,U International 8rganization 4I, no! 4 ('utumn 5BB7), pp! LI@$B7! 2ills, 'le(, and Tim ,tephens (788@)! #Challenging the Role of +udges in ,laughter?s Liberal Theor of International Law,% Leiden 3ournal of International Law, ;ol! 5H, No! 5, pp! 5&=8! 2ilner, 1elen ;! (5BBL)! Interests% Institutions% and Infor ation: Do estic Politics and International Relations (3rinceton, N+6 3rinceton 4niversit 3ress)! 2ilner, 1elen ;!, and Robert M! *eohane (5BBI)! #Internationali:ation and 0omestic 3olitics6 'n Introduction,% in Robert M! *eohane and 1elen ;! 2ilner (eds!), Internationalization and Do estic Politics (New Kor/6 Cambridge 4niversit 3ress), pp! =&74! 2oravcsi/, 'ndrew (5BB4)! #-h the <uropean 4nion ,trengthens the ,tate6 0omestic 3olitics and International Institutions,% -or/ing 3aper No! @7 (Cambridge, 2'6 1arvard 4niversit , Center for <uropean ,tudies)! QQQQQ (5BB@)! #<(plaining International 1uman Rights Regimes6 Liberal Theor and -estern <urope,% .uro!ean 3ournal of International Relations, ;ol! 5, No! 7, pp! 5@L&HB! QQQQQ (5BBL)! #Ta/ing 3references ,eriousl 6 ' Liberal Theor of International 3olitics,% International 8rganization, ;ol! @5, No! 4, pp! @5=&@=! QQQQQ (5BBH)! The Choice for .uro!e: Social Pur!ose and State Power fro Messina to Maastricht (Ithaca, NK6 Cornell 4niversit 3ress)! QQQQQ (7888)! #The Mrigins of 1uman Rights Regimes6 0emocratic 0elegation in 3ostwar <urope,% International 8rganization, ;ol! @4, No! 7, pp! 75L&@7! QQQQQ (7885)! #The New 'bolitionism6 -h 0oes the 4!,! 3ractice the 0eath 3enalt -hile <urope 0oes Not9,% .uro!ean Studies 2ewsletter, ;ol! 4, No! 5!

I=

QQQQQ (7887)! #In 0efense of the T0emocratic 0eficit?6 Reassessing Legitimac in the <uropean 4nion,% 3ournal of Co on Market Studies, ;ol! 48, No! 4, pp! I8=&74!

QQQQQ (7884)! #Is There a T0emocratic 0eficit? in -orld 3olitics9 ' "ramewor/ for 'nal sis,% 7o(ern ent and 8!!osition, ;ol! =B, No! 7, pp! ==I&I=! QQQQQ (788@)! #The 3arado( of 4!,! 1uman Rights 3olic ,% in 2ichael Ignatieff (ed!), A erican .$ce!tionalis and <u an Rights (3rinceton, N+6 3rinceton 4niversit 3ress), pp! 54L&BL! 3elc, *r: s:tof +! (788B)! #,ee/ing <scape6 The 4se of <scape Clauses in International Trade 'greements,% International Studies ;uarterl", ;ol! @=, No! 7, pp! =4B&IH! 3hilpott, 0aniel (7885)! Re(olutions in So(ereignt": <ow Ideas Sha!ed Modern International Relations (3rinceton, N+6 3rinceton 4niversit 3ress)! 3osner, <ric '! (788@)! #International Law and the 0isaggregated ,tate,% 6lorida State 0ni(ersit" Law Re(iew, ;ol! =7, No! =, pp! LBL&H47! 3osner, <ric '!, and +ohn C! Koo (788@a)! #+udicial Independence in International Tribunals,% California Law Re(iew, ;ol! B=, No! 5, pp! 5&L4! QQQQQ (788@b)! #Repl to 1elfer and ,laughter,% California Law Re(iew, ;ol! B=, No! =, pp! B@L&L=! 3utnam, Robert 0! (5BHH)! #0iplomac and 0omestic 3olitics,% International 8rganization, ;ol! 47, No! =, pp! 47L&I8! Raustiala, *al (7887)! #The 'rchitecture of International Cooperation6 Transgovernmental Networ/s and the "uture of International Law,% Airginia 3ournal of International Law, ;ol! 4=, No! 5, pp! 5&B7! Raustiala, *al, and 'nne$2arie ,laughter (7887)! #International Law, International Relations and Compliance,% in -alter Carlsnaes, Thomas Risse, and .eth '! ,immons (eds!), <andbook of International Relations (London6 ,age 3ublications, Ltd!), pp! @=H&@L! Raustiala, *al, and 0avid A! ;ictor (5BBH)! #Conclusions,% in 0avid A! ;ictor, *al Raustiala, and <ugene .! ,/olni/off (eds!), The I !le entation and .ffecti(eness of

I4

International .n(iron ental Co

it ents: Theor" and Practice (Cambridge, 2'6

International Institute for 'pplied , stems 'nal sis), pp! I@B&L8H! Risse, Thomas, and *athr n ,i//in/ (5BBB)! #The ,ociali:ation of International 1uman Rights Norms into 0omestic 3ractice6 Introduction,% in Thomas Risse, ,teve C! Ropp, and *athr n ,i//in/ (eds!), The Power of <u an Rights: International 2or s and Do estic Change (Cambridge6 Cambridge 4niversit 3ress), pp! 5&=H! Robins, 3hilip (788L)! #Tur/ish "oreign 3olic since 78876 .etween ' T3ost$Islamist? Aovernment and a *emalist ,tate,% International Affairs, ;ol! H=, No! 7, pp! 7HB& =84! Rosendorff, .! 3eter, and 1elen ;! 2ilner (7885)! #The Mptimal 0esign of International Trade Institutions6 4ncertaint and <scape,% International 8rganization, ;ol! @@, No! 4, pp! H7B&@L! Ruggie, +ohn Aerard (5BH7)! #International Regimes, Transactions, and Change6 <mbedded Liberalism in the 3ostwar <conomic Mrder,% International 8rganization, ;ol! =I, No! 7, pp! =LB&45@! ,agan, ,cott 0! (7855)! #The Causes of Nuclear -eapons 3roliferation,% Annual Re(iew of Political Science, ;ol! 54, pp! 77@&44! ,i//in/, *athr n (7855)! The 3ustice Cascade: <ow <u an Rights Prosecutions Are Changing 5orld Politics (New Kor/6 -! -! Norton S Compan )! ,immons, .eth '! (7885)! #The International 3olitics of 1armoni:ation6 The Case of Capital 2ar/et Regulation,% International 8rganization, ;ol! @@, No! =, pp! @HB&I78! QQQQQ (788B)! Mobilizing for <u an Rights: International Law in Do estic Politics , (New Kor/6 Cambridge 4niversit 3ress)! ,inger, 0avid 'ndrew (788L)! Regulating Ca!ital: Setting Standards for the International 6inancial S"ste (Ithaca, NK6 Cornell 4niversit 3ress)! ,laughter, 'nne$2arie (7888)! #+udicial Alobali:ation,% Airginia 3ournal of International Law, ;ol! 48, No! 4, pp! 558=&74! QQQQQ (7884)! A 2ew 5orld 8rder (3rinceton, N+6 3rinceton 4niversit 3ress)!

I@

,laughter, 'nne$2arie, and -illiam .ur/e$-hite (788I)! #The "uture of International Law Is 0omestic (or, The <uropean -a of Law),% <ar(ard International Law 3ournal, ;ol! 4L, No! 7, pp! =7L&@7! ,laughter$.urle , 'nne$2arie (5BB=)! #New 0irections in Legal Research on the <uropean Communit ,% 3ournal of Co on Market Studies, ;ol! =5, No! =, pp! =B5& 488!,tone ,weet, 'lec (7888)! 7o(erning with 3udges: Constitutional Politics in .uro!e (New Kor/6 M(ford 4niversit 3ress)! ,tone ,weet, 'lec, and -a ne ,andholt: (5BBL)! #<uropean Integration and ,upranational Aovernance,% 3ournal of .uro!ean Public Polic", ;ol! 4, No! =, pp! 7BL&=5L! , /es, 'lan M! (5BB5)! #3rotectionism as a T,afeguard?6 ' 3ositive 'nal sis of the A'TT T<scape Clause? with Normative ,peculations,% The 0ni(ersit" of Chicago Law Re(iew, ;ol! @H, No! 5, pp! 7@@&=8@! Tocci, Nathalie (788@)! #<uropeani:ation in Tur/e 6 Trigger or 'nchor for Reform9,% South .uro!ean Societ" and Politics, ;ol! 58, No! 5, pp! L=&H=! Trachtman, +oel 3! (7858)! #International Law and 0omestic 3olitical Coalitions6 The Arand Theor of Compliance with International Law,% Chicago 3ournal of International Law, ;ol! 55, No! 5, pp! 57L&@H! ;oeten, <ri/ (788@)! #The 3olitical Mrigins of the 4N ,ecurit Council?s 'bilit to Legitimi:e the 4se of "orce,% International 8rganization, ;ol! @B, No! =, pp! @7L& @L! ;on ,taden, 'ndreas (788B)! Sha!ing <u an Rights Polic" in Liberal De ocracies: Assessing and .$!laining Co !liance with the 3udge ents of the .uro!ean Court of <u an Rights, 3rinceton 4niversit , 3h!0! dissertation! -alt:, *enneth N! (5BLB)! Theor" of International Politics (New Kor/6 2cAraw$1ill)! -aters, 2elissa '! (788@)! #2ediating Norms and Identit 6 The Role of Transnational +udicial 0ialogue in Creating and <nforcing International Law,% 7eorgetown Law 3ournal, ;ol! B=, No! 7, pp! 4HL&@L4! QQQQQ (788L)! #Creeping 2onism6 The +udicial Trend Toward Interpretive Incorporation of 1uman Rights Treaties,% Colu bia Law Re(iew, ;ol! 58L, No! =, pp! I7H&L8@!

II

-eiler, +! 1! 1! (5BB5)! #The Transformation of <urope,% The 4ale Law 3ournal, ;ol! 588, No! H, pp! 748=&H=! QQQ (5BB4)! #' Vuiet Revolution6 The <uropean Court of +ustice and Its Interlocutors,% Co !arati(e Political Studies, ;ol! 7I, No! 4, pp! @58&=4! QQQQQ (5BBI)! #<uropean Neo$constitutionalism6 in ,earch of "oundations for the <uropean Constitutional Mrder,% Political Studies, ;ol! 44, No! =, pp! @5L&==! -endt, 'le(ander (5BBB)! Social Theor" of International Politics (New Kor/6 Cambridge 4niversit 3ress)!

IL

Table 4.( 'ccess Rules and 0oc/ets of International Courts and Tribunals

Level of access Low Mediu'

International court or tribunal 3C' IC+ A'TT -TM Mld <C1R

Average annual nu'ber of cases since founding 8!= 5!L 4!4 =8!@ 7=!@ 588!5

5igh

<C

<C, <uropean CourtC <C1RC <uropean Court on 1uman RightsC A'TT, Aenerali:ed 'greement on Tariffs and TradeC IC+, International Court of +usticeC 3C', 3ermanent Court of 'rbitrationC -TM, -orld Trade Mrgani:ation Source6 *eohane, 2oravcsi/, and ,laughter (78886 4L@)!

/ote

Charter of the 4nited Nations, 5 4!N!T!,! D;I (5B4@)!