The changing face of international law

Nice article on the "growing clout of international law." I've been working on a particular part of the international legal regime as a philosopher interested in the normative and conceptual issues surrounding international treaty-making, specifically using environmental regimes as cases.

One of the key issues is this: treaties - in practice and their analysis - focus on compliance issues. It is generally thought that the way to gauge the success of a treaty is if members comply with its injunctions. But the assumption is also that international treaties fundamentally alter state sovereignty and are thus largely not in the interests of individual states, especially powerful ones. Other states may not have the resources or competence required to comply (analytical and reporting mechanisms, money, expertise, etc.). So, compliance analysts tend to focus on two central issues: 1) capability and measures to increase capability (technology transfer, funding, anti-corruption measures, etc.); and 2) incentive packages for "developed nations" to participate in ways that defray other potential costs.

The assumption is that, apart from lack of capacity, developed nations only participate effectively in treaty-formation when it serves their national interests, and that such interests are fixed a priori. Since perhaps the early 1990s, a small but growing sphere of scholarship on the formulation of norms and interests - the putative front-end part in the process of treaty-formation (that the objectives of the treaty are viewed as good in principle and thus worthy of further development) - has challenged, in my view, this emphasis on back-end compliance. A central challenge, one I think crucial, is the idea that interests are not fixed in advance but are a product of processes of negotiation, bargaining, information-gathering, normative arguments, and so on. This jibes well with some problems I've long studied in philosophy about the nature of normative deliberation, contingency and experience, and experimentalism. And I think it hangs together better empirically.

The question for me is what a refocus on the normative dimension does to issues of compliance as they are usually articulated and studied. Much of this discourse has been dominated by economic and legal analyses - and their standard analytical tools - guided by orthodox international relations ideologies which have blinkered fresh thinking about the evolving international sphere. This blindspot shows up in various forms (including, I believe, in discussions about foreign policy more generally).

We'll have more to say on this, as usual, especially as it forms part of a book I'm writing for publication within the next year or so (once the globalization and torture volumes are wrapped up - more soon on this when they go to press). Check out the article in the meantime.