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The Chapter deals with the economic analysis of customary international law. It aims to give an overview of the different approaches discussed in the literature and to highlight the virtues and the limits of social science analysis of customary international law. First, it discusses the formation of customary law and examines under which conditions customary norms evolve. The formation of customary international law is analysed from two perspectives. On the one hand, the Chapter takes a look at rational choice approaches explaining the formation of patterns of State conduct. On the other hand, it gives a brief introduction into the political economy of international judges, i.e. their strategies when identifying customary norms. Second, it addresses research on the effectiveness of customary international law, where it compares rational choice explanations with constructivist approaches.
A European Perspective
Edited by Alberta Fabbricotti
Compliance appears at first glance as a linchpin concept bridging international law and international relations and thus particularly fruitful to support the PEIL research agenda, mainly by highlighting the factors that trigger compliant behaviours or explain deviant ones, and by providing methodological tools to better grasp the causal relationship between a rule and a behaviour. This contribution is twofold. Firstly, it presents a short overview of the literature dealing with this topic, which aims at presenting the most popular ones within the interdisciplinary field. After taking stock of the diversity of these approaches, the second part of the Chapter identifies the main challenges PEIL research agenda has to confront in order to overcome the pending controversies and critics that could endanger its original ambition.
Anne van Aaken and Joel P. Trachtman
This Chapter attempts to highlight the existence of a veritable cornucopia of uncharted areas in a treaty’s ‘life-cycle’ where a strictly legal approach is not sufficient and where PE/IPE can yield valuable insight. The law of treaties will be examined mainly through the lens of IPE, and as an explanandum (dependent variable), while methodologically the analysis for the most part, will be conducted under the second column of Kantorowicz’s epistemological trilogy , i.e. Realwissenschaft (sociological perspective). In the Section, however, ‘Evolutive Interpretation’ due to the very nature of that analytical part the third column will also be used, i.e. Normwissenschaft (doctrinal perspective). The Chapter does not purport to provide a complete list of all IPE approaches and tools to explain law of treaties in toto. This field of PIL is so open-ended and allows for adoption of so many different approaches in the design and functioning of treaties that any such exhaustive attempt would be an exercise in futility. For this reason, the aim is to highlight the fact that there is a multitude of areas of the law of treaties which have not yet been the subject of IPE analysis and to pinpoint those where IPE considerations, approaches and tools may or are needed to come into play in order to understand the outcome. Consequently, the content of this Chapter has been structured following a ‘from cradle to grave’ approach and the following areas have been selected for their instructional value: i) non-State determination of the existence of a treaty ii) evolutive interpretation iii) Normative conflict and iv) termination of treaties.
Paul B. Stephan
This Chapter treats the design of judicial mechanisms (international courts, domestic courts, arbitral tribunals and the like) as variables that are intended to and do affect the output of these courts, particularly the scale and scope of claims about international law. It looks at the selection process for tribunal members, the terms of reference given to the tribunal, and the post-adjudication retention constraints on members, such as length of term and non-reappointment. To test this claim, the Chapter focuses on six case histories of instances where judicial mechanisms have diverged about the content of international law, in some instances within a single overarching case. The case histories both illustrate and are consistent with four conjectures about the effect of variation in design on the content of the product of international adjudication: national courts will demonstrate great variation; the responsiveness of international tribunals to State interests will reflect these design features; regional tribunals will reflect particular regional interests to a greater extent than will broad-based multilateral tribunals; and special purpose tribunals will tend to expand their jurisdiction, which is to say the scope of the claims they make about international law, to a greater extent than will broad-based multilateral tribunals.
Paul B. Stephan
This Chapter uses the history and function of the jus cogens concept in international law to demonstrate that its meaning and implication have varied in respond to particular sets of interests of significant international actors. The history reveals three incarnations of the concept: A claim about limits on the ability of sovereign States to enter into treaties that negate the essence of State sovereignty; a claim about limits on the formation of international law based on the fundamental interests of the States engaged in Cold War competition; and a claim about the existence of strong protection of human interests that exists independent of State consent. The principal argument of the Chapter is that the present, human-rights oriented conception of jus cogens is itself contingent and a reflection of the interests of persons who participate in the international legal system, especially non-State actors. The Chapter speculates about changes in the configuration of State interests that might produce new adaptions of the jus cogens concept, including doctrines and applications that would be fundamentally at odds with the current conception.
This Chapter re-elaborates under the lens of PE an IL argument already developed by the author and explaining the proliferation of Regional Trade Agreements in spite of and in conflict with the WTO rules (particularly art. XXIV GATT). According to this IL argument, such a widespread deviation from the WTO legal order testifies and confirms the existence of a customary rule consisting in a waiver benefiting the creation and operation of preferential bilateral and regional trade partnerships. From a PE perspective, such a non-written waiver (if using a legal language) corresponds to the usual dynamics of international trade, where the behaviour of States (and interest groups behind the scenes) is simply motivated by their preferences (which are multifaceted and not simply ascribable to economic and market bargain).