Electronic copy available at: http://ssrn.com/abstract=2636844

Who Supports International Law, and Why?

The United States, the European Union, and International Law

Mark A. Pollack Professor and Jean Monnet Chair

Temple University Department of Political Science

461 Gladfelter Hall Philadelphia, PA 19122

E-mail: mark.pollack@temple.edu

7 July 2015 This is an extended first draft of a paper to appear in The International Journal of Constitutional Law, Vol. 13, No. 4, as the introduction to a symposium on the United States, the European Union, and international law. I am grateful to Daniel Abebe, Cindy Buys, Başak Çalı, Christina Davis, Gráinne de Búrca, Jeffrey Dunoff, Jappe Eckhardt, Manfred Elsig, Orfeo Fioretos, Martijn Groenleer, Duncan Hollis, Dan Kelemen, Tim Knievel, and an anonymous reader for comments on earlier drafts. The usual disclaimer applies.

Electronic copy available at: http://ssrn.com/abstract=2636844

 

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“Whether pressing for or against multilateral action, in the twentieth

century or the twenty-first, Americans generally tend to strike the world as

pushy, preachy, insensitive, self-righteous, and usually, anti-French.” –

Harold Honju Koh1

“The EU represents the aspiration for a world governed by law. This reflects

the nature of the EU, itself a community of law. And one way or another it is

the direction in which almost all our external policies point.” -- Robert

Cooper2

Over the past several decades, it has become commonplace in both scholarly and political

circles to contrast the positions of the United States (US) and the European Union (EU)

toward the rule of international law. Even before the presidency of George W. Bush and

the September 11th, 2001 terrorist attacks, critics argued that the US had abandoned its

post-war role as the champion of the international legal order, being instead characterized

at best by ambivalence toward legal constraints, and at worst as a “rogue nation.”3 By

contrast, the EU has increasingly presented itself and been seen as a “normative power,”

the most vigorous promoter of a strong international legal order.4 This stark contrast has,

in recent years, taken on the status of conventional wisdom, in the process creating

strange transatlantic bedfellows, including both liberal European scholars, for whom the

conventional wisdom provides a legitimating ideology for a nascent EU foreign policy

                                                                                                               1 Harold Hungju Koh, On American Exceptionalism, 55 STANFORD L. REV. 1479, 1481 (2003) 2 Robert Cooper, Response, in Charles Grant, IS EUROPE DOOMED TO FAIL AS A POWER? 29, 31 (2009) 3 See e.g. John F. Murphy, THE UNITED STATES AND THE RULE OF LAW IN INTERNATIONAL AFFAIRS (2004); Clyde V. Prestowitz, ROGUE NATION: AMERICAN UNILATERALISM AND THE FAILURE OF GOOD INTENTIONS (2004); and Philippe Sands, LAWLESS WORLD: THE WHISTLE-BLOWING ACCOUNT OF HOW BUSH AND BLAIR ARE TAKING THE LAW INTO THEIR OWN HANDS (2006). 4 See e.g. Ian Manners, Normative Power Europe: A Contradiction in Terms? 40 JOURNAL OF COMMON MARKET STUDIES, 235; Liesbeth Aggestam, Introduction: Ethical Power Europe? 84 INT’L AFFAIRS 1 (2008); Cooper, “Response,” supra note x; and José Manuel Durão Barroso, The European Union and Multilateral Global Governance, speech presented at the European University Institute, Florence, 18 June 2010, http://europa.eu/rapid/press-release_SPEECH-10-322_en.htm.

 

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and creates a rogue US “Other,”5 and American neoconservative commentators, who

proudly defend US defiance of international law they see as illegitimate.6

To what extent are these broad characterizations accurate? Has the US really

abandoned its commitment to international law – and if so, why? Has the EU really

taken up the mantle of the defender of the international legal order – and if so, why has it

not followed the US in chafing at the restraints of international law? The six articles in

this symposium address these questions, drawing upon a common theoretical framework

presented in this introduction. Such a framework, I suggest, needs to specify the nature

of two essential concepts that are often underspecified in the existing literature:

(a) the nature of any state’s7 support for, or ambivalence about, or hostility towards

international law (the dependent variable); and

(b) the factors – political and legal, domestic and international – that condition and

explain any state’s support for international law (the independent variables).

In this article, I propose a framework for conceptualizing these dependent and

independent variables – the nature and the causes of US and EU support for international

law. To be clear, what I offer here is not a theory of support for international law, but

rather a common, theoretically neutral framework to allow scholars to clarify the nature

of their claims and to compare and aggregate empirical findings from studies across

polities as well as across issue-areas and over time. This introduction is organized in four

parts, with the first disaggregating the dependent variable of “support” into four

dimensions – leadership, consent, compliance, and internalization – that are often

                                                                                                               5 See e.g. Ian Manners, “The Normative Ethics of the European Union,” 84 INT’L AFFAIRS 45, 60 (2008). 6 Jack L. Goldsmith and Eric A. Posner, THE LIMITS OF INTERNATIONAL LAW (2005); and Eric A. Posner, THE PERILS OF GLOBAL LEGALISM (2009). 7 Throughout this paper, I refer for convenience to “a state’s” commitment to international law; to be clear, however, I intend the proposed framework to be applicable as well to the hybrid polity of the EU.

 

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conflated in the popular literature. The second section similarly disaggregates four sets

of independent variables that may influence any given polity’s attitude toward

international law, namely international-political factors, international-legal factors,

domestic-political factors and domestic-legal or constitutional factors. The third section

introduces the five empirical articles in the symposium, which assess the record of US

and EU support for international human rights, criminal, trade, and environmental law, as

well as the internalization of international law in US and EU courts. The fourth section

concludes with preliminary findings about the nature and the causes of US and EU

support for international law.

Anticipating those findings here, the studies in this symposium partially confirm,

but also substantially nuance, the conventional wisdom about the nature of transatlantic

differences in attitudes toward international law, and the reasons for them. Beginning

with the dependent variable of “support,” our authors confirm a broad contrast between

the attitudes of the US and the EU towards international law, yet disaggregating support

into four dimensions reveals more fine-grained patterns on both sides the Atlantic.

Although the US is frequently depicted as a rogue state, the symposium reveals that the

primary US difficulties with international law arise with respect to consent (US failure to

sign or ratify important multilateral treaties) and internalization (US courts and Congress

reticent to give domestic legal force to international law). By contrast, US compliance

with its international legal commitments is generally high in the areas studied in this

symposium, while US leadership has been variable, high in some areas and absent in

others. Disaggregating EU support reveals similar nuances: while EU leadership has

indeed been important in the environment and human rights, it has been more variable in

other areas, and EU countries have in several instances been divided amongst themselves,

with both leaders and laggards in evidence. EU consent to and compliance with its treaty

commitments has indeed been impressive, but there is reason to question the image of an

EU as open to internalization of international law, given evidence that European courts

have increasingly sought to protect the autonomy of the EU legal order. In short, the

 

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conventional US/EU contrast is not baseless, but it is overly simplistic, concealing

important variation on both sides of the Atlantic.

Turning from the nature to the causes of variable US and EU support for

international law, we find that the roots of US/EU differences are complex and multi-

causal, defying any effort to reduce those differences to single, if easily graspable, factors

such as US hyper-power, American exceptionalism, or the EU’s purported normative

difference. In some areas, such as international criminal law, we find that US power and

“special responsibilities” are indeed significant in explaining transatlantic differences. In

most areas, however, domestic variables emerge as more significant in explaining US/EU

differences. Here, we find some evidence that broad differences in political culture play

a role, yet broad political culture and identity-based explanations tend to overpredict a

stark US/EU contrast, and fail to explain more fine-grained variations. Our authors

therefore focus primarily on other domestic factors, including partisan battles between

Democrats and Republicans in the US, as well as interest-group pressures on both sides

of the Atlantic. Finally, several of the studies find domestic constitutional structures,

including the extraordinarily demanding constitutional requirements for treaty ratification

in the US, to be important in explaining transnational differences in willingness to

consent to international legal commitments.

To be clear, the aim of this symposium is not revisionism for its own sake: the

contrasts between the US and the EU with respect to international law are real, and cry

out for explanation. Such explanations can only follow, however, from a fine-grained,

discriminating analysis of US and EU attitudes and actions across various dimensions and

issue-areas, and over time. Before proceeding, however, we must briefly confront what

one might call the “unit of analysis” problem, namely the fact that the unit of analysis on

one side of the Atlantic is a single nation-state, the United States, while on the other side

it is a collection of 28 member states that often do, but sometimes do not, coordinate their

foreign policies and their positions toward international law through EU institutions. As

we shall see, this difference in the unit of analysis matters, for three reasons. First, and

most obviously, the counterpart actor to the US on the European side varies by issue-

 

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area: in some cases, such as trade and increasingly environmental issues, the EU

negotiates and ratifies international legal agreements on behalf of its members; while in

other cases EU member states can and do act independently with respect to the

international legal order. Second, and following from this, the apparent contrast between

the US on the one hand and the EU on the other may be blurred, if and insofar as EU

member states disagree among themselves, and such instances require us to look past a

simple dichotomous approach to understand the nature and the sources of differences

within Europe as well as across the Atlantic. Third and finally, there is a material

difference between the US, which as a single state can often seem a striking outlier or

even pariah vis-à-vis a broader international community with which it disagrees, and the

EU, which at 28 constitutes a sizable voting bloc in international negotiations.8 These

caveats should not and will not prevent us from engaging the ubiquitous transatlantic

comparison and contrast in the literature, but they do suggest a note of caution and call

for the researcher to remain aware of the differences in the “nature of the beast” on either

side of the Atlantic.

I. The Dependent Variable: What is Support for International Law?

The dependent variable of this symposium, and of much of the literature on the

US, the EU and international law, is support for international law or for the international

legal order. Conceptualized as such, the concept of “support” goes beyond support for

any given treaty or rule, but constitutes, in principle, support for international law as a

process of making, interpreting and enforcing generalized legal norms and rules

regulating the conduct of states and increasingly of non-state actors.9 However, since

most states typically declare at least rhetorical support for the rule of law, it is extremely

difficult to measure a given state’s support for international law from its overt

                                                                                                               8 I am grateful to Duncan Hollis for this insight. 9 Alternatives to such a rule-based order might include arbitrary rule by great powers, or pure unilateralism unbound by any rules. I am grateful to Christina Davis for this insight.

 

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declarations, and most analysts fall back in practice on patterns of behavior toward

specific international legal agreements as a proxy for the broader, more abstract

concept.10

Such a move is understandable, yet it is problematic to equate a state’s support for

a single international agreement for its support for international law more broadly, for

two reasons. The first is the possibility of selection bias: a given state’s support for a

single treaty or other legal agreement may or may not be representative of its support for

international law more broadly. The second is that, as Rachel Brewster has argued,

“Treaties are policy outcomes as well as legal agreements.”11 In much of the existing

literature on the US and international law, failure to consent to, comply with, or

internalize a given international agreement is often presented as a sign of contempt for

international law per se. As Brewster’s comment implies, however, specific treaties do

not simply represent “international law” in the abstract; they also represent concrete,

contingent, and possibly unjust or unwise policy outcomes. At a minimum, therefore, if

we seek to generalize from support for given international agreements to support for

international law as a process or mode of governance, we should aim to assess such

support in the aggregate, analyzing and comparing a given state’s support for a wide

variety of international agreements across a variety of issue-areas, rather than cherry-

picking cases and falling prey to selection bias.

Even assuming that we can avoid the problem of selection bias, we still need to

establish and operationalize what we mean by “support.” Toward this end, the

framework put forward here disaggregates the concept of “support for international law”

into four distinct dimensions that are often conflated in the popular commentary:

leadership, consent, compliance, and internalization. Each of these has been put forward

in the literature as an indicator of support for international law, but each represents a

                                                                                                               10 Another possible proxy for state support for international law might be a state’s willingness to accept the compulsory jurisdiction of a court, tribunal, or other legalized dispute-settlement body, on the logic that doing so commits one to a legal process of dispute resolution, independent of specific policy outcomes. This assumes, however, that such international bodies are both independent and unbiased, which is a plausible assumption but by no means a given with respect to existing international courts and tribunals. 11 Rachel Brewster, Reputation in International Relations and International Law Theory, 524, 533, in Jeffrey L. Dunoff & Mark A. Pollack (eds.), INTERDISCIPLINARY PERSPECTIVES (2013).

 

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distinct type of support, each may be attributable to different factors, and empirically the

four dimensions of support may vary dramatically within as well as across polities, across

issue-areas, and over time. The four dimensions correspond roughly to stages in a given

state’s interaction with the international legal process. Let us consider each, very briefly,

in turn.

1. Leadership

The first dimension of support for international law is leadership, generally

understood as the willingness of a state to take an active role in the creation of new law,

either through the negotiation of new international treaties or through promotion of new

norms of customary law. Within international relations theory, leadership is often

associated with the practice of hegemonic actors, such as the role that the US played

following World War II, when it led the negotiation of a raft of new international legal

agreements, including the United Nations Charter, the Bretton Woods institutions, the

General Agreement on Tariffs and Trade, the NATO alliance, and many others.12

If we examine the recent literature on the US attitude toward international law, we

encounter a common charge that the US has withdrawn from its postwar leadership role,

acting not as a leader but as a laggard in the negotiation of international treaties.13 By

contrast, it is often argued that the mantle of leadership has passed to the EU in a number

of issue-areas such as the environment and climate change.14 While such leadership can

be important in the development of international law, leadership is clearly not required

for a state to be considered supportive of the rule of international law. Indeed, the

assertion of diplomatic leadership may represent not so much a commitment to

international law per se, but simply a vigorous effort to shape the content of international

                                                                                                               12 G. John Ikenberry, AFTER VICTORY: INSTITUTIONS, STRATEGIC RESTRAINT, AND THE REBUILDING OF ORDER AFTER MAJOR WARS (2001). 13 See e.g. Murphy, THE UNITED STATES, supra note x; Sands, LAWLESS WORLD, supra note x. 14 Much of this literature focuses specifically on the question of EU leadership in climate change and other environmental issues. See e.g. R. Daniel Kelemen & David Vogel, Trading Places: The Role of the United States and the European Union in International Environmental Politics, 43 COMPARATIVE POLITICAL STUDIES 427 (2009).

 

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law in line with one’s own substantive preferences. Furthermore, to state the obvious,

failure to provide leadership does not constitute a violation of international law.

2. Consent

A second dimension of support is consent to be bound by international rules, or

what political scientists sometimes refer to as commitment. That is, even in the absence

of leadership, a state may demonstrate a consistent willingness to be bound by the

provisions of international law, or conversely that same state may refuse to be bound, in

various ways. With respect to treaty law, the most obvious expression of consent is

signature and ratification of a treaty – or lack thereof. At the extreme, a state may refuse

to sign a given treaty, indicating that the executive of the state in question has no intent to

become a party to the agreement. Examples of such refusal in the US case include such

landmark agreements as the 1982 Law of the Sea Convention (LOSC) and the 1997 Land

Mines Treaty, which have been signed and ratified by 162 states (plus the EU) and by

159 states, respectively, but neither signed nor ratified by the US.

Alternatively, a state may sign a treaty, indicating an initial intent to be bound, but

subsequently fail to ratify the agreement. Examples from the US case are legion, cutting

across a variety of issue-areas including arms control (the SALT II accords, the

Comprehensive Test Ban Treaty), humanitarian law (Protocols I and II to the Geneva

Conventions), criminal law (the Rome Statute of the International Criminal Court),

environmental law (the Kyoto Protocol, and many others), human rights law (the

Convention on the Rights of Persons with Disabilities, and many others), trade law (the

International Trade Organization), and other agreements such as the Vienna Convention

on the Law of Treaties (VCLT).

Looking more broadly at the ratification behavior of multiple states, Elsig et al.

have demonstrated that states vary dramatically in their willingness to ratify multilateral

treaties negotiated since the end of the Cold War. Examining state ratification rates for

76 post-Cold War multilateral treaties open to all states and spanning a wide range of

issue-areas, the authors find that the top nine ratifiers are all European, as are 16 of the

top 20. By contrast, the US is ranked 76th, with a ratification rate of only 45.05%,

 

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notably behind China (69th) and India (71st), but ahead slightly ahead of Russia (97th).15

Judging from these data, it appears as if the US does indeed have what we might call a

consent, commitment, or ratification problem, demonstrating, at least in the post-Cold

War era, a far lower rate of consent to multilateral treaties than European countries.

Even where a state signs and ratifies treaties, it can limit the nature and extent of

its consent to be bound through a variety of flexibility mechanisms, which include

provisions such as limited duration (sunset) clauses, exit clauses, safeguard clauses, and

reservations, understandings, and declarations (RUDs).16 The literature on the US has

primarily emphasized two of these flexibility mechanisms, exit and RUDs. Prominent US

examples of exit include the Bush Administration’s unilateral denunciation of the

bilateral Anti-Ballistic Missile Treaty, and the temporary US withdrawals from the

International Labor Organization and UNESCO, among others, although Helfer’s data

indicate that the use of exit remains relatively rare for the US and for other countries.

Reservations are more common, and the US has actively availed itself of its right reserve

away from treaty provisions that would require significant changes in policy or that are

considered to violate the provisions of the US Constitution. Indeed, it is this pattern of

US reluctance to sign and ratify treaties, together with the use of reservations and other

flexibility mechanisms, that Michael Ignatieff calls “American exemptionalism,” in

which the US seeks exemption even from international rules that it supports.17 The few

comparative studies of reservations to treaties, however, suggest that the US is not unique

in seeking reservations to human rights or other treaties, and a particularly interesting

study by Eric Neumayer suggests that, at least in the area of human rights, it may be

democratic countries with the strongest commitment to the rule of law, including

European countries as well as the US, that are most likely to adopt reservations to

                                                                                                               15 Manfred Elsig et al., Who is in Love with Multilateralism? Treaty Commitment in the Post-Cold War Era, 12 EUROPEAN UNION POLITICS 529 (2011). 16 Laurence R. Helfer, Flexibility in International Agreements, 175 in Jeffrey L. Dunoff and Mark A. Pollack (eds.), INTERDISCIPLINARY PERSPECTIVES (2013). 17 Michael Ignatieff, Introduction: American Exceptionalism and Human Rights, 1, 4-7, in Ignatieff, ed., AMERICAN EXCEPTIONALISM AND HUMAN RIGHTS (2005).

 

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international treaties, since they are most likely to avoid being bound by treaties that

violate their domestic constitutions or with which they have no intention of complying.18

If so, then the adoption of reservations might be interpreted as a sign of support for the

rule of law, rather than a rejection of it.

While most of the literature emphasizes consent to treaties, a given state can also

consent to, or withhold consent from, provisions of customary international law. As is

well known, customary international law is generally defined as a body of law arising

from consistent state practice exercised out of a sense of legal obligation (opinio juris).

As such, customary international law is generally considered binding on all members of

the international community, although in positivist legal theory an exception is made for

“persistent objectors,” i.e. states that consistently reject a purported rule or norm of

customary international law and refuse to be bound by it. More recently, two American

legal scholars have controversially suggested that states may withdraw their consent from

specific provisions of customary international law, analogous to exit from international

treaties.19 Although the US government has yet to embrace this position, doing so would

represent a further, and thus far unprecedented, limitation to its consent to existing

provisions of international law. Whatever the outcome of that ongoing debate, it is again

clear that, as a legal matter, refusal to consent to specific international rules and norms is

each state’s right in a positivist system of law, and does not constitute a violation of

international law, although a consistent refusal to be bound may indicate weak support

for the rule of international law as such.

3. Compliance

A third measure of support for international law, and perhaps the most intuitively

obvious, is compliance, “the degree to which state behavior conforms to what an

                                                                                                               18 Eric Neumayer, Qualified Ratification: Explaining Reservations to International Human Rights Treaties, 36 J. LEGAL STUD. 397 (2007). 19 Curtis A. Bradley and Mitu Gulati, Withdrawing from International Custom, 120 YALE L.J. 202 (2010).

 

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agreement prescribes or proscribes.”20 As such, compliance is not a dichotomous

variable but a continuum, and one subject to considerable measurement problems, since

the determination of compliance or non-compliance presupposes agreement on the

interpretation and application of often vague international legal norms and rules.

Furthermore, we can distinguish various types of compliance, including what von Stein

calls “first-order compliance” (adherence to rules) as opposed to “second-order

compliance” (adherence to international judicial rulings).21 Thus, for example, a given

state may incorrectly implement a given international trade provision, and hence fail in

terms of first-order compliance, but that same state may come into second-order

compliance following a definitive ruling from an authoritative international court or

arbitrator.

Both types of compliance, in turn, are conceptually distinct from the related

concepts of implementation (defined in terms of state efforts to administer policy

directives) and effectiveness (the extent to which a treaty solves the problem that led to

its formation). This distinction between compliance on the one hand, and implementation

and effectiveness on the other, may complicate our assessment of a state’s support for

international law and to the aims that it pursues. Indeed, as a number of scholars have

now pointed out, states may comply with shallow international commitments without

engaging in any form of implementation, and without producing any effect with respect

to the aims of the agreements. Conversely, states may undertake significant efforts to

implement deep and demanding international agreements, resulting in effective efforts to

address the stated problem, but fall short of full compliance.22 For this reason, formal

compliance with international law does not necessarily signal respect for international

                                                                                                               20 Jana von Stein, The Engines of Compliance, 477, 478, in Jeffrey L. Dunoff and Mark A. Pollack (eds.), INTERDISCIPLINARY PERSPECTIVES (2013). 21 Von Stein, The Engines of Compliance, supra note x, at 478. 22 See e.g. Kal Raustiala & Anne-Marie Slaughter, International Law, International Relations and Compliance, 538, in Walter Carlsnaes et al. (eds.), HANDBOOK OF INTERNATIONAL RELATIONS (2001); and Lisa L. Martin, Against Compliance, 591 in Jeffrey L. Dunoff and Mark A. Pollack (eds.), INTERDISCIPLINARY PERSPECTIVES (2013).

 

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law to the extent that this compliance is coincidental23, resulting from the shallowness of

the agreement vis-à-vis a given state’s prior behavior. Noncompliance, by contrast,

might be taken as prima facie evidence of a lack of respect for international law, although

even here a thorough analysis might consider the depth of the commitment and the effort

of the state to comply in the face of difficulties, and explain or justify imperfect

compliance in the discourse of international law.

If we examine the literature on putative US ambivalence or hostility toward

international law, we find occasional claims that the US has failed to comply with

international legal rules and norms that it had accepted as binding, most notably with

respect to the use of force (jus ad bellum, e.g., the invasion of Iraq in 2003, and other

military actions including the mining of Nicaraguan harbors and the invasion of Grenada

in the 1980s, the bombing of Kosovo [together with its NATO allies] in 1999, and the use

of unmanned aerial vehicles or drones to target and kill suspected terrorists) and

international humanitarian law (jus in bello, including the treatment, and suspected

torture, of prisoners; the denial of Geneva Convention rights to Taliban and al Qaeda

detainees; and the accidental killing of civilians in US military actions around the

world).24 The US has also been widely criticized for its failure to carry out international

court rulings, including most notably a line of ICJ decisions relating to the rights of

foreign nationals accused of crimes under the Vienna Convention on Consular Relations

(VCCR)25, and a series of WTO rulings which have repeatedly condemned the US for the

illegality of its “zeroing” methodology for calculating anti-dumping duties.26 Some

                                                                                                               23 Goldsmith and Posner, THE LIMITS OF INTERNATIONAL LAW, supra note x. 24 The literature on purported US violations of the laws of war is extensive, and growing. See e.g. Jane Mayer, THE DARK SIDE: THE INSIDE STORY OF HOW THE WAR ON TERROR TURNED INTO A WAR ON AMERICAN IDEALS (2008); Philippe Sands, TORTURE TEAM: RUMSFELD’S MEMO AND THE BETRAYAL OF AMERICAN VALUES (2009); and Jack Goldsmith, POWER AND CONSTRAINT: THE ACCOUNTABLE PRESIDENCY AFTER 9/11 (2012). 25 Jeffrey L. Dunoff, et al., INTERNATIONAL LAW: NORMS, ACTORS, PROCESS: A PROBLEM-ORIENTED APPROACH, second edition (2006), 293-306. 26 Sungjoon Cho, No More Zeroing? The United States Changes its Antidumping Policy to Comply with the WTO, 16 ASIL INSIGHTS (March 9, 2012).

 

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works have gone further, accusing the US of violating environmental, human rights, labor

rights, and other treaties to which it had consented.27 What is generally missing from

such works, however, is an explicit comparison with other states: even if one concedes

that US compliance with, for example, the UN Convention on Civil and Political Rights

is imperfect, the general record of US compliance with international human rights and

other bodies of law is nevertheless comparatively strong. Regardless of how one assesses

the overall US record of compliance with international law, even a cursory glance at the

US case reveals that compliance is a matter of degree, subject to careful, comparative

analysis, and that a given state’s compliance with international legal rules is likely to vary

substantially across issue-areas and over time. This is likely to be as true of the EU, and

European countries, as it is of the US, yet we lack systematic data on EU countries’

compliance with the same rules of international law.

4. Internalization

The fourth dimension of support for international law, and arguably the most

demanding, is internalization, the process whereby international legal norms and rules are

incorporated into the domestic legal order. Along this dimension, states that grant

international rules and norms legal force in the domestic legal order would be considered

more supportive of international law, while states that denied such effect would be

considered ambivalent or hostile. The process of internalization is the subject of a large

literature in law and political science, with different authors laying out overlapping, but

not identical, typologies and causal processes of internalization.28 Koh, for example,

distinguishes among three types of internalization, including social, political, and – most

importantly for our purposes – legal internalization, which “occurs when an international

                                                                                                               27 On purported US human rights violations, see e.g. Human Rights Watch’s web page on the US, at http://www.hrw.org/united-states. 28 Harold Hongju Koh, Why Do Nations Obey International Law?, 106 YALE L.J. 2599 (1997); Koh, Bringing International Law Home, 35 Hous. L. Rev. 623 (1998); Ryan Goodman and Derek Jinks, “How to Influence States: Socialization and International Human Rights Law,” 54 DUKE L.J. 621 (2004); and Beth A. Simmons, MOBILIZING FOR HUMAN RIGHTS: INTERNATIONAL LAW IN DOMESTIC POLITICS (2009).

 

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norm is incorporated into the domestic legal system and becomes domestic law through

executive action, legislative action, judicial interpretation, or some combination of the

three.”29 EU law is often held up as the best example of such legal internalization, since

EU law is considered to be directly effective in the national legal orders of the member

states (with no need for legislative transposition), supreme over inconsistent domestic

laws, and justiciable before domestic courts. More generally, some states are seen as

being more prone to legal internalization, particularly monist states that automatically

incorporate all treaty law into the domestic legal order. By contrast, dualist states,

including the US and some European countries, “conceptualize the international legal

order as separate from the domestic legal order and tend to require the adoption of

national measures to bring international law into effect in domestic law.”30 On a related

note, some authors have suggested that common-law states face particular risks from

internalization of international law, since common-law judges are more likely than civil-

law judges to interpret such law in unexpected ways that can subsequently serve as

precedent for future decisions.31 In any event, the significance of internalization should

be expected to vary across issue-areas, taking on greatest importance where international

law seeks to regulate the actions of private actors or governments’ treatment of their own

citizens, but marginal importance where the subject of international law is simply the

foreign-policy behavior of states with little or no domestic component.

In this context, the US is often presented as ambivalent or even hostile to

internalizing international law into the domestic legal order. Although international

treaties enjoy a constitutional status as the supreme law of the land, in practice the US has

long distinguished between self-executing treaties, which are directly effective in the US

legal order, capable of granting individual rights and justiciable before domestic courts,

                                                                                                               29 Koh, Bringing International Law Home, supra note x, at 642. 30 Lisa Conant, Whose Agents? The Interpretation of International Law in National Courts, 394, 398, in Jeffrey L. Dunoff and Mark A. Pollack (eds.), INTERDISCIPLINARY PERSPECTIVES (2103). 31 Sara McLaughlin Mitchell and Emilia Justyna Powell, DOMESTIC LAW GOES GLOBAL: LEGAL TRADITIONS AND INTERNATIONAL COURTS (2011), 62, citing Simmons, MOBILIZING FOR HUMAN RIGHTS, supra note x.

 

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and non-self-executing treaties, which require Congressional action before taking effect

in the US legal order. Across a broad range of issue-areas, successive US presidents and

Congresses have made clear, typically in the form of RUDs, that most international trade,

human rights, humanitarian and other treaties are non-self-executing, and therefore not

enforceable in domestic US courts. US courts have also shown some resistance to

accepting the enforceability of international rules or international court rulings in the

domestic legal order, including in the aforementioned consular relations cases in which

the Supreme Court held that judgments of the International Court of Justice could not be

enforced against state or federal governments. Furthermore, a growing number of

prominent American scholars have argued against internalization of international law,

and especially customary law, in the US legal order, arguing that the incorporation of

often vague provisions of international law is likely to muddy rather than clarify the law,

while departing from American traditions of representative democracy, separation of

powers, and federalism.32

Here again, however, a careful, comparative analysis is called for. While US

presidents, Congresses and courts have indeed demonstrated a considerable reticence to

grant international law direct effect in the domestic legal order, a notable exception can

be found in the Alien Tort Statute, which US federal courts have interpreted to allow

foreign individuals to bring suits in US court for a tort suffered in violation of principles

of customary international law, such as torture. Although the US Supreme Court has

restricted the scope for future law suits in the Kiobel case33, this line of cases arguably

goes farther than nearly any other national court in giving domestic effect, and

extraterritorial reach, to fundamental rules of customary international law.

More generally, as with accusations of US noncompliance with existing treaties,

criticisms of the US for failure to internalize international rules often fail to engage in any

sort of comparative analysis, for example by asking whether other states, either liberal                                                                                                                32 Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARVARD LAW REVIEW 815 (1997). 33 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013).

 

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democracies or autocracies, have demonstrated a greater willingness to grant

international legal agreements direct effect in their own domestic legal order. In fact, the

existing scholarly literature on the subject has demonstrated that both European national

governments and courts, as well as the European Court of Justice (ECJ), have been

reticent to grant direct effect to non-European international legal norms, for example by

denying the direct effect of WTO rules in EU law, or even more famously denying direct

effect of UN Security Council Resolutions to the extent that these conflict with core

human rights principles in the 2008 Kadi decision, which has been compared in this sense

to the US Supreme Court’s decision in Medellín.34 The point here is not to equate US

and EU jurisprudence regarding the direct effect of international law in domestic legal

orders, but to point to the need for careful comparative analysis on this question.35

Taking all four of the above dimensions together, we might be tempted to

aggregate all four dimensions – leadership, consent, compliance and internalization – into

a single score of support for international law, so that states that score high across all four

dimensions can be rated as strongly supportive, while those with medium or low levels

on the same four dimensions might be considered as ambivalent or hostile to international

law. Such an aggregated analysis, however, is likely to be counterproductive, concealing

significant variation across dimensions, across states, across issue-areas, and over time.

Instead, I propose, by disaggregating these four distinct dimensions, and examining them

across multiple issue-areas to look for systematic cross-issue variation, it should be

possible to determine with greater precision the nature of, and variations in, US and

European support for international law in comparative perspective.

                                                                                                               34 Gráinne de Búrca, The European Court of Justice and the International Legal Order after Kadi, Jean Monnet Working Paper No. 1/09, NYU School of Law, http://centers.law.nyu.edu/jeanmonnet/papers/09/090101.pdf. 35 For just such a study, see the article by Grainne de Burca in this symposium.

 

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5. Support for Which International Law? A Note on Fragmentation of the

International Legal Order

Thus far, we have spoken in general terms of states’ support for, or ambivalence

or hostility towards, international law as the dependent variable of the symposium. It may

be, however, that the conceptualization of the EU, the US or any other polity as being

committed or opposed to “the rule of international law” is itself a flawed and misleading

concept, which rests on unstated, naïve assumptions about the fundamental unity of the

international legal order. In fact, a growing body of contemporary interdisciplinary

scholarship has demonstrated that the international legal order is no longer unitary, if

indeed it ever was, but rather fragmented. Over the past several decades, international

legal instruments and institutions have proliferated36, resulting in a growing web of

overlapping and nonhierarchically arranged regimes37, which in turn has spawned legal

fragmentation38 as well as opportunistic “forum-shopping” and “regime-shifting” tactics

by both states and non-state actors.39

For our purposes here, the significance of such legal fragmentation is not simply

that the states’ support for international law may vary by regime or by issue-area, a point

that has been widely understood for decades.40 The point, rather, is that any state, or any

collective actor such as the EU, does not face a simple binary choice to either support or

reject “international law” on any given issue. Rather, the fragmentation of the

international legal order presents states with multiple, alternative legal forums within

                                                                                                               36 Kal Raustiala, Density and Fragmentation in International Institutions, 293 in Jeffrey L. Dunoff and Mark A. Pollack, eds., INTERDISCIPLINARY PERSPECTIVES (2013). 37 Kal Raustiala & David G. Victor, The Regime Complex for Plant Genetic Resources, International Organization, 58 INT’L ORG. 277 (2004); Karen J. Alter & Sophie Meunier, The Politics of International Regime Complexity, 7 PERSPECTIVES ON POLITICS, 13 (2009). 38 Martti Koskenniemi & Paivi Leino, “Fragmentation of International Law? Postmodern Anxieties,” 15 LEIDEN J. INT’L L. 553 (2002). 39 Laurence R. Helfer, “Regime Shifting: The TRIPS Agreement and New Dynamics of International Intellectual Property Lawmaking,” 29 YALE J. INT’L L. 1 (2004); Joseph Jupille et al., INSTITUTIONAL CHOICE AND GLOBAL COMMERCE (2013). 40 Stephen D. Krasner, Structural Causes and Regime Consequences: Regimes as Intervening Variables, 36 INT’L ORG 185 (1982).

 

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which to pursue their interests, accepting legal constraints within one legal regime while

resisting, undermining, or breaching legal rules in another. In this context, the real

question may not be whether a state supports international law, but rather which

international laws and legal arenas one supports.

In such a setting, a given state’s support for or opposition to “international law” is

largely a matter of framing, of which international rules and forums the analyst chooses

to foreground. In the infamous US/EU dispute over genetically modified foods, for

example, one analyst could present a case for the EU as a leader in international law-

making through the Cartagena Protocol to the Convention on Biodiversity, which the US

has refused to sign or ratify. Supportive EU, hostile US. Another analyst, however,

could draw dramatically different conclusions by focusing on the World Trade

Organization and its Sanitary and Phytosanitary Agreement, which the US has

championed and which the EU has violated, remaining in apparent breach of its

commitments a decade after a definitive WTO panel ruling against it.41 Supportive US,

hostile EU.

More generally, students of legal fragmentation and regime complexity have

become adept at mapping state strategies in such a complex legal and institutional space,

yet our language for discussing EU and US support for international law has lagged,

remaining fixed on a unitary conception of law which ignores the multiple legal options

available to sophisticated players in a fragmented legal order. For this reason, any study

of US, EU or other actors’ support for international law must consider not only whether

an actor favors a particular agreement – which has been the standard approach in the

literature – but also whether that actor instead favors either (a) an alternative international

legal rule or process, including possibly a customary or soft-law rule42, or (b) a non-legal

alternative such as purely unilateral decision-making or rule of the powerful.

                                                                                                               41 Mark A. Pollack & Gregory C. Shaffer, WHEN COOPERATION FAILS: THE GLOBAL LAW AND POLITICS OF GENETICALLY MODIFIED ORGANISMS (2009). 42 This raises another vexing question, namely whether support for (a) customary or (b) soft international law constitutes a lesser degree of commitment to international law as compared to treaty law. To a legal positivist, customary law might, and soft law almost certainly would, represent a lesser commitment to  

 

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II. The Independent Variables: International and Domestic, Political and Legal

Thus far, we have focused on how to conceptualize support for international law,

but we have made no effort to explain why states might show variable levels of support

for international law across these four dimensions. In this section, I provide a typology

of causal factors, or independent variables, that might explain observed variations in

support for international law across states, issue-areas, and time. This typology does not

constitute a theory but rather a framework for identifying and locating potential causal

factors, and it is intended to draw from, but to be agnostic with respect to, competing

theories of international law and international relations. Following previous work on the

US and international law43, I distinguish first between two levels of analysis, namely

international and domestic, and next between two types of factors, political and

legal/constitutional. Combining these two dimensions yields a four-part typology of

potential determinants of a state’s support for international law: international-political,

international-legal, domestic-political, and domestic-legal44 (see table 1). Let us consider

each of these sets of variables in turn.

                                                                                                                                                                                                                                                                                                                                         international law than a treaty, ceteris paribus; yet other scholars and practitioners defend the choice of either customary or soft law rules and processes as appropriate, of even preferable, for particular types of problems. See e.g. Kal Raustiala and David G. Victor, Conclusions 659, in David G. Victor et al., THE IMPLEMENTATION AND EFFECTIVENESS OF INTERNATIONAL ENVIRONMENTAL COMMITMENTS: THEORY AND PRACTICE (1998). 43 Andrew Moravcsik, Why is U.S. Human Rights Policy So Unilateralist? 345 in Shepard Forman and Patrick Stewart, eds., THE COST OF ACTING ALONE: MULTILATERALISM AND US FOREIGN POLICY (2001); AND MURPHY, THE UNITED STATES AND INTERNATIONAL LAW, supra note x.). 44 One potential objection to this categorization is that the line between political and legal forums or factors is a fuzzy one. I have attempted to address this legitimate concern by specifying which specific variables I include under each heading, with political factors amounting essentially to preferences and power of international and domestic actors, and with legal factors incorporating international institutional and domestic constitutional rules. An alternative categorization could be derived from the international political economy literature, replacing “political and legal” variables with “interests and institutions,” respectively. See e.g. David A. Lake, International Political Economy, 757, in Barry R. Weingast and Donald Wittman, eds., THE OXFORD HANDBOOK OF POLITICAL ECONOMY (2008); and Thomas Oatley, INTERNATIONAL POLITICAL ECONOMY, 4th edition (2010). The latter approach, however, subsumes legal rules and processes under the broader rubric of institutions, and it reduces “political” factors to “interests,” thereby implicitly downgrading the importance of normative or ideational factors in domestic and international politics; for this reason, I have tentatively opted to retain the imperfect “political and legal” labels.

 

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Table 1: Independent Variables: International and Domestic, Political and Legal Factors Political Legal/Constitutional

International Level of Analysis

Domestic

1. International-Political Factors

First, with respect to the international-political sphere, I focus on two sets of

variables, namely the distribution of state preferences and the distribution of state

power, associated with liberal and realist IR theories, respectively. With respect to the

preferences, ceteris paribus, a state’s placement within the constellation of state

preferences is likely to shape the extent to which international legal agreements reflect

any individual state’s policy preferences, and hence we can hypothesize that states with

mainstream preferences are, ceteris paribus, more likely to support international legal

commitments, while preference outliers are more likely to resist them.45 This argument is                                                                                                                45 Andrew Moravcsik, Taking Preferences Seriously: A Liberal Theory of International Politics, 51 INT’L ORG 513 (1997).

International politics. (a) Distribution of preferences. States with minority preferences withhold consent. (b) Distribution of power. Great powers have greater ability to shape IL, but may also have special responsibilities, and can resist IL at lower cost.

International law and institutions. International legal outcomes shaped by extant legal institutions, e.g. universal membership, sovereign equality bodies, which privilege weak states at the expense of the powerful.

Domestic politics. State support for IL reflects (a) domestic ideologies, (b) party politics, and (c) interest-group pressures.

Domestic law and constitutional rules. Constitutional rules can facilitate or complicate acceptance of IL, e.g. (a) ratification procedures, (b) federalism, and (c) fundamental rights.

 

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clearly relevant to the US, which in 1945 enjoyed strong support from a majority-western

bloc in the 51-member United Nations. By the 1970s, however, decolonization had

reduced the US and its western allies to minority status vis-à-vis the G-77 group of newly

independent, less developed countries, which dwarfed the smaller group of western

democracies and often made common cause in international negotiations with the

members of the Soviet bloc in its pursuit of a radical redistributive agenda.46 Ceteris

paribus, therefore, we might expect the attitude of the US, and of its European

counterparts, to become less favorable to international law, if and insofar as the “policy

outcomes” of international legal agreements, particularly in global fora, came to reflect

the preferences of the growing global South.

International legal outcomes, however, do not simply reflect the constellation of

state preferences, but also the distribution of state power, with great powers and

particularly hegemonic actors more likely to prevail in distributive bargaining. By this

logic, one might expect that, ceteris paribus, great and in particular hegemonic powers

might generally be more supportive of a strong international legal order, playing a

leading role in its creation, consenting to and complying with rules that

disproportionately reflect their own preferences. John Ikenberry has made precisely this

argument with respect to the postwar United States, which led in the creation and

development of a liberal international legal order that closely reflected its own

preferences.47

Great power can cut both ways, however: if we believe, with much of the

international legal profession, that the rule of international law levels the playing field,

replacing a Hobbesian power-based system with a Lockean rules-based system48, then we

might expect great powers to chafe against the restrictions of international legal rules.

Furthermore, great powers are often said take on “special responsibilities” with respect to

                                                                                                               46 Stephen D. Krasner, STRUCTURAL CONFLICT: THE THIRD WORLD AGAINST GLOBAL LIBERALISM (1985). 47 Ikenberry, AFTER VICTORY, and LIBERAL LEVIATHAN, supra note x. 48 Daniel W. Drezner, The Power and Peril of International Regime Complexity, 7 PERSPECTIVES ON POLITICS 65 (2009).

 

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the maintenance of global order, and hence are seen to require greater flexibility than a

constraining international legal order might allow – an argument frequently put forward

by defenders of the post-9/11 United States seeking to loosen legal constraints in the war

on terror.49 Taken alone, therefore, the influence of state power on support for

international law is indeterminate, consistent with either strong support (Ikenberry’s

institutionalist account) or a strong aversion to being bound by inflexible rules that favor

the weak and hobble the strong (the realist or neoconservative account). We must

therefore look beyond preferences and power, to other factors that might shape any given

state’s attitude to international law.

2. International-Legal Factors

This brings us to a second set of factors, namely the international-legal system,

including the fundamental legal norms and the international legal institutions that shape

both the negotiation of international treaties and the development of customary

international law.50 Beginning with the latter, it is often claimed that not only the content

but also the process of making customary international law is shrouded in obscurity, with

both elements of state practice and opinio juris open to interpretation and contestation;

yet states of all kinds have clearly attempted, within this broadly accepted framework, to

shape the evolution of customary international law, putting forward claims and counter-

claims regarding the status of international norms that can be said to have attained the

status and the legally binding force of customary international law. For example,

although customary international law is seldom highlighted in the literature on the US

and international law, it is clear that the US has actively attempted to shape the

development of customary international law by propagating new norms (e.g.

                                                                                                               49 Such sentiments, however, precede both the Bush Administration and the war on terror. See e.g. David J. Scheffer, The United States and the International Criminal Court, 93 AM. J. INT’L L. 12 (1999). 50 In the language of international law scholarship, I am therefore distinguishing here between what H.L.A. Hart called “primary” rules, or rules of conduct, and “secondary” rules, which govern the creation, alteration, and interpretation of primary rules. H. L. A. Hart, THE CONCEPT OF LAW (1961).

 

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humanitarian intervention and the responsibility to protect) while rejecting counter-norms

put forward by other states (e.g., the illegality of nuclear weapons). Similarly, as we have

seen, the US often falls back on customary international law as an alternative to accepting

and ratifying international treaties such as the VCLT and LOSC. The US’ success or

failure in these efforts is shaped in large part by long-standing constitutive norms in

international law, and indeed, the strong US effort to shape the development of global

custom can be read as evidence of deep engagement with, and not opposition to or

neglect of, the international legal order.

International legal institutions also shape the negotiation of international treaties.

For example, the UN system established by the US and its allies in 1945 entrenched the

general principle of rule-making by sovereign equality bodies which (in contrast with the

Bretton Woods institutions of the same era) favored both universal membership and a

one-state, one-vote allocation of voting rights. This institutional configuration was, as

noted above, congenial to both the US and its European allies in the immediate post-war

era, but it has since relegated western powers to the status of structural minorities on

many issues in the General Assembly and in the large number of multilateral treaties

negotiated under UN auspices. For this reason, we might expect that large Western

powers will suffer systematic setbacks in the making of international law, and potentially

in the interpretation and enforcement of international law by UN committees, and grow

increasingly wary of these institutions in practice – particularly if and insofar as the G-77

majority represents not only an economically redistributive but also an illiberal,

authoritarian challenge to the values of western liberal democracies.51 Examples of such

conflicts are legion in the literature on the US and international law, with the US being

reduced to a minority in universal-membership negotiations, and subsequently refusing to

ratify a raft of major multilateral agreements that fail to reflect core US concerns. The

EU, by virtue of its 28 member states, is less likely to be isolated in the same way, but it

                                                                                                               51 See e.g. Daniel Patrick Moynihan, A DANGEROUS PLACE (1978); and Krasner STRUCTURAL CONFLICT, supra note x.

 

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too is subject to being reduced to the status of a structural minority on certain issues in

universal-membership institutions.52

This legal/institutional characteristic of the UN system may thus help explain US

concerns about negotiating and being bound by global multilateral agreements, as well as

the widespread US view of the UN as “a dangerous place,” but it fails to explain why

European countries remain far more engaged in such efforts, and more willing to accept

and ratify the outcomes of such negotiations. Furthermore, as we have seen above, states

today are not limited to any single negotiating forum but can select from multiple existing

forums (the UN, the G20, the OECD, etc.) or create, at relatively low cost, ad hoc

negotiating forums. In this sense, while states may be forced to accept the fundamental

grundnorms of the international legal order, to a large extent the institutional rules that

govern international law-making are endogenous to state choice in a world of legal

fragmentation. To understand individual states’ (or collective EU) choices about

international law, therefore, we are forced to descend from the international systemic

level to consider the impact of domestic politics and domestic legal and constitutional

factors on state choices about international law.

3. Domestic-Political Factors

Turning therefore to our third set of independent variables, domestic-political, we

can theorize that domestic politics may shape a state’s attitude to international law

through three mechanisms: domestic ideology, party politics, and interest-group

pressures. Proceeding in decreasing degrees of aggregation, we can begin with domestic

ideology.

Ideological or political culture explanations of differing US and EU approaches to

international law are commonplace, frequently referencing either “American

exceptionalism” or “Normative Power Europe.” The former term, coined by Alexis de

                                                                                                               52 See e.g. Richard Gowan and Franziska Brantner, A GLOBAL FORCE FOR HUMAN RIGHTS? AN AUDIT OF EUROPEAN POWER AT THE UN (2008).

 

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Tocqueville and since used to analyze and explain a dizzying variety of US domestic and

international policies, refers “to the perception that the United States differs qualitatively

from other developed nations, because if its unique origins, national credo, historical

evolution, and distinctive political and religious institutions.”53 The claim, put simply, is

that the US is, or perceives itself to be, different from (and perhaps superior to) other

countries, and this broad cultural perception entails a deep commitment to national

sovereignty and a generalized hostility to being bound by non-American rules and

norms.54

By contrast, a growing literature in EU studies refers to the EU as a “normative

power,” fundamentally different from the US, and other countries. Put simply, the idea of

“Normative Power Europe” posits that the EU is constituted by a commitment to certain

constitutional norms that determine its international identity, including five core norms

(peace, liberty, democracy, the rule of law, and human rights) and four minor norms

                                                                                                               53 Koh, On American Exceptionalism, at 1481. 54 In this original Tocquevillian sense, therefore, exceptionalism is considered to be a domestic ideology, which in turn might explain, as an independent variable, the behavior of the US on a world stage. In recent years, however, scholars have used the term “American exceptionalism” more broadly, as a characterization of US behavior toward international law, which is close to the dependent variable of “support” in this study. Among the most influential of these formulations are those offered by Michael Ignatieff and Harold Koh.

Ignatieff distinguishes three variants of American exceptionalism, citing (1) “American exemptionalism,” in which the US exempts itself from international rules through nonratification, RUDs, non-self-executing provisions, and noncompliance; (2) “double standards,” in which the US seeks to be held to a different legal standard than other countries; and (3) legal isolationalism, in which US courts demonstrate resistance to drawing up on the jurisprudence of foreign courts in interpreting US law. Ignatieff, American Exceptionalism, supra note x at 4-9.

Koh offers a related unpacking of US distinctiveness, distinguishing four dimensions: (1) a “distinctive rights culture”; (2) “different labels” based on US experience in place of international labels for the same concepts (e.g. torture); (3) a “flying buttress mentality” in which the US is content to support but not subject itself to international rules and norms (discussed above); and (4) “double standards,” which occurs “when the United States proposes that a different rule should apply to itself than applies to the rest of the world.” Koh, On American Exceptionalism, supra note x at 1483-1486.

I find both Ignatieff’s and Koh’s reconceptualizations to be illuminating, and they have influenced the framework put forward here. For our purposes here, however, I refer to American exceptionalism in a narrow sense, as a causal explanation that attributes the distinctive US approach to international law to the specific features of American ideology or political culture.

 

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(social solidarity, anti-discrimination, sustainable development, and good governance).55

These are not simply universal or Western norms, moreover; rather, “the EU is

normatively different to other polities with its commitment to universal rights and

principles.”56 Indeed, “… the central component of normative power Europe is that it

exists as being different to pre-existing political forms, and that this particular difference

pre-disposes it to act in a normative way.”57 The EU is in this sense also exceptional, but

its exceptionalism consists in its commitment to develop and subject itself to a rules-

based, multilateral legal order.58

Taken together, the dual concepts of American exceptionalism and Normative

Power Europe generate a prediction of a stark and persistent contrast between the US and

the EU. Political cultures, however, are not monolithic, and politics within a given

political system is likely to be characterized by significant political contestation. Hence,

for example, the US may appear a “conservative nation” in comparison with Europe, but

left-right contestation within the US is reflected in the systematically different views of

Democratic and Republican parties toward international law in general and toward

specific international agreements in particular. Indeed, it has become commonplace for

scholars to argue that international law has become, far more than in the early post-war

                                                                                                               55 Manners, Normative Power Europe, supra note x, at 241-42. Interestingly, Manners’ thesis dovetails with Bradford and Posner’s powerful critique of American exceptionalism, which argues that all major powers are exceptionalist, “in the sense that they take distinctive approaches to international law that reflect their values and interests.” Anu Bradford and Eric A. Posner, Universal Exceptionalism in International Law, 52 HARV. INT'L L.J. 1 (2011). Bradford and Posner argue that the EU is similarly exceptionalist, seeking and insisting upon the universalization of its domestic values and interests, such as human rights and social welfare, in international law, and failing to comply with international law where it conflicts with strongly held domestic values. See also Magdalena Ličková, European Exceptionalism in International Law, 19 EUR. J. INT’L L. 463 (2008); Sabrina Safrin, The Un-exceptionalism of US Exceptionalism, 41 VAND. J. TRANSNAT'L L. 1307 (2008); and Georg Nolte and Helmut Philipp Aust, European Exceptionalism? 2 GLOBAL CONSTITUTIONALISM 407 (2013). 56 Manners, Normative Power Europe, supra note x, at 241. 57 Ibid, at 242. 58 See also Anu Bradford and Eric A. Posner, Universal Exceptionalism in International Law, 52 HARV. INT'L L.J. 1 (2011); Magdalena Ličková, European Exceptionalism in International Law, 19 EUR. J. INT’L L. 463 (2008); Sabrina Safrin, The Un-exceptionalism of US Exceptionalism, 41 VAND. J. TRANSNAT'L L. 1307 (2008); and Georg Nolte and Helmut Philipp Aust, European Exceptionalism? 2 GLOBAL CONSTITUTIONALISM 407 (2013).

 

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years, a partisan issue dividing Republicans from Democrats.59 This broad generalization

about international law-loving Democrats and suspicious Republicans should be treated

with some degree of skepticism, however, and is likely to display variation by issue-area.

There is, for example, considerable evidence that Democrats are more likely to favor

international agreements in areas such as human rights, labor law, criminal law, and

environmental law, and in this context it is striking that many of the signed-but-unratified

treaties mentioned above were signed by Democratic presidents but subsequently blocked

largely by the efforts of Republican members of Congress. In other areas such as trade

and investment, however, Republicans may be more supportive of international legal

agreements, while in still other areas party politics may be relatively unimportant. In EU

countries, political party scholars have demonstrated that support for European

integration varies systematically by party, with mainstream center-left and center-right

parties most likely to support further integration, and extreme left and right parties most

likely to oppose it.60 Yet, to this author’s knowledge, we have no similarly systematic

analysis of partisan differences with respect to public international law in EU countries.

Finally, at a still lower level of aggregation, a significant body of scholarship

attributes domestic support for international legal agreements to the preferences and

power of domestic interest groups. Across a broad range of issue-areas, scholars in

international relations, international political economy and law have attributed state

commitment to, and compliance with, international legal agreements to interest-group

pressures on elected representatives. The logic here is most obvious in the areas of trade

and economic regulation, where businesses, trade unions, and other actors have a clear

economic incentive to mobilize to support or oppose international rules that affect them.

This is a powerful perspective, which has the potential to illuminate all stages of the

international legal process from negotiation through adjudication and compliance.61 It is,                                                                                                                59 Judith Kelley and Jon Pevehouse, An Opportunity Cost Theory of US Treaty Behavior, http://www.internationalpolicy.umich.edu/pevehouse-paper-10-10-12.pdf. 60 Simon Hix et al., DEMOCRATIC POLITICS IN THE EUROPEAN PARLIAMENT (2007). 61 On international adjudication, see e.g. Lake, International Political Economy, supra note x; and Oatley, INTERNATIONAL POLITICAL ECONOMY, supra note x; on interest groups and international adjudication, see  

 

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for example, at the heart of Kelemen and Vogel’s political-economy explanation of

differences between the US and the EU over multilateral environmental agreements, in

which.62 In Kelemen and Vogel’s view, the relative domestic influence of business and

environment groups determines the shape of domestic environmental regulation, with the

US, for example, taking an early lead in environmental regulation in response to pressure

from public opinion; once that lead was established, they argue, domestic US interests

created a so-called Baptists and Bootleggers coalition, with environmental “Baptists”

seeking strong international environmental rules for their own sake, while business

“Bootleggers” sought to externalize domestic regulations to their international

competitors and therefore level the playing field. In this argument, the rise of Green

parties and the environmental movement in Europe, contemporaneous with the rise of a

conservative backlash against regulation in the US, led the two polities to switch places

from the 1980s onwards, with the EU now adopting increasingly strict domestic

regulations and attempting to export those regulations to the rest of the world. Other

scholars have generalized this argument beyond the environmental realm, arguing that

EU enthusiasm for international economic regulations of all sorts represents a post-1992

effort to externalize or upload strict and costly domestic EU regulations to the

international level. Indeed, this EU effort to export its own standards is part of an explicit

strategy promulgated by the European Commission to “promot[e] European standards

internationally through international organization and bilateral agreements,” which, the

Commission argues, “works to the advantage of those already geared up to meet those

standards.”63, and we shall see interest-group explanations looming large in the studies of

trade, environmental, and human rights policies in this symposium.                                                                                                                                                                                                                                                                                                                                          e.g. Gregory C. Shaffer, DEFENDING INTERESTS: PUBLIC-PRIVATE PARTNERSHIPS IN WTO LITIGATION (2003); on interest groups and compliance, see e.g. Miles Kahler, Conclusions: The Causes and Consequences of Legalization, 54 INT’L ORG. 661 (2000); and Joel P. Trachtman, Open Economy Law, 544, in Jeffrey L. Dunoff and Mark A. Pollack (eds.), INTERDISCIPLINARY PERSPECTIVES ON INTERNATIONAL LAW AND INTERNATIONAL RELATIONS: THE STATE OF THE ART (2013). 62 Kelemen & Vogel, Trading Places, supra note x. 63 Draft Commission document quoted in Tobias Buck, EU Wants Rest of the World to Adopt Its Rules, FINANCIAL TIMES, 19 February 2007, 7.

 

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4. Domestic-Legal Factors

Such interest-based arguments are promising as explanations for US/EU

differences in various areas of economic regulation, yet, as IPE scholars have

increasingly recognized, the demands of interest groups do not translate directly into

public policies, but are aggregated through domestic institutions, which can bias

outcomes in favor of some interests rather than others.64 For this reason, a growing

number of political science scholars have moved towards a two-step, “interests and

institutions” approach to understanding the domestic origins of state preferences.65 This,

in turn, brings us to our final set of domestic-legal or constitutional variables, whereby

legal and constitutional institutions can influence the aggregation of domestic interests

and the orientation of the state toward international law or specific legal agreements. In

principle, a huge variety of legal and constitutional features – including not least broad

differences in regime type between democratic and authoritarian regimes, or legal

differences between monist and dualist legal systems – might influence the attitude of a

given state toward international law. Given the comparative focus of this study on the

democratic polities of the US and the EU, however, I focus here on three specific

constitutional features emphasized in the literature on the US and international law: rules

on ratification of treaties; the unitary or federal nature of the constitutional order; and the

nature of constitutional rights protection.

With respect to the first of these, it is clear that constitutional rules governing the

ratification of international treaties are vital in shaping any state’s willingness to consent

to those treaties. In this context, it is often noted that the US ratification process

constitutes an extraordinarily high threshold for consent. Not only does the two-thirds

majority requirement in the US Senate necessitate in most cases a bipartisan majority to

approve any proposed treaty, but the structure of the Senate also results in the                                                                                                                64 Moravcsik, Taking Preferences Seriously, supra note x. 65 Lake, International Political Economy, supra note x; Oatley, INTERNATIONAL POLITICAL ECONOMY, supra note x.

 

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overrepresentation of the less populous states, such that Senators representing only 17%

of the US population are in theory capable of rejecting any international treaty.66

Furthermore, all international treaties must pass through the Senate Foreign Relations

Committee, and then be scheduled for a vote by the Senate leadership before they can

come to a floor vote, further increasing the number of potential veto players in the

ratification process.67 Furthermore, the US presidential system, by contrast with the

parliamentary systems characteristic of nearly all European countries, includes within it

the prospect of divided government, in which a President may well be faced with the

prospect of sending a treaty to a Senate with a majority (or a blocking minority) from the

opposition party. Taken together, these institutional rules privilege status-quo interests

seeking to block the ratification of treaties to which they are opposed, and no doubt help

to explain the extremely large backlog of treaties signed by the President but not

subsequently approved by the Senate, as well as the relatively large number of

reservations adopted by the US, often in an effort to appease reticent Senators.

By contrast with the US, the parliamentary systems of Europe have considerably

lower thresholds for ratification of treaties, although ratification of EU treaties has proven

periodically problematic, with various member states voting to reject numerous EU

treaties, particularly in instances where domestic constitutional law or tradition requires a

referendum prior to ratification. Furthermore, if. If we move from the national to the EU

level, however, where the Union as such is empowered to become a party to some

international treaties, the qualified majority voting requirement in the Council of

                                                                                                               66 This supermajority requirement, writes Oona Hathaway, is highly unusual in comparative terms; indeed, only five other states in the world require a supermajority vote in a legislature to ratify a treaty, while others – including all EU member states – require only simple or absolute majorities. Oona Hathaway, Treaties’ End: The Past, Present, and Future of International Lawmaking in the United States, 117 YALE L.J. 1236, 1271 (2008). In part because of the onerous nature of the Article II treaty process, the US has moved increasingly toward the use of congressional-executive agreements, which are subject to ratification by majority votes in both the House and Senate, and which today vastly outnumber Article II treaties; yet the Article II process of Senate ratification continues to govern the ratification of many of the most significant international legal agreements, posing an extraordinarily high threshold to US consent. 67 U.S. Senate, The Senate’s Role in Treaties, http://www.senate.gov/artandhistory/history/common/briefing/Treaties.htm (2012).

 

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Ministers, together with the growing power of the European Parliament to block treaties

in specific issue-areas, poses a daunting set of challenges to ratification. Indeed, it

appears that the recent empowerment of the Parliament to assent to an increasing number

of international agreements has resulted in a modest “ratification problem” for the Union,

manifested in the Parliament’s rejection of agreements such as the US/EU agreement on

the sharing of banking data68, another bilateral agreement with Morocco over fisheries69,

and the multilateral anti-piracy agreement ACTA.70

Beyond constitutional ratification requirements, two other constitutional features

of the US are often posited to shape its approach to specific bodies of international law.

The US federal system, first of all, limits the competence of the federal government and,

through the 10th Amendment, reserves all other powers to the states, and this

constitutionally prescribed separation of powers is often said to account for the difficulty

that the US has in consenting to or complying with international treaties that implicate the

constitutionally protected powers of the states. Such “federalism problems” have been

cited in some of the most high-profile cases of US ambivalence toward international law,

including with respect to human rights treaties, criminal law procedures (including the

line of cases arising from the VCCR), and areas of economic regulation such as insurance

and public procurement which implicate the several states.

Similar problems arguably manifest themselves in the quasi-federal EU system,

particularly in the area of trade, where the EU collectively ratifies international

agreements. However, by contrast with the US, where the central government has a

monopoly of treaty-making power and federalism problems make it difficult for the

central government to commit the US in ways that influence the powers of the states, in

Europe the protected prerogatives of the individual member states translate into a

situation where EU as such more often plays at best a coordinating role among the

                                                                                                               68 Stanley Pignal, European Parliament Rejects US Data Swap Deal, FINANCIAL TIMES, 11 February 2010. 69 Toby Vogel, MEPs Reject EU-Morocco Fisheries Pact, EUROPEAN VOICE, 14 December 2011. 70 Goodbye ACTA: EU Parliament Rejects Anti-Piracy Treaty, EURACTIV, 5 July 2012.

 

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member states, which ratify and implement international treaties individually. Put

differently, “subsidiarity” in the EU means that Brussels is uninvolved or weakly

involved in negotiating international treaties, while “states’ rights” in the US means that

Washington leads, but with heavy constitutional constraints.

Finally, it often noted that the constitutional structure of rights protection in the

US shapes the country’s stance toward international human rights agreements. In

particular, Moravcsik and others have argued that the particularities of human rights

protection under the Bill of Rights, including the remarkably strong protections for free

speech, the predominance of civil and political rights, and the absence of economic and

social rights, help to explain American reticence toward international human rights

treaties.71 Moravcsik argues further that the long record of effective human rights

protection in the US (and, by extension, among the other long-standing democracies of

Europe) reduce the need for an international guarantee against backsliding, which is most

valuable for young and transitional democracies. These constitutional differences, he

argues, help explain the stark contrast between US and European attitudes toward

international human rights treaties, including not only European countries’ ratification of

the key UN human rights treaties but also the initial reluctance of established

democracies in the 1950s to accept an independent and intrusive European Court of

Human Rights (ECtHR).72

I have attempted in this section to develop, not a substantive theory of support for

international law, but rather a general framework for identifying the types of variables –

international and domestic, political and legal – that might explain variation across

polities, across issue-areas, and over time in state support for international law. Although

derived in large part on the basis of the literature on the US and international law, the

framework is intended to be general, and as such applicable to democratic states, to                                                                                                                71 Moravcsik, Why is U.S. Human Rights?, supra note x. 72 Andrew Moravcsik, The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe, 54 INT’L ORG. 217 (2000).

 

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authoritarian states, and to the hybrid polity of the EU. As such, it promises to facilitate

comparison and aggregation of findings between the US and EU cases, across issue-

areas, and across disciplinary divides.

III. Preview of the Articles in this Symposium

This symposium is exploratory in nature. As such, the five empirical articles in

the symposium seek first of all to establish the nature of the dependent variable of US and

EU support for international law, providing a nuanced depiction of each side’s leadership,

consent, compliance, and internalization across various issue areas; and secondly (and

more tentatively) to explain the observed outcomes in terms of the four hypothesized sets

of international and domestic, political and legal independent variables. The first four

empirical articles examine US and EU support for international law in the issue-areas of

human rights, criminal law, trade, and the environment, while the fifth examines a

transversal issue, namely the reception of international law in the respective high courts

of the US and the EU. These five cases, of course, do not constitute a thorough review of

all areas of international law, a full catalogue of which might also include areas such as

the use of force, international humanitarian law, and investment law, among others. We

cannot therefore claim to provide a comprehensive test of our hypotheses about the

causes of US/EU differences. Nevertheless, the five empirical articles collected in this

symposium do cover a sufficiently diverse range of issues as to constitute what political

scientists call a “first cut” or a “plausibility probe,” designed to assess the usefulness of

the framework, the nature of the observed differences between the US and the EU, and

the causes of those differences.

1. Human Rights

In the first empirical article, Başak Çalı examines the case of human rights, where

the European embrace of both UN human rights instruments as well as the intrusive

European Convention on Human Rights (ECHR) is frequently contrasted with US

unwillingness to be bound by most UN human rights treaties, as well as US resistance to

 

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internalizing the few human rights treaties that it does ratify.73 Overall, Çalı finds that the

conventional contrast between the US and the EU is broadly correct, but disaggregating

each side’s support in terms of the four dimensions brings the contrasts into sharper focus

while also identifying several transatlantic similarities, including a general preference in

both the US and the EU to “upload” their respective human rights traditions to the global

level, as well as a reluctance by domestic courts to internalize UN human rights law

directly into the domestic legal order.

Beginning with the US, Çalı notes that evidence of US leadership is profoundly

mixed. On the one hand, the US has consistently championed human rights in its

bilateral diplomacy, yet on the other hand the US has been far more reticent in advocating

the creation of new international human rights law that might intrude on the American

constitutional order. Reflecting this reticence, the US record of consenting to IHRL is

checkered at best: Among the nine core UN human rights treaties, the US has failed to

sign three, signed but failed to ratify three others (the Convention on the Rights of the

Child, CEDAW, and most recently the Convention on the Rights of Persons with

Disabilities) after bitter ratification debates, and ratified three others only to hedge US

acceptance with reservations. The US has also failed to consent to any individual

complaints provisions under UN conventions, or to the jurisdiction of the Inter-American

Court of Human Rights. US compliance with human rights law has generally been high,

Çalı finds, but much of this compliance has taken the form of “compliance as

coincidence,” with all branches of the US government demonstrating considerable

resistance to internalizing IHRL: not only have successive US presidents and Congresses

explicitly specified that international human rights treaties are non-self-executing, but US

courts have demonstrated a similar reluctance to give direct effect to international, as

opposed to US constitutional, rights. The picture that emerges is one of a US that has

been a traditional and strong champion of international human rights, with a strong record

                                                                                                               73 Başak Çalı, Comparing the Support of the EU and the US to International Human Rights Law: Worlds too Far Apart? 13 INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW 4, forthcoming.

 

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of domestic human rights protection, while remaining at best ambivalent about leading,

consenting to, or internalizing international human rights law.

The traditional contrast to the US is an EU that has wholeheartedly embraced both

global and regional human rights law. With the caveat that the EU as such has until

recently been unable to participate as a party to most international human rights

agreements, Çalı finds that EU member states have by and large embraced IHRL, in line

with conventional views. She finds a generally strong record of leadership from EU

member states, and the EU itself has more recently used its diplomatic and economic

leverage to campaign for third-party ratification of and compliance with human rights

treaties. EU member states have also shown a much greater willingness to sign and ratify

UN human rights treaties, and in many cases to accept the right of individual initiative

under those treaties, than the US. Like the US, she finds, European countries have in

many cases adopted reservations to individual treaties, but these reservations tend to be

narrower in scope. Also like the US, European compliance has been high, and EU

countries have generally gone further than the US in terms of altering domestic laws and

constitutions to internalize IRHL, although at the European level she finds that the ECJ

rarely references international (as opposed to European) human rights law.

Turning from the broad contrast between the US and the EU to the independent

variables that might explain the contrast, Çalı finds multiple causes – domestic and

international, political and legal – for US reticence and for Europe’s relative embrace of

IHRL. At the international level, she finds that the US war on terrorism has contributed

to human rights violations that constitute the primary exception to an otherwise strong

record of compliance; while the international-legal structure of universal-membership,

sovereign-equality human rights negotiations help to explain US failures to “upload” its

domestic human rights laws to UN treaties. The strongest influences on US policy,

however, appear to be domestic, both political and legal. Here, Çalı finds that all three

hypothesized domestic-political factors appear to matter, including US political culture

(e.g., the US as a “conservative nation” with little tradition of economic and social

rights), party politics (with right-wing Republicans being particularly resistant to US

 

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commitment to IHRL), and interest-group pressure (particularly, in several cases, from

the Christian right). And she similarly finds that all of the proposed domestic

constitutional factors – including the specificity of the US human-rights tradition, as well

as US federalism and the high threshold for ratification of treaties by the Senate – help to

explain opposition by the US to ratification and internalization of IHRL.

In the European case, Çalı finds international factors to be relatively less

important: the EU’s rise to great power status, she argues, has facilitated the emergence

of EU leadership, but does not explain that leadership. Here, she finds that domestic

political ideology matters, with EU discourse generally embracing human rights, the rule

of law, and the virtues of multilateralism. She nevertheless argues against simplistic

identity-based accounts which overstate the role of broad political culture, and points

instead to another variable missing from the overall project framework, namely EU

member states’ decades-long embeddedness in the ever-deeper and more constraining

regional human rights order of the ECtHR. Hence, while the contrast between the US

and the EU is indeed real, she finds, its sources cannot be reduced to simple transatlantic

differences in culture or identity, but are instead complex, multi-causal, and path-

dependent.

2. The International Criminal Court

In the second article, Martijn Groenleer undertakes a detailed case study of US

and EU approaches to the negotiation and implementation of the 1998 Rome Statute

creating the International Criminal Court (ICC).74 The ICC, like human rights, is an

iconic, much-cited instance of contrasting US/EU attitudes towards international law,

with the US first resisting ratification of the Rome Statute, and later virulently opposing

the establishment of a Court supported by the EU and much of the rest of the world.

Groenleer does indeed find a striking contrast between the US and the EU, largely

                                                                                                               74 Martijn Groenleer, The United States, the European Union, and the International Criminal Court: Similar Values, Different Interests? 13 INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW 4, forthcoming.

 

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supporting the conventional wisdom, although like Author 1 he also finds interesting

nuances on the standard account when disaggregating “support” into four discrete

dimensions.

Looking first at the US, Groenleer finds that the US did exert diplomatic

leadership during the Clinton years, seeking a Court that would be largely subservient to

the UN Security Council, but this position was seen as substantively weakening the Court

by other parties, and the US ultimately lost on this and other points in negotiations. In

terms of consent, the US under Clinton initially signed the Rome Statute in order to

remain engaged as the new Court moved towards its establishment, but, facing strong

opposition from both Congress and the Pentagon, Clinton made no effort to bring the

treaty up for ratification. The position of the US later hardened dramatically under

George W. Bush, who famously “unsigned” the Rome Statute, followed by a dramatic

campaign in which the US pressured other states to sign agreements promising not to

surrender US nationals to the Court, and adopted Congressional legislation authorizing

military action to free any US soldier held at the ICC, the so-called “Hague Invasion

Act.” US opposition to the Court softened somewhat under President Obama, but the

Obama administration has made no move to ratify the Rome Statute, and hence the

questions of compliance and internalization remain moot.

The EU, by contrast, is widely seen as a strong supporter of the ICC, and

Groenleer finds support for this view, but with important qualifications. In terms of

leadership, for example, the EU since 1998 has actively campaigned for third parties to

sign and ratify the Rome Statute, yet Groenleer also finds that the EU was initially

divided during the ICC negotiations in the 1990s, with France and the United Kingdom –

like the US – initially seeking a less independent court more closely tied to the UN

Security Council. Only over the course of months did the French and British overcome

concerns from their respective ministries of defense and join the so-called EU-13 in

supporting the final compromise that emerged from the Rome negotiations. Since the

adoption of the Statute, however, Groenleer finds that the EU as such has been a force for

 

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unity among the member states, all of which have signed, ratified, and (for the most part)

internalized the requirements of the treaty in their respective legal orders.

These subtle differences between the US and the EU, as well as among countries

within the EU, are suggestive as to the causes of transatlantic differences. The initial

reticence shown by the French and British, as well as the US, for example, points to the

significance of international-political factors, including the special responsibilities and

vulnerabilities of all three great powers, with large numbers of troops stationed in conflict

and peacekeeping actions all over the world. International-legal factors also initially

linked the US, the UK and France as permanent members of the UN Security Council,

while the universal-membership, sovereign-equality rules governing the negotiation of

the Rome Statute helped explain why these states’ minority views did not prevail.

Turning to domestic factors, Groenleer also finds some evidence that party

politics matters in several countries, with parties of the left more open than those of the

right to ICC membership in both the US and the UK. By contrast, domestic legal and

constitutional factors, which were so important in the human rights case, appear less

important in the ICC case. In sum, similar factors – great-power responsibilities, P5

membership, and party politics – can be seen operating in the US case and in at least

some European countries, suggesting that the two sides do not inhabit different normative

universes, and that the stereotypical American exceptionalism and European

multilateralism are too blunt to explain the variations observed within as well as across

the US and EU.

3. International Environmental Law

The third empirical article, by R. Daniel Kelemen and Tim Knievel, examines US

and EU approaches to international environmental law, with a special focus on

multilateral environmental agreements (MEAs).75 Here again, as in the previous two

                                                                                                               75 R. Daniel Kelemen and Tim Knievel, The United States, the European Union, and International Environmental Law: The Domestic Dimensions of Green Diplomacy, 13 INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW 4, forthcoming.

 

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papers, the authors find a striking contrast between US and EU behavior, with one

important caveat, which is a substantial change over time. As the authors show, the US

was during the 1970s and into the early 1980s the global leader, both substantively and

diplomatically, in the making of MEAs, with the EU at best following and sometimes

resisting. By the 1990s, however, the US withdrew from global environmental

leadership, while the EU stepped forward, in a phenomenon that David Vogel famously

referred to as “ships passing in the night.”76

Breaking each side’s behavior down into the four dimensions of support in the

framework, Kelemen and Knievel show that for several decades the US the adopted the

world’s most stringent environmental regulations, and took the lead in negotiating new

MEAs such as the 1987 Montreal Protocol to protect the ozone layer. Having done so,

moreover, the US signed and ratified nearly every important MEA from the 1970s

through the early 1990s, and frequently internalized the requirements of those agreements

into domestic law. The 1990s, however, marked a turning point, after which the US

largely withdrew from global leadership, and just as importantly from consent, failing to

ratify the majority of MEAs adopted since then, including most notably the 1997 Kyoto

Protocol on climate change. This failure to consent, in turn, rendered moot the questions

of compliance and internalization.

By contrast, the EU emerged in the 1990s as both a substantive leader, adopting

ever more strict domestic regulations, and a diplomatic leader, pressing with particular

conviction for the adoption of binding global climate-change rules. The EU and its

member states, moreover, have demonstrated throughout a consistent record of

contenting to, complying with, and internalizing global environmental regulations.

How can this dramatic switch in US/EU positions over time, be explained? On

this point, Kelemen and Knievel are unequivocal, arguing that “the most convincing

explanation for US and EU international environmental policies – and for the fact that the

US retreated from leadership while the EU asserted it – can be found in the bottom left

                                                                                                               76 Vogel, Ships Passing in the Night, supra note x.

 

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cell, in the realm of domestic politics.” More specifically, the author puts forward a

domestic political economy argument that attributes the observed differences and their

timing to the changing interests and influence of economic and environmental interest

groups. In the US, environmental groups from the early 1970s successfully pressed for

the adoption of strict new environmental regulations, which businesses then sought to

upload to the United States’ competitors through MEAs. By the early 1990s, however,

US environmental regulations had reached their high-water mark in the face of opposition

from business interests; subsequently US environmental leadership, as well as

willingness to ratify a string of new MEAs, retreated as well. These interest-group

changes were magnified by the increasingly unattainable threshold of a two-thirds

majority for treaty ratification in the Senate.

In the EU, by contrast, environmental interests were less influential, and

environmental policies less ambitious than the US, until the 1980s. During that decade,

environmental interests exerted increasing pressure on governments, both directly and

through the breakthrough victory of Green parties in various European countries.

Meanwhile, the EU’s push to complete the internal market prompted the adoption of

continent-wide environmental regulations which harmonized upwards toward German

and other northern European standards. By the early 1990s, the EU had emerged as a

major economic and regulatory power, and sought to externalize its high domestic

standards to the rest of the world. The result is an EU that exerts consistent

environmental and diplomatic leadership, pressing for strict global environmental

standards and consenting to, complying with, and internalizing those standards. In sum,

the contrast between the US and the EU in the environmental realm today is real, but the

nature and the timing of the contrast can be explained, not by a largely static political

culture, but rather by changing environmental and business interests in the two polities.

4. International Trade Law

The fourth empirical paper, by Jappe Eckhardt and Manfred Elsig, examines an

issue-area, international trade law, where the conventional wisdom of the EU as a leader

 

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and the US as a scofflaw fails to hold.77 Instead, the trade realm is one in which the US,

having emerged as a global leader in multilateral trade liberalization in the late 1940s,

continues to exercise that leadership, albeit more selectively, while the EU has emerged,

since the 1980s single-market project, as a similarly selective leader in global trade law.

The story of international trade law is complicated, however, by the fact that the global

trade regime exists alongside an ever-growing number of preferential trade agreements

(PTAs), pioneered by European countries from the 1950s and only belatedly pursued by

the US. In purely legal terms, both multilateral WTO agreements and bilateral or

plurilateral PTAs represent legal agreements, yet there is a debate about whether PTAs

advance the aims of global trade liberalization (the “building blocks” position) or rather

divert trade as well as diplomatic energy from global trade liberalization to

discriminatory trade blocks (the “stumbling blocks”) position. Hence, whether the EU’s

long-time pursuit of PTAs, and the recent US adoption of the practice, represents the

progressive development of international law (and hence, “support”), or a distraction

from it, is open to debate.

Putting this concern to one side, Eckhardt and Elsig disaggregate US and EU

international trade policies into the four dimensions of leadership, consent, compliance

and internalization, finding considerable similarities between the US and the EU, as well

as telling nuances that point toward possible explanations for the observed outcomes. In

terms of leadership, they note the long-standing tradition of post-war US leadership in the

trade realm, particularly with respect to multilateral trade agreements. The EU, by

contrast, pursued a largely defensive trade policy through the 1980s, dragging its feet on

multilateral trade negotiation while pursuing in its PTAs the sort of hub-and-spoke

bilateralism typically associated with the US. Corresponding with the completion of the

internal market in the late 1980s, however, the EU emerged as a global trade leader

during the Uruguay Round of the GATT. Over the past decade, the US and EU have

                                                                                                               77 Jappe Eckhardt and Manfred Elsig, Support for International Trade Law: The US and the EU Compared, 13 INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW 4, forthcoming.

 

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displayed broadly similar leadership profiles, exerting tepid leadership in the Doha

Development Round and pursuing PTAs with each other and with other potential trade

partners. Both sides, moreover, have shown high levels of consent, signing and ratifying

a wide range of trade agreements even in the face of domestic opposition. Turning from

consent to compliance, Eckhardt and Elsig note that compliance rates for both sides are

generally high but not perfect, and they identify a telling pattern in the cases brought

against each under the WTO Dispute Settlement Understanding: the US and EU engage

in different kinds of violations, with US disproportionately targeted for trade remedies

cases (e.g. antidumping and safeguards), while EU has been disproportionately subject to

challenge for technical barriers to trade (TBTs) and for sanitary and phytosanitary (SPS)

regulations that restrict trade. Finally, the authors find similarities in the limited

internalization of WTO trade law into each side’s domestic legal order, with the ECJ

joining US courts in denying WTO trade law direct effect within the EU legal order.

How can we explain both the broad similarities in contemporary US and EU trade

policies, as well as nuanced differences? Here, Eckhardt and Elsig, like Kelemen and

Knievel, point primarily to domestic political factors, and in particular to the influence of

economic interest groups. In the US, they argue, export-oriented interests have

consistently pressed for multilateral trade negotiation and secured the ratification of

ambitious international trade agreements, while import-competing interests have pressed

for protection, helping to explain the pattern of safeguard and antidumping challenges

from the WTO. In the EU, meanwhile, import-competing interests dominated European

trade policy from the 1940s through the 1970s, explaining EU defensiveness during those

decades; by the 1980s, however, export-oriented interests led to a more liberal EU trade

policy and global leadership, while the influence of the remaining import-oriented groups

explained the Union’s continuing protectionist policies in areas such as audiovisual and

agriculture. Domestic interests, together with the increasing power and preferences of the

European Parliament, also explain the increase in trade-restrictive regulations that have

led to the most conspicuous cases of EU noncompliance with international trade law.

 

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5. Internalization of International Law in US and EU High Courts

The fifth and final empirical article in the symposium, by Gráinne de Búrca,

departs from the format of the issue-area case studies in favor of a transversal analysis of

one dimension of support, namely internalization, focusing on the reception of

international law by the high courts of the US (the Supreme Court) and the EU (the

ECJ).78 As in the symposium overall, she confronts and interrogates a conventional

wisdom in which the US Supreme Court sharply resists internalization of international law,

while the ECJ takes a more open approach, accepting international law as an integral part of

EU law.

Very much in the spirit of this symposium, de Búrca disaggregates the variable of

“internalization” into five discrete dimensions: (1) whether the court accords treaties

direct effect in the internal legal order; (2) the status and effect that the court gives to

customary international law; (3) whether the court defers to the interpretation of treaties

or custom by foreign courts or international courts; (4) whether the court attempts to

interpret domestic law in accordance with international law; and (5) whether the court

gives effect to general principles of international law or IO decisions.

To get at these five questions, de Búrca undertakes an exhaustive analysis of 42

Supreme Court decisions and 124 ECJ decisions citing international law over a ten-year

period from 2002 to 2012. Her findings, like those of the other papers in this symposium,

reveal “a significantly more nuanced picture than conventional assumptions of a skeptical

Supreme Court and an internationalist EU Court might suggest.” In terms of quantitative

findings, her data demonstrate striking similarities, rather than differences, across her five

dimensions: “[B]oth courts in fact chose to internalize international law norms – treaty

provisions as well as customary norms, and by interpretative reconciliation much more

than by direct enforcement – in roughly the same proportion of the international law

cases they heard.”

                                                                                                               78 Gráinne de Búrca, International Law before the Courts: The EU and the US Compared, 13 INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW 4, forthcoming.

 

  45

In addition to her quantitative comparison of the jurisprudence of the two courts,

de Búrca undertakes a more focused qualitative analysis of each. In the case of the

Supreme Court, she analyzes three primary lines of cases during the 2002-2012 period

(cases dealing with the VCCR, those dealing with the Alien Tort Statute, and those

interpreting the laws of war post-9/11), finding that “the Supreme Court has not

consistently resisted or blocked the internalization of international law, and cannot

accurately be described as wholly skeptical towards the application of international law

as part of US law.” Examining the ECJ cases, by contrast, she finds that “the approach of

the EU Court of Justice has changed in recent years from an earlier and an exceptionally

open approach which treated international law as presumptively an integral part of EU

law and enjoying primacy – at least in principle – over EU legislation, to a considerably

more cautious and conditional approach,” which seeks to protect the autonomy of the EU

legal order. De Búrca does not conclude that the ECJ is converging on the Supreme

Court’s approach to international law, yet her analysis appears to nuance, if not falsify,

the conventional contrast between a defiant, dualist Supreme Court, and an open, monist,

and accepting ECJ.

IV. Conclusions

The five empirical articles in this symposium constitute only a preliminary test of

the usefulness of the theoretical framework presented above, and any conclusions derived

from them are necessarily tentative. Nevertheless, their findings taken together both

partially confirm and substantially nuance the conventional wisdom about the nature of

transatlantic differences in attitudes toward international law, and the reasons for them.

With respect to the dependent variable, “support,” we find considerable differences

between the US and the EU, as suggested by the conventional wisdom – but we also

identify important nuances in the nature of those differences, which center primarily

around the dimensions of consent and internalization. In terms of the independent

variables, we find that the roots of US and EU differences are complex and multi-causal,

defying any effort to reduce those differences to single factors such as American

 

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exceptionalism or hyper-power, or the EU’s normative difference. Let us consider each,

briefly, in conclusion.

Beginning with the dependent variable of “support,” our authors confirm an

overarching contrast between the attitudes of the US and the EU towards international

law and legal agreements, as the conventional wisdom would hold – but a close

examination reveals specific patterns across our four dimensions of support, across issue-

areas, and over time. In the US case, we find a mixed record of leadership in the

progressive development of international law, both over time and across issue-areas.

From its high-water mark of the 1940s, American leadership has grown more uneven,

with the US largely relinquishing leadership in areas such as environmental policy and

human rights; pursing a mixed pattern of championing international criminal law but

resisting the ICC; and retaining considerable leadership in trade. Moving from leadership

to consent, it is clear that the US exhibits what we might call a consent or commitment

problem, traceable in history to early US failures to ratify the Treaty of Versailles and the

International Trade Organization, but increasing over time to the current backlog of

dozens of major treaties bottled up in the Senate. By contrast, US compliance with its

international legal obligations is high across most of the issue-areas studied in this

symposium, although the US conduct of the war on terror, not covered in the symposium,

must necessarily qualify that judgment. Finally, and here largely confirming the

conventional wisdom, internalization of international law into the US legal order, though

executive, legislative and judicial decisions, has generally been low. In short, the

behavior of the US demonstrates, not an across-the-board hostility toward international

law, much less rampant noncompliance, but primarily ambivalence about consenting to

and internalizing international legal commitments in specific areas.

Disaggregating the EU’s record similarly serves to both confirm, but also to

nuance, the conventional view of the Union as a champion of international law.

European countries, and the EU where it is empowered to act, have indeed championed

the progressive development of law in many issue-areas, emerging as global leaders

particularly in the areas of environmental regulation and human rights; EU leadership in

 

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other areas such as trade has been less consistent, and the case of the ICC reveals an

interesting initial divide between France and the UK and other EU member states,

although the Union itself appears to have fostered a convergence of views on this and

other issues. With respect to the dimension of consent, the contrast between Europe and

the US has been stark: in the areas of human rights, environmental regulation, and

international criminal law, as well as others not covered in this symposium, European

countries have demonstrated a greater willingness than the US to commit to international

legal obligations. Nevertheless, the uniformity of European leadership and consent

should not be overestimated: in several issue-areas, some member states (e.g. France

with respect to trade, Poland with respect to climate change, France and the UK with

respect to the ICC) have resisted international legal commitments perceived to clash with

their substantive interests, and in these cases the recalcitrant states have been brought

along primarily through an inventive series of intergovernmental bargains, side-

payments, and burden-sharing agreements. In terms of compliance, the EU’s record of

complying with its international human rights, environmental and criminal-law

commitments has generally been excellent, with only trade demonstrating a pattern of

occasional, and in some cases dramatic, noncompliance with adverse judicial rulings.

Finally, EU countries have generally been more willing to internalize their international

legal commitments than the US, although de Burca’s study suggests that the contrast

between the US Supreme Court and the ECJ is not as stark as it is frequently drawn.

Moving from the dependent to the independent variables, or from characterizing

to explaining the observed differences, it is clear that any causal story must be able to

account not just for a broad-brush transatlantic contrast, but also for the nuanced

variations we observe across the four dimensions of support, across issue-areas, across

countries within Europe, and over time. However tempting it might be to reduce

transatlantic differences to a single master variable, such as the cultural differences

between an exceptionalist America and a normative Europe, or power differences

between a strong, martial US and a weak, postmodern Europe, the fact is that such

monocausal amounts are too blunt to explain the nuanced patterns that we observe within

 

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as well as between the US and the EU. Any convincing account of US/EU differences

will in all likelihood have to be complex and multicausal. How, then, do each of our four

sets of independent variables fare in these studies?

Starting at the international level, it is clear that international-political factors such

as power are significant: the broad power disparities between the US and the fragmented

European continent in the immediate post-war period, for example, help explain the

leading role of the US, and the supporting role of European countries, in crafting the

post-World War II liberal order. Seven decades later, both the US and the EU are leading

economic powers, providing both with the opportunity to lead, but limiting the ability of

power differentials to explain the observed differences among them. With respect to

what we might call the Ikenberry thesis, that great powers exert disproportionate

influence on international law and therefore have a disproportionate incentive to support

it, the cases examined in this symposium suggest that US “hyper power” does not

necessarily translate into the US getting its way in international law-making. US

preferences were at least partly overridden in the negotiation of dozens of multilateral

agreements, including many human rights treaties, environmental agreements, the design

of the ICC, and many others, helping to explain (at least in part) US refusal to ratify those

agreements, as well as frequent US resort to RUDs. By contrast, another power-based

hypothesis, emphasizing the “special responsibilities” that come with unparalleled US

military power, appears to have been significant in explaining differences between the

US and Europe (and to some extent within Europe) with respect the ICC as well as the

use of force, humanitarian law, and arms control – but not in areas of law that regulate

primarily domestic conduct, such as human rights, trade, and the environment. Overall,

therefore, it appears that great power, while providing an opportunity to lead, is

consistent with either hegemonic leadership or a Gulliver-like resistance to being tied

down by international legal commitments. The US in particular has demonstrated both

tendencies – leader and Gulliver – over time and across different issue-areas, suggesting

that we need to look elsewhere to understand its varying choices.

 

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Turning to the international-legal secondary rules that govern the making,

interpretation and enforcement of primary legal rules, it is clear that factors such as the

frequent choice of universal-membership, sovereign-equality forums for law-making

have also been significant. Across all the issue-areas covered in this symposium, as well

as others, the decision to pursue broad multilateral agreements in universal-membership

forums required both the US and European countries to advocate for and defend interests

and values that are often in a structural minority in forums dominated by the global south.

Indeed, the structure of multilateral negotiations, which can reduce the US to a single

voice among nearly 200 states, may explain why US military and economic power has

not translated consistently into success in negotiating the terms of international

agreements. By contrast, Sabrina Safrin argues in a provocative article, the EU, by virtue

of its hybrid nature, frequently enjoys the ability to negotiate as a single great power,

while at the same time enjoying 28 votes in the adoption of the final treaty, as well as

ubiquitous membership on the committees where much of the substance of multilateral

treaties is drafted.79 If this is correct – and it is worth noting that Safrin does not

substantiate her claim that the EU and its members “dominate” international law-making,

despite constituting a distinct minority in multilateral forums80 – then the international-

legal structure of multilateral treaty negotiations may help to explain the resulting

contrast between US and EU attitudes towards multilateral treaties. This is a compelling

claim, but our authors find no consistent evidence that US-EU differences in negotiating

power in multilateral forums explain the differences between them on the resulting

treaties. For this reason, most of the authors in the symposium turn primarily to domestic

political and legal factors to explain those differences.

Under the rubric of domestic politics, we come first to theories that explain

transatlantic differences in outcomes to broad differences in ideology or political culture,

reviewed above under the rubrics of American exceptionalism and Normative Power                                                                                                                79 Safrin, Un-exceptionalism, supra note x, at 1323-41. 80 Ibid, at 1325. Compare Gowan and Brantner, A GLOBAL FORCE, supra note x, who demonstrate that the EU and its members consistently lose a majority of UN votes on human rights issues.

 

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Europe. We do find some evidence for such claims, particularly at the level of discourse.

There are areas, for example, where long-standing and globally idiosyncratic cultural and

religious beliefs – what Moravcsik refers to as the US as a “conservative nation” – have

shaped US resistance to international legal norms and rules, particularly in the area of

human rights. Nevertheless, broad political culture, ideology or identity-based

explanations tend to overpredict a stark US/EU contrast, failing to explain fine-grained

variations across our four dimensions, across issue-areas, or over time. Perhaps for this

reason, the articles in this symposium on trade, the environment, and the ICC do not

highlight broad cultural differences, but focus instead on more fine-grained domestic

factors inside each country.

Several of the papers identify party-political factors as being important in

explaining attitudes towards international legal agreements, particularly in the US.

Partisan differences over support for international legal agreements in are not uncommon

in Europe, but they are particularly stark in the US, where the Republican and

Democratic parties are often bitterly divided in their views toward particular bodies of

international law. Here, we see that the substance of multilateral legal agreements is

often closer to the ideal positions of Democratic Party supporters, and not surprisingly

Democratic Presidents have been more likely to sign, and Democratic legislators more

likely to support and ratify, international treaties in areas such as the environment, human

rights, and criminal law. Republicans, by contrast, have frequently opposed these

agreements, reflecting the views of constituents in the business community as well as the

Christian and neoconservative right, although by the same token Republicans have

generally been more favorable than Democrats towards international trade agreements.81

Given this pattern, we might conclude that Democrats and Republicans do not take

positions towards international law per se, but rather support or oppose specific

                                                                                                               81 For a recent illustration, see the House and Senate votes to ratify US free-trade agreements with Columbia, Panama and South Korea. On the agreement with Panama, for example, only 66 Democrats joined 234 Republicans to vote for ratification of the agreement in the House. Binyamin Applebaum and Jennifer Steinhauer, Congress Ends 5-Year Standoff on Trade Deals in Rare Accord, N.Y. TIMES, 12 October 2011.

 

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international agreements as a function of their issue-specific values and interests. This

view would be consistent with the rational-choice approach summarized by Lisa Martin,

who argues that states do not have “compliance policies” when it comes to international

law, they simply have substantive policies on issues like trade, the environment and

human rights, which translate in turn into support for or opposition to specific legal

agreements.82 Nevertheless, the rhetoric of the contemporary Republican Party, and the

consistency with which Republican Senators have blocked ratification of dozens of

treaties across many issue-areas, does raise the intriguing question whether the

contemporary Republican party does indeed have an “international law policy” of

opposing international legal commitments across the board, independent of their content.

Despite these strong partisan differences in the US, the papers in this symposium

reveal that many of the sources of opposition to and support for international legal

agreements in both the US and Europe are even more fine-grained, with political parties

frequently being split and with interest groups of various types putting pressure on

government officials and legislators to support or oppose discrete legal agreements,

particularly where those agreements might affect domestic laws and policies. The papers

on both trade and environmental law, for example, suggest that US/EU differences can be

explained systematically by the preferences and lobbying activities of economic and

environmental interest groups who lobby governments and legislators to negotiate

specific legal agreements, ratify or not ratify treaties, comply or not comply, and

adjudicate or not adjudicate as a function of their specific interests. Interest-group

pressure in these areas also helps to explain the occasional splits within the Democratic

and Republican parties, where, for example, Democrats from districts with strong export-

oriented interests join Republicans in supporting free trade agreements, while Democrats

from districts dependent on fossil fuels join Republicans in opposing any climate change

regulations favored by the Obama administration. In the area of human rights, economic

interest groups are less significant; instead, we see clear evidence that a strongly

                                                                                                               82 Martin, Against Compliance, supra note x, at 606.

 

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mobilized Christian right in the US has played an important role in blocking ratification

of multiple agreements including CEDAW, the Convention on the Rights of the Child,

and the Convention on the Rights of Persons with Disabilities.83

Nor is this pattern of elected officials following the material and ideational

interests of their constituents limited to the US. In the EU, for example, Poland, with its

heavy reliance on coal, serves as the West Virginia of Europe, resisting the imposition of

deep cuts on CO2 emissions84, while environmental and agricultural groups have lobbied

strongly against EU Commission initiatives to bring the EU into compliance with the

WTO’s judicial ruling on genetically modified foods.85 One key difference we do see

across the Atlantic is the profound importance of the Christian right in the US helping to

explain opposition to UN human rights treaties. The European far right, despite its recent

breakthroughs in European Parliament elections and its strong anti-immigration views,

has largely limited its opposition to European legal institutions, including the EU and the

European Court of Human Rights86, but has not thus far mobilized in a similar fashion

against public international law.

Domestic-political factors, therefore, and in particular interest group and partisan

pressures, emerge as important determinants of the fine-grained differences between the

US and Europe over international law in various issue-areas. Nevertheless, domestic

interests do not translate automatically into policy: they are instead aggregated within

domestic legal and constitutional institutions that can shape and constrain legal outcomes.

We hypothesized above about the potential influence of three domestic-legal features that

might shape attitudes toward international law, namely constitutional rules for treaty

ratification, the federal or unitary structure of government, and the constitutional nature

                                                                                                               83 Nancy L. Cohen, Christian Right Enforces GOP Senators' Vote Against UN Disabilities Treaty, THEGUARDIAN.COM, 6 December 2012. 84 Danny Hakim and Mateusz Zurawik, Poland, Wedded to Coal, Spurns Europe on Clean Energy Targets, N.Y. TIMES, 31 October 2013. 85 Pollack and Shaffer, WHEN COOPERATION FAILS, supra note x. 86 See e.g. Jon Henley, Why is the European Court of Human Rights Hated by the UK Right? THE GUARDIAN, 22 December 2013.

 

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of human rights protection. Our contributors found all three of these to be important,

although to different degrees across different issue-areas. Procedures for treaty

ratification emerge as a significant factor in several areas, particularly with respect to

human rights and the environment, where many treaties that might have secured a simple

majority vote in favor of ratification have instead been defeated or blocked in the U.S.

Senate with its two-thirds threshold. This is not to say that ratification rules are entirely

to blame for the US failure to consent to international treaties: in some cases, such as the

Kyoto Protocol, Congressional opposition to the proposed treaty was overwhelming and a

simple majority threshold would not have helped, while in other areas such as trade the

two-thirds requirement has been skirted through the use of joint congressional-executive

agreements requiring only simple majorities in both houses. Nevertheless, the difficulties

of ratification in the US separation of powers system goes a long way towards explaining

the US consent or commitment problem in many areas. Interestingly, the EU itself, as

opposed to its member states, is governed by a ratification process that is if anything

more demanding than that of the US, requiring supermajorities among the member states

and in some cases approval by the European Parliament. The EU has managed despite

these obstacles to ratify a broad range of international legal agreements, through the types

of side-payments and burden-sharing mechanisms identified above, although the recent

rejection of several treaties by the European Parliament suggests that the EU may be

developing a nascent commitment problem of its own.

Of the remaining constitutional and legal factors, the question of federalism has

proven important in a few areas, such as in the US Supreme Court’s resistance to

applying international legal rules to criminal proceedings in the several US states, but has

not been demonstrated to matter significantly in most issue-areas; while the constitutional

structure of human rights protection helps explain why the US, with its idiosyncratic Bill

of Rights, has proven more resistant to consent to international human rights laws that fit

more easily with the modern human rights provisions of post-war European constitutions.

We have not, in this symposium, sought to test for the importance of other domestic-legal

factors, such as the contrast between monist and dualist legal systems, or broad

 

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differences between authoritarian and democratic regimes, although these and other

domestic institutional factors would surely be important when applying this framework

beyond the US and Europe to the rest of the world.

This brings us, then, to our final point, which is that this symposium marks only

the beginning of a potentially rich research program to understand the nature of, and the

causes of, state support for, ambivalence about, or opposition to international law. Future

studies can and should expand the research collected in this symposium, in two ways.

First, a more thorough attempt to map and explain transatlantic differences can and

should expand the number of case studies beyond those presented here, to include other

areas of law such as the use of force, humanitarian law, the law of the sea, and investment

law, among others. Second, the framework presented here is in principle generalizable

beyond the US and the EU to all kinds of states, including authoritarian as well as

democratic regimes, developing as well as industrialized countries, and weak as well as

strong states. Doing so will require some modification of the framework, but also

promises to shed new light on the nature and sources of state differences toward

international law, and contribute to the growing literature on “comparative international

law.”87

                                                                                                               87 Anthea Roberts, Comparative International Law: The Role of National Courts in Creating and Enforcing International Law, 60 INT'L & COMP. L.Q. 57 (2011).

 

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Appendix: Symposium Table of Contents

1. Mark A. Pollack, Introduction: Who Supports International Law, and Why? The United States, the European Union, and the International Legal Order, 13 INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW 4, forthcoming. 2. Başak Çalı, Comparing the Support of the EU and the US to International Human Rights Law: Worlds too Far Apart? 13 INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW 4, forthcoming. 3. Martijn Groenleer, The United States, the European Union, and the International Criminal Court: Similar Values, Different Interests? 13 INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW 4, forthcoming.

4. R. Daniel Kelemen and Tim Knievel, The United States, the European Union, and International Environmental Law: The Domestic Dimensions of Green Diplomacy, 13 INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW 4, forthcoming. 5. Jappe Eckhardt and Manfred Elsig, Support for International Trade Law: The US and the EU Compared, 13 INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW 4, forthcoming. 6. Gráinne de Búrca, International Law before the Courts: The EU and the US Compared, 13 INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW 4, forthcoming.