Stephan: Symmetry and Selectivity: What Happens in International Law When the World Changes

Paul B. Stephan (Univ. of Virginia - Law) has posted Symmetry and Selectivity: What Happens in International Law When the World Changes (Chicago Journal of International Law, forthcoming). Here's the abstract:

This article has a simple hypothesis: Selectivity in international law increases as international relations become more symmetrical. Conversely, international law becomes more universal as asymmetry grows. This relation holds true during the modern period. Its existence in turn supports the theoretical claim that the content of international law reflects the rational interests of those actors that make it.

Consider first international relations. A simple narrative, seriously incomplete but good enough for present purposes, would go something like this: From the end of World War II to the collapse of the Soviet empire a bipolar superpower competition dominated international relations. There followed a period of U.S. hegemony, but more recently significant Chinese, European, Indian and Russian challenges to the United States have complicated that structure. The details do not matter, neither the dates, nor the extent of U.S. hegemony when it existed, nor the number of the new great powers, nor the precise relative influence of each. What matters is that the basic structure of international relations underwent a transformation in the latter part of the twentieth century and now appears to have changed again.

Next consider competing trends in international law, that toward universality and that toward selectivity. Universal international law applies equally to all states. Selective international law means that states vary in what rights and obligations they recognize as well as how to allow them to be enforced. In the extreme case of selectivity the content of international law and its enforcement depends entirely on the identity of the state in question. If the recognition of international law reflects the rational interests of states, then international law should trend toward universality during times of hegemony and toward selectivity during periods of multipolar great power competition. Conversely, if international law does not conform to this pattern, then something other than the rational interest of states must explain its content. Much more is going on, of course, but this simple hypothesis suffices to ground an inquiry into the nature of international law as a creature of, and dependent on, international relations.

Developments in international law since World War II are consistent with the claim that selectivity increases as international relations become less asymmetrical.