Kenneth W. Abbott (Arizona State Univ. - Law), Enriching Rational Choice Institutionalism for the Study of International Law. Here's the abstract:
Anne Van Aaken (Univ. of St. Gallen - Law), Towards Behavioral International Law and Economics? Comment on Kenneth W. Abbott. Here's the abstract:
Over the past 20 years, the rational choice (RC) approach has produced a remarkable flowering of Institutionalist theory in International Relations (IR) and a substantial body of scholarship analyzing international law as a unique institution. Yet over the same two decades international governance has become far more complex than the Institutionalist model of interstate interactions, especially through the increasing influence of non-state actors and a growing array of hard and soft norms, organizations and policies. IR has evolved accordingly, with theorists focusing on multiple actors and sources of behavior.
This article continues an ongoing effort to enrich Institutionalist theory for explanation and prescription. The article is organized around important aspects of international law and governance: creating, ratifying and enforcing international rules; soft alternatives to international law; the interplay between international and domestic actors in international regimes; efforts by international institutions to enlist support from domestic publics and to strengthen the hands of supporters; and the growth of private norms for non-state actors. Drawing on relevant IR literatures and examples of innovative governance arrangements, the article suggests how scholars can incorporate into RC Institutionalism insights from Liberal IR theory, which emphasizes non-state actors and domestic politics, and, more tentatively, from Constructivist IR theory, which emphasizes social and subjective influences such as shared beliefs, norms, perceptions of legitimacy and identities.
This Comment on Kenneth Abbott discusses some of the difficulties of the reception of International Law and Economics in Europe from a methodologcial point of view. It focuses on two different questions: The first discussion is concerned with the relationship of social science and international law generally: if and where social science approaches may be relevant to legal analysis. The second discussion is concerned with the question, which social science paradigm is best suited to answer questions related to international law. A Behavioral Approach to International Law and Economics seems first more acceptable to European Scholars and second a very promising line of research.
Stefan Oeter (Univ. of Hamburg - Law), Toward a Richer Institutionalism for International Law and Policy. Here's the abstract:
International relations theory - and institutionalist strands of social science theory more in general - deliver a suitable analytical tool for analyzing the international legal system. But which is the IR theory that should inform lawyers? In a very rough, binary distinction, one might distinguish rationalist and constructivist theories. The rationalist schools of thought, which are rather divergent in its details, share at least one basic methodological assumption - they assume in its models individual and collective actors that are oriented towards a rational pattern of maximizing their own positions and gains. Constructivist models, on the other hand, do not that easily merge with rationalist schools. Not that constructivism denies the importance of rational calculus. It simply works with the phenomenon that real life patterns of social behaviour are not clinically rational, but that the rationality of real life actors is to a large degree dominated by context specific 'social constructions of reality'. All rational choice based theories construe patterns of social interactions in terms of typical model interactions. If we want to explain, however, why specific actors act in a specific way, support specific legal rules (or try to evade them), make use of certain arrangements, and not of others, a constructivist model is helpful. We should in particular devote increased attention to actor-centered processes of norm creation and diffusion that unfold before norms have been fully internalized, with the ensuing phenomena of 'strategic social construction', where persuasion, socialization and internalization play at least as much a role as coercion in the form of shaming and political pressure. Competition between short-term preferences and long-term collective interests also needs attention in an institutionalist perspective.
Jide Nzelibe (Northwestern - Law), The Case Against Reforming the WTO's Enforcement Mechanism. Here's the abstract:
This Essay states the public choice case against reforming the current WTO enforcement mechanism in which parties that prevail in an international trade dispute can retaliate against the scofflaw state by suspending equivalent trade concessions. Currently, there are two distinct kinds of proposals floating around to change this mechanism to make it more incentive-compatible for all member states and user-friendly to developing nations: The first is the use of collective or third party sanctions; and the second is the imposition of monetary compensation. This Essay argues that both of these proposed reform schemes introduce potential pathologies of their own that are likely to dwarf those of the current enforcement mechanism. First, it argues that under a collective or third party sanctions scheme, the administering third-party states will have no incentive to choose a retaliation strategy that maximizes compliance because they will not face any export group pressures to do so. Rather, such states will have an incentive to choose a retaliation strategy that maximizes the returns to their protectionist interest groups. In other words, collective or third party sanctions are likely to increase the global level of protectionism without any offsetting compliance benefits. Second, it argues that the costs associated with monetary damages - including the likelihood that it will lead to socially excessive levels of litigation - are likely to be higher than its putative benefits to developing countries. Finally, the Essay suggests that pro-reform advocates tend to rely on empirical assumptions that might overstate the extent to which the current enforcement scheme actually hurts the interests of developing states.
Christian Tietje (Martin Luther Univ. - Transnational Economic Law Research Centre), The WTO Sanctions Regime and International Constitutional Political Economy. Here's the abstract:
This comment on Jide Nzelibe's paper takes the view that the existing rationale of Art. 22 DSU is to a large extent not consistent with the structure of primary obligations of WTO law. WTO law is not simply a legal system based on export-oriented exchange of concessions. Thus, a simple export pressure group-oriented public choice analysis may not comprehensively explain the problems of Art. 22 DSU. Instead, it is necessary to apply a broader constitutional political economy approach which is outlined in this comment.
Hans-Ulrich Petersmann (European Univ. Institute - Law), Why Rational Choice Theory Requires a Multilevel Constitutional Approach to International Economic Law - The Case for Reforming the WTO's Enforcement Mechanism. Here's the abstract:
This contribution argues that power-oriented, intergovernmental approaches to international economic law problems (e.g. trade sanctions in response to WTO violations) may offer less efficient and legally less effective instruments than citizen-oriented approaches (e.g. private judicial remedies in domestic courts in response to certain WTO violations). Realism, liberalism, institutionalism and constitutionalism offer complementary rather than mutually exclusive analytical approaches and policy strategies. One-sidedly power-oriented international law doctrines (as applied by Prof. Nzelibe) may lead to wrong policy conclusions; from a constitutional perspective, for instance, there are strong arguments in favor of reforming the WTO's enforcement mechanisms so as to better protect consumer welfare and other general citizen interests in open markets and judicial protection of rule of law.
George Norman (Tufts Univ. - Economics) & Joel Trachtman (Tufts Univ. - Fletcher School of Law & Diplomacy), Measuring the Shadow of the Future: An Introduction to the Game Theory of Customary International Law. Here's the abstract:
This article develops a game-theoretic model of a multilateral prisoner's dilemma in the customary international law context showing that it is plausible that states would comply with customary international law under certain conditions. This model identifies the relevant parameters, which include the value of cooperation and whether the value rises or falls with the number of states involved, the patience of states, the frequency of interaction, and the types of other relationships between the relevant states. Some of these parameters are amenable to empirical observation, or to manipulation through institutional change.
Christoph Engel (Max Planck Institute for Research on Collective Goods), Governments in Dilemma. A Game Theoretic Model for the Conclusion of Bilateral Investment Treaties. Here's the abstract:
In the official rhetoric of industrialised countries, for developing countries the conclusion of a bilateral investment treaty is a win-win solution. Empirical work has cast doubt on this. Do developing countries only agree since, otherwise, all the capital is siphoned off to other developing countries who have given in to Western pressure? In game theoretic terms, this holds if developing countries, among themselves, face a prisoner's dilemma. Whether this is true depends on the distribution of payoffs. Those who decide on the conclusion of a treaty derive utility from the expected effect of foreign direct investment on political support within their respective countries. On plausible assumptions, the actors governing developing countries play a chicken game. In pure strategies, or if one country can go first, only the first country concludes a treaty, whereas the second mover abstains. This equilibrium is particularly likely if governments of developing countries do not hold symmetric preferences.
George Nolte (Wissenschaftskolleg zu Berlin), Public International Law and Economics Concluding Remarks. Here's the abstract:
The author reviews a number of contributions for the Bonn conference on Public International Law and Economics in the light of a supposed gap between US and European lawyers. Accepting in principle that this gap exists but finetuning it to a certain extent, the author finds that some of the economic contributions are more and some are less persuasive and capable of inducing doctrinally-oriented European lawyers to broaden their approaches.