Kristina Daugirdas renders an excellent exposition of a particular kind of argument about the development (us economics-oriented folk might say production) of international law. She focuses on the ILC’s Draft Articles on the Responsibility of International Organizations, a measure that some have criticized as premature. The degree of discomfort with the project that IOs have shown, however, might suggest (somewhat paradoxically) that its time has come, if only as a focus of debate. She illustrates the salience of the Draft Articles through the lens of the cholera crisis in Haiti, a matter that the United Nations has handled with all the finesse of a Fortune 500 CEO confronted horrific product liabilities.
Within the terms of her argument, Daugirdas succeeds in establishing her conclusion. The Draft Articles provide a defined and ostensibly neutral set of claims about responsibility and compensation. The absence of clarity in the international legal system about the content of the international law that IOs might violate, thus incurring responsibility, is not an impediment to talking about this. Debates about responsibility can contribute to the definition of primary obligations. Acts of reparation can reinforce the legal, rather than political and moral, nature of the obligation. An important means of inducing potentially responsible actors ‒ IOs ‒ to confront these claims is the impact of their actions on their reputation.
I do not want to push back against any part of Daugirdas’s argument. Rather, I want to use this opportunity to reflect a bit on the value ‒ and limits ‒ of two concepts on which her argument rests. Both transnational discourse and reputation present interesting problems that Daugirdas acknowledges, but understandably does not fully explore. My ultimate goal is to move the goalposts for talking about the processes involved in producing international law.
Transnational discourse. Let me posit that law making and law applying is largely a discursive process involving the manipulation of symbols to achieve verbal communication. In other words, talk matters a lot. This brute fact may frustrate the economically oriented, who usually prefer to look at preferences revealed by actions and may regard discussion as potential disinformation. No competent lawyer, however, can fail to attend carefully to the arguments made in the process of moving towards a legal outcome.
At the same time, those of us who make our living by using words ‒ all academics, but especially legal academics ‒ must guard against the temptation to elevate what we do and love best to the exclusion of messy and sometimes intractable investigations into other evidence. One does not have to be as dismissive of discourse as those who characterize it as “happy talk” to recognize that petitions to the UN, complaints filed in courts, letters written by members of Congress, speeches delivered by officials, the commissioning of committees, articles and op-eds by academics and activists, and the choices of CNN producers in what they cover ‒ all noted by Daugirdas in her excellent analysis of the UN cholera dispute ‒ can obscure as much as they can inform. A whole industry of public relations emerged in the last century to exploit the potential of the new mass media to confuse and distract. We should not limit our understanding of how law is made to the same basic phenomena that enable twitter posts to go viral.
More formally, the key insight of constructivism ‒ that preferences are made, not found ‒ is indisputable, but what follows remains very tricky. People who work in that tradition have yet to come up with generalizable claims that can be subjected to scientific analysis, i.e., are potentially falsifiable. I do not mean to suggest that thick description cannot expand and enrich our understanding of social phenomena, including the production of international law. What I do worry about is that this method requires careful handling to prevent self-indulgence, echo chambering, and the confusion of normative preferences with supposedly objective observation.
In considering the rules of responsibility for international organizations, for example, one fairly can do what Daugirdas does, mainly report about a controversy and suggest some connection between the talk and the evolution of the affected international institution’s response. But only doing this leaves out important considerations. What kinds of accountability will improve the ability of an IO to perform its mission? Those of us interested in transaction-costs economics, steeped in the work of Coase, Simon, Williamson and Ostrom, have something to contribute to that inquiry, if only in framing the right questions to ask. Will society’s indulgence of talkers ‒ activists, lawyers, academics ‒ improve or worsen the fate of the real victims, the Haitians who suffer from cholera? What evidence should we investigate to answer these questions? Do processes of legal norm formation that elide these questions serve us well?
I do not mean to suggest that Daugirdas does not succeed because she does not address these concerns. What I hope, rather, is that as discussion about the production of international law proceeds, everyone involved ‒ leftists and Europeans who might see law and economics as a conservative ploy or alien to legal science as well as progressives hoping to construct a better world ‒ will regard these questions as worthy of their attention, and perhaps even necessary to the project.
Reputation. Daugirdas envisions concerns about reputation as the principle motivation for actions regarding law compliance. She provides a useful review of the literature and gives a fair hearing to critics who argue that reputation has a kind of messiness that complicates its use as a simple explanation for law-abiding behavior. She notes, but does not give as much attention to the matter as I would like, one particular argument, namely that some space may separate legitimacy and legality. I would (and have in my prior work) put the point this way: For purposes of maximizing the value of prospective cooperative projects, a reputation for being a good, cooperative partner may matter more ‒ perhaps much more ‒ than a reputation for strictly adhering to the letter of a commitment. In other words, a reputation for complying with international law might not be nearly as desirable, and therefore nearly as strong a motivational force, as a reputation for willingness to invest in cooperative projects. The two are distinct.
Let me illustrate. Where Daugirdas worked in the State Department’s Office of the Legal Adviser, our mutual boss, John Bellinger, gave a series of speeches addressing the charge that the United States in the post 9/11 world no longer respected international law. He noted that many of elements of that complaint rested not on violations of international law, but on refusals to commit to particular projects, such as the International Criminal Court and the Comprehensive Test Ban Treaty. One of the reasons the United States abstained from these endeavors, as international law surely entitled it to do, was its serious doubts about its ability to comply fully and comprehensively with the obligations they entailed, and a strong desire not to sacrifice international law compliance simply to enjoy the benefits of belonging to a desirable club. What Bellinger described was a salient divergence between cooperation ‒ joining clubs in the hope that evident pitfalls and shortcomings could be elided or ignored ‒ and international law compliance. The U.S. preference for a reputation for upholding international law simpliciter did not help its standing in Europe or elsewhere.
Consider also the arms control project undertaken by the United States and the U.S.S.R. from the late 1960s through the 1970s. Many involved in that process ‒ my own role was always peripheral and mostly unofficial ‒ saw the Soviet counterparty as scrupulous to a fault in upholding the letter of these agreements, but invariably formalist and evasive in terms of performance. The Soviets, in other words, sacrificed cooperation on the altar of legalism. States of the world that might fairly be implied from the letter of an agreement, and conducive to building cooperation and trust, were rejected on the ground that the words did not expressly include them. The arms control agreements did some work, but did not achieve all that might have been possible. More to the point, the distance between treaty compliance and treaty-guided cooperation was apparent and significant.
These examples are not exceptional, but general. They illustrate another problem that international law scholars must recognize and address. Because we like international law, we assume it matters. We in turn define reputation in a way that gives significance to international law, without fully considering factors other than law that might matter to reputation and do more work. This circularity feeds our self-indulgence.
These concerns, let me emphasize, are addressed to the field, not to Daugirdas. This article is most helpful. What I hope to do by moving the goalposts is to steer the conversation. Exactly because international law matters now, exactly because the position of the UN Under-Secretary for Legal Affairs, responding to the cholera petition, that the existence of political and policy matters defeases law, seems so wrong, we must take great care when we talk about law, what it is and how it is made.