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Edited by Alberta Fabbricotti

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Alessandra Gianelli

The goal of the Chapter is to examine how the Political Economy (PE) analysis may help international lawyers in addressing and solving traditional issues they routinely confront, concerning the formation, existence, change, extinction, interpretation of Customary International Law. Because of the relevant role each interpreter – lawyers, government executives, municipal and International judges etc. – plays for these various purposes, customary law is an area where the approach/methodology applied may make a difference. The Chapter deals with each of the above mentioned issues, as well as with the notion of State as conceived in PE, to conclude that while PE can offer a valuable set of instruments for some issues, like the regime of erga omnes obligations or interpretation, in the end its overall contribution is limited. More particularly, PE does not appear to provide tools to anticipate when States are likely to commit breaches. Also, the notion of States in PE may not be directly relevant in international law, due to a precise choice by this system in identifying the entities accountable in law.

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Meredith Kolsky Lewis

This Chapter examines the prisoner’s dilemma in a variety of IL contexts. This study will reveal that IL can be viewed as explanandum in that a prisoner’s dilemma sometimes leads to the creation of IL. We will also see that IL can serve as explanans in the context of the prisoner’s dilemma, in that IL has consequences and effects for prisoner’s dilemmas while not always resolving them. The Chapter also identifies some limitations of the prisoner’s dilemma, in particular by highlighting examples of political economy factors that confound the assumptions inherent to a prisoner’s dilemma analysis.

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Alberta Fabbricotti

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Tobias A. Lehmann

This Chapter has argued that within international investment law, a non-unitary State perspective is preferable to a unitary State perspective. By proposing a ‘selectorate theory’ of State decision-making in the context of the conclusion of IIAs, this Chapter showed that a non-unitary State perspective: (i) can be tractable despite being less parsimonious, and therefore remain fairly easy to understand and to use by a wide audience; (ii) makes predictions about the overall evolution of developing countries’ IIAs that are empirically consistent; (iii) allows explaining certain State decision-making in the context of the conclusion of IIAs which a unitary State theory has a difficult time fully explaining (see the case studies of Brazil and South Africa); and (iv) makes it clear that the widespread competition-for-capital interpretation does not readily follow from the empirical finding that there exists a positive statistical association (i.e., statistically significant correlation) between the probability of a developing country signing (and arguably concluding) a BIT and the conclusion of BITs by its FDI-inflow competitors. Finally, this Chapter also showed that developing countries, even though they amounted to capital-importing institutions during the Twentieth Century (since they had virtually no existing foreign investments and little prospects of having such investments in the near future), need not have concluded IIAs to attract FDI inflows (and therewith further development), but may have done so solely to protect foreign investments.

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Eyal Benvenisti and Jan Wouters

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Daniela Vitiello and Marion Panizzon

International migration is a multifaceted phenomenon that has gained momentum in the international agenda as a fundamental public policy issue, such as global warming or the financial crisis. This Chapter aims at contributing to the literature on migration in a twofold manner: first, reviewing key PE theories regarding migration, in order to determine which combination of them could assure a better understanding of present migration dynamics; second, considering the suitability, efficiency and democracy of current instruments of global transaction over migration in light of new migratory trends and challenges.

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Laurence Boisson de Chazournes and Christina Leb

Expanding IPE analysis of benefit sharing arrangements to the area of international water law, this Chapter explains the determinants of international water law creation (law as explanandum) and traces the increasing influence of local and national political processes on the evolution of the international principles and norms of water law. Benefit sharing is the outcome of a process of realization that in a complex and interdependent world (i) there are fewer benefits that can be achieved by unilateral action than through cooperation; and (ii) that formulas to share the benefits of cooperative behavior need to be agreed upon to achieve equity that will spur continued cooperation. In international water law, the idea of benefit sharing is closely linked to the principle of equitable and reasonable utilization. Tracing the uptake of benefit sharing in treaty practice, the Chapter shows that the principle of equitable and reasonable use has evolved over time due to changes in the political economy, including in-country priorities concerning the use and management of transboundary water resources. Utilization for the economic means and ends of States has been complemented by management principles that increasingly take the interests of local stakeholders and individuals, as well as the environment, into account. This is the result of an increasingly deterministic role played by national actors in shaping the content of international water law.

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Ramses A. Wessel and Evisa Kica

This Chapter addresses the question why international actors would opt for more informal settings and output and what the consequences of this choice are in terms of elements that are traditionally perceived as being weak in traditional law, such as legitimacy and compliance. This question relates to the choice for a certain governance arrangement. As this is not a legal question per se, this Chapter uses insights offered by other disciplines to shed some more light on this choice. It will make an attempt to contribute to the debate by pointing to the choice of States (or other actors in the public sphere) to move from formal to informal international decision-making as well as to some consequences of this choice. What will be termed a ‘turn to informality’ will be first of all be approached theoretically by assessing reasons for actors to choose certain governance arrangements. Using a social science approach, these theoretical assumptions will then be assessed in the framework of a case study on the International Organization for Standardization (ISO) when dealing with the regulatory governance of nanotechnologies. This Chapter could also be seen as a plea for new approaches linking theoretical analysis and empirical studies in international institutional law. The turn to informality in the real world can only lead to an acceptance in international legal scholarship when empirical findings and insights from social sciences are taken on board.

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Ulyana Kohut

This Chapter tends to analyse the feasibility of a Political Economy (hereinafter PE) approach to a study of compliance with Human Rights treaties (hereinafter HR treaties). It considers the applicability of the principal theories of compliance with international law (hereinafter IL) specifically to international HR treaty-based obligations. This Chapter then considers the opportunities and shortcomings of applying the PE approach to the analysis of compliance with HR treaties. It concludes by arguing that there are limits to interdisciplinary studies of IL and of this particular subject matter in particular. While acknowledging some potential merits of a PE approach to the study of IL, this Chapter, however, argues that the model presented in the introductory Chapter of this Volume is not illustrative of any particular pattern with regard to compliance with HR treaties for several reasons: (i) not all the preconditions of the model have a significant effect on the compliance with HR treaties (e.g., while information and international law lobbies may contribute to such compliance, they have no decisive effect on a decision to comply with a particular treaty, whereas reciprocity is deemed not to have any – even though these factors may contribute to occasional compliance in a particular case, they do not constitute a compliance trigger as a rule); (ii) as any other social science model, this model fails to take into account the complexity of the international legal order and of the system of HR treaties in particular (appealing to (1) the importance of the content of HR treaty-norms – protection of fundamental humane values – in addition to the traditional normative value; and (2) differences between HR treaties in terms of substantive and procedural norms, specific protected values, monitoring and compliance bodies and mechanisms, suggesting the inappropriateness of any empirical survey of all HR treaties together); (iii) failure to comprise the nature of compliance with international HR treaties and distinguish between compliance with (1) procedural obligations, (2) substantive obligations, or (3) with the spirit of the treaty; (iv) failure to comprise the possibility of State action (including compliance behavior) in pursuit of the collective interest of humanity; (v) failure to take into account the continuously evolving and socializing nature of the international community and the effect of globalization processes on domestic decision-making. The conclusion reached in this Chapter is that while there are certain areas of IL that may benefit from economic and political science analysis, this tendency shall not be generalized to law’s every dimension. The PE approach seems to be a great intellectual exercise, which may identify certain legal problems, but it is unlikely to generate a comprehensive solution to the fundamental problems of law (domestic or international) and in particular of HR law. International PE and the PE approach may sometimes supplement legal scholarship (or legal reasoning), but may not be a substitute for traditional doctrinal normative analysis of law, and human rights treaty law is an illustrative example of that.