The Rational and Not So Rational Life of International Law
Russia’s armed attack on Ukraine has made many despair of international law. What is the value of a legal order that has no effective remedy in store against even the most blatant violations? The difference from twenty years ago could not be greater. Prior to the Iraq war, my generation of international lawyers was socialized into the belief that international law had established a largely stable international order that had finally put an end to Europe’s violent past. Global governance seemed to have overcome the burgeoning nationalism of the 19th century. The establishment of the International Criminal Court arguably marked the end of history in the field of international law.
After more than a decade of multiple international crises, pervaded by serious violations of human rights and persistently high levels of economic and social injustice, it would not have needed another war to open our eyes about the insufficiency of the post-1990 international legal order. At least the 2014 invasion of Ukraine, which we covered in a special issue at the time, should have sent us a warning. Now we are left to realize that even in cases so clearly in violation of the most fundamental principles of international law, international law hardly seems to make a difference. In the best case, the discursive constraints of ius contra bellum might allow superpowers to credibly articulate the limits of their dangerous imperialistic aspirations. In the worst case, they merely offer cover to the aggressor to justify the unjustifiable.
In this situation, our special issue on “Bias in International Law” (vol. 23 (2022) issue 3) provides much-needed analysis and differentiation concerning the real-life implications of international law. Our guest editors Veronika Fikfak, Daniel Peat, and Eva van der Zee have brought together a group of scholars applying a range of different methods. They study how international law influences states and other actors in ways that are often implicit rather than explicit, influencing the cognitive, psychological aspects of human nature, rather than the faculty for rational calculus. While one may observe many of the behavioural implications of law within the domestic context, I believe that their significance for international law is elevated due to the lack of centralized enforcement.
In their introduction, the guest editors outline the underlying framework of cognitive and motivational biases. Tapping on the expanding literature in the field, they provide an overview how this impacts the sources of international law, state compliance, and individuals called upon to make decisions about international law. From their angle, one can understand the sources as default rules that structure states’ options, or study compliance with a view to how states see each other, rather than to what they actually do.
A first set of articles aims at revealing cognitive and motivational biases in international law. Moshe Hirsch investigates how regulators discriminate against foreign products due to their cognitive biases. Benedikt Pirker and Izabela Skoczen explore how one may approximate the “ordinary meaning” of international legal rules via experiments. They ultimately vindicate what scholars like Dworkin had established in theory, namely that our understanding of legal terms is guided by moral concepts. Jonathan Kolieb explores an understudied trajectory of international law’s normativity, namely its impact on consumers. It may be one of the scarce good news these day that the verdict of violating international law may hold particular sway over consumers’ decisions. Runar Lie concludes this set with a perspective on the making of international investment law. Deriving a fairly coherent body of norms from scattered treaty provisions required a lot of work on language and perceptions by the lawyers involved.
The second set of articles looks for remedies against harmful or problematic biases. In light of the biases pervading international dispute settlement, Eva Nissoti makes the case for mediation as a process to identify and mitigate biases. In this focus on procedures, she is joined by Eva van der Zee, who proposes some international guidance on the use of expert opinions in environmental impact assessments.
The special issue concludes with some soul-searching concerning the limits of behavioural approaches. As Ezgi Yildiz and Umut Yüksel show with large-n dataset on continental shelf delimitation cases, it is sometimes incredibly difficult to find out whether states choose their course of action due to cognitive or motivational biases or out of sheer self-interest. The precise workings of international law may therefore remain hidden to us.
It seems that certainties are few and far between these days. Except for one, that is: Our annual call for special issue proposals is out. The deadline expires on 31 July 2022. Do take us into consideration, please. We know you have a lot to say and write about.
I conclude by thanking our board member Niels Petersen for his kind cooperation in bringing this special issue to fruition. Moreover, I believe you will all join me in expressing my sincerest gratitude to the outgoing student editorial team, headed by Executive Editor Scott Ingram and Managing Editor Zahra Asadi from the Washington and Lee University School of Law. They are the backbone of our journal, and if you have ever published with us, you will know what this means. Where there is Abschied, there is always Willkommen, as immortalized by Goethe. May I therefore ask you to welcome with me the new team led by Cate Bulger as Executive Editor and Natalia Micheli as Managing Editor.
On behalf of the Editors in Chief, as always, I wish you happy reading.