Anne Van Aaken (Univ. of St. Gallen - Law), Tom Ginsburg (Univ. of Illinois - Law), & Christoph Engel (Max Planck Institute for Research on Collective Goods), Public International Law and Economics Symposium Introduction. Here's the abstract:
It is a commonplace that we live in an era of increasing international interdependence, in which there has been a proliferation of international law and international organizations. Yet our understanding of the workings of international law has not kept pace. While we have a good deal of work on international law doctrine, our analytic tools are much weaker, and we are far from anything approaching a science of institutional design. We are therefore ill prepared to advise policy makers in the project of developing effective tools to solve transnational problems, and to provide global public goods. The contributions to this special issue, though they involve a wide range of different approaches and topics, share a commitment to using the core methodological assumptions of the rational choice approach in seeking to answer important question in International Law. The papers published in this issue were first presented at a conference at the Max-Planck Institute for Research on Collective Goods in Bonn, Germany in December 2006. In putting together the conference, we had two aims, one interdisciplinary and one intercultural. We wanted to contribute to the nascent law and economics of public international law. We noticed, however, that the use of the rational choice approach to international law has been largely confined to the United States, creating a methodological gap between European and American international law scholarship. We sought to generate a trans-Atlantic discussion not only about the substantive papers but on the appropriateness of the rational choice approach to international law.Svitlana Chernykh (Univ. of Illinois - Pol. Sci.), Tom Ginsburg (Univ. of Illinois - Law), & Zachary Elkins (Univ. of Illinois - Pol. Sci.), Commitment and Diffusion: How and Why National Constitutions Incorporate International Law. Here's the abstract:
This paper considers why it is that drafters of national constitutions incorporate international law, a phenomenon that is of growing importance. It argues that designers do so when they need to make credible commitments, and that international law has some unique features that render it attractive as a commitment device. The paper then considers an alternative hypothesis, namely that countries adopt such provisions as part of a process of diffusion, following other country's choices. The paper develops an empirical test of these hypotheses, and finds support for both, suggesting that commitment and diffusion operate in a complementary fashion.Anne Peters (Univ. of Basel - Law), Precommitment Theory Applied to International Law: Between Sovereignty and Triviality. Here's the abstract:
International agreements have been reconstructed as precommitments in the sense of giving up future choices to guard against preference shifts. This paper criticizes precommitment theory. First, the analogy between states and precommitments of individual persons is problematic. In reality, different governmental actors bind one another. Additionally, the flow of time brings about a change in the composition of the collective. Second, viewing treaties as an "epitome" of sovereignty necessarily implies that the "will" of the states, especially their will to bind themselves, is not only the (factual) reason why states enter into agreements in the first place, but also the (normative) reason why states should observe them. So the precommitment-paradigm serves as a savior of sovereignty. Third, legal obligations can not logically be explained as flowing from the unilateral choice to bind "oneself". If the "sovereign" decision matters, then it is hardly conceivable why the "sovereign" decision at time 1 is superior to the "sovereign" decision at time 2. International treaties can be more plausibly understood as commitments towards other actors. The bindingness of a legal instrument results from the promise given to the other party and the normative expectations created thereby in the other. Fourth, the idea of precommitment appears to inflate something which is the normal function of international law, namely to place some types of action beyond the control of domestic actors. But if all treaties are precommitments, the meaning of precommitment is expanded to the point of uselessness. Ultimately, international treaties should not be viewed as worthy of respect because they reflect actual and concrete (more or less rational) choices of the actors. Instead, public international law deserves respect because it is an indispensable functional device to uphold international relations.Andreas Zimmermann (Univ. of Kiel - Walter Schücking Institut), Is it Really All About Commitment and Diffusion? - Why Do States Incorporate International Law in Their Domestic Constitutions?. Here's the abstract:
The comment discusses the reasons for implementing international law obligations (of a customary or conventional character). The paper argues that any such implementation may not be explained (or, if ever, only partially) by the idea of precommitment. Rather, States have a genuine interest in the stability of the international legal system and their own adherence to rules of international law, the incorporation of which serves to avoid, as far as possible, committing violations of international law by rendering such violations unconstitutional or at least illegal under domestic law.