Constructing an International Community

Monica Hakimi

doi:10.1017/ajil.2017.22

¹ The phrase “international community” is often used casually, as rhetorical shorthand for the set of actors who mingle across national borders. See Kritsiotis, Dino, Imagining the International Community, 13 Eur. J. Int'l L. 961, 964 (2002)CrossRef Google Scholar (describing the use of the phrase as a “rhetorical device” or “convenient descriptive harness” for “the expanding set of ‘persons’ identified in orthodox accounts of the subjects of international law”). Beyond that usage, the phrase is abstract and lacks much accepted content. See Steven R. Ratner, The Thin Justice of International Law 59–60 (2015) (“For the most part, international lawyers assume the existence of an international community of states …” or have “at best a meager understanding [of it.]”); Cohen, Harlan Grant, Finding International Law, Part II: Our Fragmenting Legal Community, 44 N.Y.U. J. Int'l L. & Pol. 1049, 1065 (2012)Google Scholar (“The term community is vague and over-used; it seems deeply weighted with meaning yet utterly abstract.”). My goal is not to give the phrase more precise content but rather to address the conceptual question of how global governance associations—what I am calling international communities—are established and maintained.

² Tomuschat, Christian, Obligations Arising for States Without or Against Their Will, 241 Recueil des Cours 197, 227 (1993)Google Scholar.

³ See also, e.g., Hedley Bull, The Anarchical Society 13 (2d ed. 1995)Google Scholar (“A society of states (or international society) exists when a group of states, conscious of certain common interests and common values, form a society in the sense that they conceive themselves to be bound by a common set of rules in their relations with one another, and share in the working of common institutions.” (emphasis omitted)); Thomas M. Franck, Fairness in International Law and Institutions 10 (1995) (arguing that the international community is grounded in a set of “shared moral imperatives and values”); Lassa Oppenheim, International Law: A Treatise 10 (Roxburgh, Ronald F. ed., 3d ed. 2005)Google Scholar (“[T]hese common interests, and the necessary intercourse which serves these interests, have long since united the separate States into an indivisible community.”); Thomas Weatherall, Jus Cogens: International Law and Social Contract 25 (2015) (“The idea of ‘community’ introduces the conceptualization of a collective with shared interests and values.”); Fassbender, Bardo, The United Nations Charter As Constitution of the International Community, 36 Colum. J. Transnat'l L. 529, 566 (1998)Google Scholar (“The international community thus is a community based on an agreement on rules.”).

⁴ Simma, Bruno, From Bilateralism to Community Interest in International Law, 250 Recueil Des Cours 219, 245 (1997)Google Scholar; see also, e.g., Villalpando, Santiago, The Legal Dimension of the International Community: How Community Interests Are Protected in International Law, 21 Eur. J. Int'l L. 387, 394 (2010)CrossRef Google Scholar (arguing that these principles evince a “trend towards the protection of community interests”).

⁵ E.g., Kritsiotis, supra note 1, at 990–91 (arguing that any international community is shallow if it repeatedly fails to realize values that it defines as foundational); Trimble, Philip R., International Law, World Order, and Critical Legal Studies, 42 Stan. L. Rev. 811, 816 (1990)CrossRef Google Scholar (book review) (arguing that, because “we have no common, generally accepted world ideology,” we have not one international community but “many international communities … with their own distinctive values, practices, and belief systems”); Andreas Paulus, International Community, Max Planck Encyclopedia of Pub. Int'l L., para. 28 (last updated Mar. 2013) (“[I]t appears that in the view of the diversity of contemporary international law, ‘fragmentation’ rather than community has become the key term to describe contemporary international society.” (citation omitted)).

⁶ Krasner, Stephen D., Structural Causes and Regime Consequences: Regimes as Intervening Variables, in International Regimes 1, 2 (Krasner, Stephen D. ed., 1983)Google Scholar (defining “regimes” as “sets of implicit or explicit principles, norms, rules, and decision-making procedures around which actors’ expectations converge in a given area of international relations” (emphasis added)).

⁷ Anne-Marie Slaughter, A New World Order 3, 15 (2004) (defining “networks” as groups of governmental officials who share “specific aims and activities” and claiming that these networks portend a “new world order … that institutionalizes cooperation and sufficiently contains conflict”).

⁸ Ian Johnstone, The Power of Deliberation: International Law, Politics and Organizations 42 (2011) (defining as a legal “interpretive community” those who “share a perspective and way of understanding the world”).

⁹ E.g., Jutta Brunnée & Stephen J. Toope, Legitimacy and Legality in International Law 80 (2010) (arguing that, as the participants in a “community of practice” “coalesce[] around the emergence of common histories, values or norms,” a “deeper sense of community” develops); Cohen, supra note 1, at 1069 (“[A]n international legal community is defined by the rules of legitimate lawmaking that it shares.”); Haas, Peter M., Introduction: Epistemic Communities and International Policy Coordination, 46 Int'l Org. 1, 3 (1992)CrossRef Google Scholar (defining as an “epistemic community” the actors who are unified by shared beliefs, notions of validity, and practices).

¹⁰ This is evident even in the language that is used to describe these communities. See supra notes 6–9 and corresponding text; see also infra Part II.A.

¹¹ See infra notes 27, 31–37 and corresponding text.

¹² E.g., Posner, Eric A. & Sykes, Alan O., International Law and the Limits of Macroeconomic Cooperation, 86 S. Cal. L. Rev. 1025, 1033–34 (2013)Google Scholar; Verdier, Pierre-Hugues, Transnational Regulatory Networks and Their Limits, 34 Yale J. Int'l L. 113, 125–26 (2009)Google Scholar.

¹³ A few scholars have hinted at a similar claim but have not explored it or its implications in any depth. Most notably, Martti Koskenniemi has said that “a universal community is not only presumed but constructed by an international law that precisely due to its indeterminacy” invites conflict about its meaning and objectives. Koskenniemi, Martti, Legal Universalism: Between Morality and Power in a World of States, in Law, Justice, and Power: Between Reason and Will 46, 62 (Cheng, Sinkwan ed., 2004)Google Scholar. Koskenniemi's claim is that international law gives political adversaries a shared foundation for arguing as equals and “in terms of an assumed universality.” Koskenniemi, Martti, What Is International Law For?, in International Law 57, 77 (Evans, Malcolm D. ed., 2d ed. 2006)Google Scholar. Yet Koskenniemi does not elaborate on his claim, except to say that it supports formalism in, and enables the emancipation through, international law. See id. Likewise, Amy Kapczynski uses the access to knowledge movement to show that “engagement with law can bring actors locked in a struggle over law into alignment with one another” and thus can “have an integrative effect on social actors.” Kapczynski, Amy, The Access to Knowledge Mobilization and the New Politics of Intellectual Property, 117 Yale L.J. 804, 809–10 (2008).CrossRef Google Scholar Kapczynski concludes her study by suggesting that legal struggles might help create global polities. Id. at 881. But she does not pursue that possibility or address it beyond the context of the access to knowledge movement. Finally, Samantha Besson suggests that “[i]t is time to go beyond ‘dispute-settlement’-type conceptions of the relations among independent albeit integrated legal orders and realise the integrating and community-shaping capacity of conflict.” Samantha Besson, The Morality of Conflict 534 (2005). Besson's discussion of this point—particularly, of its relevance to modern international law—is brief.

¹⁴ The basic insight that global interactions can shape the participants’ identities and behavior finds support in constructivist theories on international relations and international law. See Alexander Wendt, Constructing International Politics, Int'l Security 71–72 (1995) (“[T]he fundamental structures of international politics are social rather than strictly material … and … these structures shape actors’ identities and interests… .”); see also Pierre Bourdieu, Language and Symbolic Power 42 (Polity G. Raymond & J. Thompson trans., 1991) (describing legal language as “creative speech which brings into existence that which it utters”).

¹⁵ Philip Bobbitt, Constitutional Fate 94 (1982). In Constitutional Fate, Bobbitt described ethical argument as resting on “a characterization of American institutions and the role within them of the American people.” Id. at 94–95. Bobbitt also advanced, as a particular vision of the U.S. constitutional ethos, the commitment to limited government. Id. at 230. He and others have since recognized that that vision is too narrow and not the only plausible way to characterize the American ethos. See Bobbitt, Philip, Reflections Inspired by My Critics, 72 Tex. L. Rev. 1869, 1937 (1994)Google Scholar; see also Primus, Richard, Response, The Functions of Ethical Originalism, 88 Tex. L. Rev. See Also 79, 80–81 (2010)Google Scholar.

¹⁶ This view is perhaps most evident in discussions of the efficacy of international law. International law's efficacy is widely defined in terms of whether it advances a prescribed policy, as if that is the only plausible metric for assessing its impact. See, e.g., Mary Ellen O'Connell, The Power and Purpose of International Law: Insights from the Theory and Practice of Enforcement 11 (2008) (“[S]anctions … help to ensure that international law compliance is occurring on a level sufficient to consider it effective law.”); Andrew T. Guzman, How International Law Works: A Rational Choice Theory 13, 25, 29 (2008) (presenting as a theory of “how international law works” a theory about states’ compliance and attainment of shared gains); Jens David Ohlin, The Assault on International Law 98, 101 (2015) (asserting that the “whole point of international law is to create a structure whereby the cost of shifting strategy away from compliance becomes higher than it would be without legal regulation in a particular area,” and that “[t]he status of international law as law is seriously called into doubt” if it does not do that work).

¹⁷ On the point that an international legal practice is inherently interactional, see Brunnée & Toope, supra note 9.

¹⁸ See sources at supra notes 2–5. There is a notable exception. Myres McDougal, Michael Reisman, and Andrew Willard explain that a “world community” is created through interdependence: “‘Community’ designates interactions in which interdetermination or interdependence in the shaping and sharing of all values attain an intensity at which participants in pursuit of their own objectives must regularly take account of the activities and demands of others.” McDougal, Myres S., Reisman, W. Michael & Willard, Andrew R., The World Community: A Planetary Social Process, 21 U.C. Davis L. Rev. 807, 809 (1988)Google Scholar. These authors contend that, once people recognize that they are interdependent, they do not necessarily act in the common interest, but they make and assess claims in terms of a common interest. See id. at 810, 834, 846. That account of an international community is consistent with my own, though it does not specifically focus on conflict's constitutive role.

¹⁹ Ferdinand Tönnies, Community and Civil Society 52 (Harris, Jose ed., Hollis, Margaret trans., 2001)Google Scholar.

²⁰ Id.

²¹ See, e.g., Tomasz Widłak, From International Society to International Community: The Constitutional Evolution of International Law 16 (2015), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2707814 (distinguishing a “weaker, more pluralistic” society from a community that has “a thicker and denser layer of common values, interests and norms” and that “reach[es] common goals in the interest of the whole”); Simma, supra note 4, at 245 (“[T]he element which distinguishes a ‘community’ from its components is … the representation and prioritization of common interests as against the egoistic interests of individuals. A mere society (Gesellschaft) on the contrary, does not presuppose more than factual contacts among a number of individuals.”).

²² Brierly, James Leslie, The Rule of Law in International Society, in The Basis of Obligation in International Law and Other Papers by the Late James Leslie Brierly 250, 252 (Lauterpacht, Hersch ed., 1958)Google Scholar.

²³ Id. at 254.

²⁴ Abi-Saab, Georges, Whither the International Community?, 9 Eur. J. Int'l L. 248, 251 (1998)CrossRef Google Scholar.

²⁵ Id. at 265.

²⁶ See, e.g., Keohane, Robert O., The Demand for International Regimes, 36 Int'l Org. 325, 334 (1982)CrossRef Google Scholar (“Regimes are developed in part because actors in world politics believe that with such arrangements they will be able to make mutually beneficial agreements that would otherwise be difficult or impossible to attain.”).

²⁷ E.g., Guzman, supra note 16, at 13, 25, 29 (presenting a theory of how international law fosters compliance with shared norms and thereby facilitates the attainment of mutual gains); Barbara Koremenos, The Continent of International Law 4–10 (2016) (arguing that different institutions have unique design features to overcome specific obstacles to the shared agendas); Ohlin, supra note 16, at 97, 103 (explaining that participants “gravitate toward a particular legal norm and choose ‘compliance’ as their strategy” because “[d]efectors … lose all the benefits of cooperation”); Shaffer, Gregory & Ginsburg, Tom, The Empirical Turn in International Legal Scholarship, 106 AJIL 1, 6 (2012)CrossRef Google Scholar (“In the rational institutionalist paradigm, international institutions facilitate state cooperation by reducing the transaction costs of negotiating international agreements with multiple parties, and by promoting compliance with them through monitoring and enforcement.”).

²⁸ Emanuel Adler, Communitarian International Relations: The Epistemic Foundations of International Relations 15 (2005).

²⁹ Id. at 22 (“The joint enterprise of members of a community of practice does not necessarily mean a common goal or vision, although in most cases it does.”).

³⁰ Id. at 15.

³¹ E.g., Brunnée & Toope, supra note 9, at 80 (arguing that a “‘thin’ community of international legal practice” might exist on the basis of “very limited shared understandings” but that “a deeper sense of community” develops as the participants “coalesce[] around the emergence of common histories, values or norms”); Cohen, supra note 1, at 1066, 1067, 1069 (asserting that a “legal community … is constituted by its members shared acceptance of certain ground rules and their shared expectations about good and bad argument,” so while members might disagree on substance, their “disagreements over the legitimacy of particular sources may mean that international law is no longer defined by a single legal community”); see also Haas, Peter M., Do Regimes Matter? Epistemic Communities and Mediterranean Pollution Control, 43 Int'l Org. 377, 377, 380 (1989)CrossRef Google Scholar (arguing that if an epistemic community “with a common perspective is able to acquire and sustain control over a substantive policy domain,” it will “produce convergent state policies” and “the associated regime will become stronger”).

³² Johnstone, supra note 8, at 33–54.

³³ Id. at 41–44.

³⁴ See id. at 42.

³⁵ Id.

³⁶ Id. at 32 (“Legal argumentation … does help to solidify agreement.”). Other scholars also underscore that conflict is often part of the process of building a consensus or developing new norms. E.g., Risse, Thomas, “Let's Argue!”: Communicative Action in World Politics, 54 Int'l Org. 1, 7 (2000)CrossRef Google Scholar (“Arguing implies that actors try to … seek a communicative consensus about their understanding of a situation as well as justifications for the principles and norms guiding their action.”); Toope, Stephen J., Formality and Informality, in Oxford Handbook of International Environmental Law 107, 123 (Bodansky, Daniel, Brunnée, Jutta & Hey, Ellen eds., 2007)Google Scholar (“[T]he process of normative evolution is oftentimes conflictual.”). These scholars suggest that conflict is constructive for a community to the extent that it reinforces or generates some common ground. However, they have not questioned and at times seem to endorse the view that conflict itself betrays a deficiency and must be resolved in order to realize any gains.

³⁷ Johnstone, supra note 8, at 44.

³⁸ See, e.g., Lewis A. Coser, The Functions of Social Conflict 137 (1956) (“[C]onflict, rather than being disruptive and dissociating, may indeed be a means of balancing and hence maintaining a society as a going concern.”); Bernard Crick, In Defence of Politics 24 (1962) (“Diverse groups hold together … because they practice politics—not because they agree about ‘fundamentals’ … .”); Max Gluckman, Custom and Conflict in Africa 23 (1955) (“[C]ustom unites where it divides . …”); Don Herzog, Household Politics 128 (2013) (“Conflict, I'll argue, isn't the opposite of social order. It's what social order usually is.”); Hirschman, Albert O., Social Conflicts as Pillars of Democratic Market Society, 22 Pol. Theory 203, 206 (1994)CrossRef Google Scholar (reviewing literature on how “social conflict produce[s] … valuable ties that hold modern democratic societies together and provide them with the strength and cohesion they need”).

³⁹ Bernard Yack, The Problems of a Political Animal 29 (1993).

⁴⁰ Id. at 29–30; see also id. at 15 (“Aristotle argues against Plato that the elimination of social heterogeneity threatens to eliminate political community itself; community signifies for Aristotle a combination of sharing and differentiation rather than social unity.” (citation omitted)).

⁴¹ Id. at 40–42.

⁴² Id.

⁴³ Id. at 43 (emphasis added).

⁴⁴ To be clear, my point is not that the islanders have nothing in common. My point is that their community is constituted both by their commonality—here, their shared project to allocate resources—and by the associated conflicts. I amplify this point in the next few paragraphs.

⁴⁵ Adler, supra note 28, at 15, 23; Brunnée & Toope, supra note 9, at 70, 72.

⁴⁶ Adler, supra note 28, at 21; Brunnée & Toope, supra note 9, at 63.

⁴⁷ Herzog, supra note 38, at 146.

⁴⁸ For evidence, see Max Gluckman's anthropological work, supra note 38.

⁴⁹ See generally Herzog, supra note 38, at 123–47.

⁵⁰ Coser, supra note 38, at 79, 151–52.

⁵¹ Chantal Mouffe, Agonistics 8 (2013) (“[When] passions cannot be given a democratic outlet … [t]he ground is … [laid] for the multiplication of confrontations over non-negotiable moral values, with all the manifestations of violence that such confrontations entail.”); Coser, supra note 38, at 41 (“Conflict serves as an outlet for the release of hostilities which, were no such outlet provided, would sunder the relation between antagonists.”); Georg Simmel, Conflict: The Web of Group Affiliations 27 (1955) (“The sharpening of contrasts may be provoked directly for the sake of its own diminution … in the expectation that the antagonism, once it reaches a certain limit, will end because of exhaustion or the realization of its futility.”).

⁵² E.g., supra notes 41–43 and corresponding text (discussing the Aristotelian practice of justice); Chantal Mouffe, On the Political 20 (2005) (explaining that adversaries “must see themselves as belonging to the same political association … [and] sharing a common symbolic space,” even as they continue to disagree); Coser, supra note 38, at 157 (“Conflict tends to be dysfunctional for a social structure in which there is no or insufficient toleration and institutionalization of conflict.”); cf. Berman, Paul Schiff, Global Legal Pluralism, 80 S. Cal. L. Rev. 1155, 1164, 1166 (2007)Google Scholar (arguing that mechanisms that “deliberately seek to create or preserve spaces for conflict among multiple, overlapping legal systems” “can potentially help to channel (or even tame) normative conflict” (emphasis omitted)).

⁵³ Hirschman, supra note 38, at 206.

⁵⁴ The doctrine on sources itself defines international law in consensual terms. See, e.g., Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 ICJ Rep. 14, para. 269 (June 27) (“[I]n international law there are no rules, other than such rules as may be accepted by the State concerned… .”).

⁵⁵ E.g., Alexander Orakhelashvili, The Interpretation of Acts and Rules in Public International Law 29 (2008) (“[P]olitical considerations are inherently subjective and can be subjectively manipulated, unlike agreed and accepted rules of law. …”); Malcolm N. Shaw, International Law 12 (6th ed. 2008)Google Scholar (“Power politics stresses competition, conflict and supremacy … [while] law aims for harmony and the regulation of disputes.”).

⁵⁶ E.g., Ratner, supra note 1, at 1 (“International law represents a system of norms and processes for resolving competing claims… .”); D'Amato, Anthony, Groundwork for International Law, 108 AJIL 650, 653 (2014)Google Scholar (“The international legal system … tends to evolve norms that reduce friction and controversies among states and to foster systemic equilibrium by prescribing how controversies may be avoided, mitigated, or resolved.”); Rosalyn Higgins, Peaceful Settlement of Disputes, Address at the American Society of International Law Annual Dinner (Apr. 6, 1995), in 89 ASIL Proc. 293, 293 (1995) (“There is now a considerable feeling, resting upon quite discrete norms of public international law and upon good common sense, that even disputes whose continuance can not be said to endanger international peace should be settled as harmoniously as possible.”); Peters, Anne, International Dispute Settlement: A Network of Cooperational Duties, 14 Eur. J. Int'l L. 1, 9–11 (2003)CrossRef Google Scholar (asserting that a “dispute itself implies disagreement and non-cooperation” and must be overcome to avoid “the danger of an impasse in dispute settlement” (emphasis added)).

⁵⁷ Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument 565, 567–68 (2d ed. 2006)Google Scholar (describing international law as a shared grammar that does not necessarily reflect the participants’ shared substantive commitments but instead structures an argumentative practice); Cohen, supra note 1, at 1067 (“Law provides a medium for debate and agreement, requiring actors to engage with each other in very specific fora using very specific language and procedures.”); Venzke, Ingo, Semantic Authority, Legal Change and the Dynamics of International Law, 12 No Foundations 1, 2, 12 (2015)Google Scholar (arguing that “[t]he law provides the battleground for competing claims,” such that “different actors with varying degrees of semantic authority struggle” over its meaning).

⁵⁸ Hakimi, Monica, The Work of International Law, 58 Harv. Int'l L.J. (forthcoming 2017)Google Scholar (manuscript on file with author).

⁵⁹ Id. On the more general point that having shared ground rules helps people disagree, see Herzog, supra note 38, at 134–41.

⁶⁰ See, e.g., Stuart A. Scheingold, The Politics of Rights 133–34, 210–11 (2d ed. 2004); Cover, Robert M., The Supreme Court, 1982 Term—Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4, 4–5 (1983)CrossRef Google Scholar (“Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live.”).

⁶¹ Hakimi, supra note 58.

⁶² Paul Schiff Berman, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders 145 (2012) (“[N]ormative conflict is unavoidable… .”); Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law 69 (2010) (“In pluralism, there is no common legal point of reference to appeal to for resolving disagreement; conflicts are solved through convergence, mutual accommodation—or not at all.”); see also Michelman, Frank, Law's Republic, 97 Yale L.J. 1493, 1507 (1988)CrossRef Google Scholar (explaining that pluralism “doubts or denies our ability to communicate [diverse normative experiences] in ways that move each other's views on disputed normative issues towards felt (not merely strategic) agreement without deception, coercion, or other manipulation”).

⁶³ Hakimi, supra note 58.

⁶⁴ See K.N. Llewellyn & E. Adamson Hoebel, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence 277 (1941) (explaining that, in law, “claims get made and urged in terms of the Order” and “tend powerfully to be set up as serving the welfare of the relevant Entirety”); Yack, supra note 39, at 57 (“In political communities the standards that define this sense of mutual obligation are expressed in laws, that is, in public rules open to discussion and revision.”).

⁶⁵ Post, Robert & Siegel, Reva, Roe Rage: Democratic Constitutionalism and Backlash, 42 Harv. C.R.-C.L. L. Rev. 373, 378 (2007)Google Scholar.

⁶⁶ Id. at 427.

⁶⁷ Siegel, Reva B., Text in Contest: Gender and the Constitution from a Social Movement Perspective, 150 U. Pa. L. Rev. 297, 326 (2001)CrossRef Google Scholar.

⁶⁸ Post & Siegel, supra note 65, at 405; see also Michelman, supra note 62, at 1513 (noting the “conscious reference by those involved to their mutual and reciprocal awareness of being co-participants not just in this one debate, but in a more encompassing common life …”).

⁶⁹ See, e.g., Siegel, Reva B., Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94 Cal. L. Rev. 1323, 1328, 1418–19 (2006)Google Scholar [hereinafter Siegel, Constitutional Culture]; Kapczynski, supra note 13, at 882 (arguing that “[r]estricted terms” might “be less attractive for groups seeking to mobilize than elaborated terms, which are more flexible and universalistic”); Kutz, Christopher L., Just Disagreement: Indeterminacy and Rationality in the Rule of Law, 103 Yale L.J. 997, 1004 (1994)CrossRef Google Scholar (“[A] legal system is healthiest when there is conflict and dissent among its claims, because even irresolvable conflict is a sign of energy and attention.”); Michelman, supra note 62, at 1529 (“Legal indeterminacy in that sense is the precondition of the dialogic, critical-transformative dimension of our legal practice . …”).

⁷⁰ Siegel, Constitutional Culture, supra note 69, at 1328.

⁷¹ E.g., Fassbender, supra note 3; Pierre-Marie Dupuy, The Constitutional Dimension of the Charter of the United Nations Revisited, 1997 Max Planck Y.B. United Nations L. 1, 33.

⁷² Bobbitt, supra note 15, at 94–95.

⁷³ 554 U.S. 570 (2008). I take this example and analysis from Primus, supra note 15, at 80.

⁷⁴ Greene, Jamal, On the Origins of Originialism, 88 Tex. L. Rev. 1, 73 (2009)Google Scholar; Primus, supra note 15, at 79.

⁷⁵ Primus, supra note 15, at 80.

⁷⁶ Id.

⁷⁷ Id.

⁷⁸ See Primus, Richard, Unbundling Constitutionality, 80 U. Chi. L. Rev. 1079, 1133–35 (2013)Google Scholar; Balkin, Jack M., The New Originalism and the Uses of History, 82 Fordham L. Rev. 641, 678 (2013)Google Scholar.

⁷⁹ See Primus, supra note 15, at 82, 89.

⁸⁰ Others have recognized as much. E.g., Christian J. Tams, Enforcing Obligations Erga Omnes in International Law 4 (2d ed. 2010) (“[T]here is no agreement about the scope of the erga omnes concept, and the legal consequences flowing from that status remain unclear.”); Bianchi, Andrea, Human Rights and the Magic of Jus Cogens , 19 Eur. J. Int'l L. 491, 505 (2008)CrossRef Google Scholar (“Uncertainty remains about the operational mode of this normative category.”); Brownlie, Ian, To What Extent Are the Traditional Categories of Lex Lata and Lex Ferenda Still Viable?, in Change and Stability in International Lawmaking 66, 71 (Weiler, Joseph & Cassese, Antonio eds., 1988)Google Scholar (describing erga omnes obligations as “very mysterious indeed”); Linderfalk, Ulf, The Effect of Jus Cogens Norms: Whoever Opened Pandora's Box, Did You Ever Think About the Consequences?, 18 Eur. J. Int'l L. 853, 854–55 (2007)CrossRef Google Scholar (“If we search the international law literature for information on the possible normative content and effects of jus cogens norms, it will provide but a very diffused picture.”).

⁸¹ In early usage, the relevant community was described as a community of states. Vienna Convention on the Law of Treaties, Art. 53, May 23, 1969, 1155 UNTS 331 [hereinafter VCLT]. Now, the community is widely understood to include other kinds of actors. Thus, authoritative references no longer define the community as comprised exclusively of states. See, e.g., Barcelona Traction, Light & Power Co., Ltd. (Belg. v. Spain), Judgment, 1970 ICJ Rep. 3, para. 33 (Feb. 5) [hereinafter Belgium v. Spain]; Int'l Law Comm'n, The Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries, Art. 25, cmt. 18, in Rep. of the Int'l Law Comm'n, 53d Sess., Apr. 23–June 1, July 2–Aug. 10, 2001, UN Doc. A/56/10, GAOR 56th Sess., Supp. No. 10 (2001) [hereinafter DARSIWA].

⁸² VCLT, supra note 81, Art. 53.

⁸³ E.g., Armed Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, 2006 ICJ Rep. 6, para. 64 (Feb. 3) [hereinafter Dem. Rep. Congo v. Rwanda]; Prosecutor v. Anto Furundžija, Case No. IT–95–17/I–T, Trial Judgment, 121 ILR 218, para. 153 (10 Dec. 1998); DARSIWA, supra note 81, Arts. 26, 40.

⁸⁴ See DARSIWA, supra note 81, Art. 26, cmt. 5; Conklin, William E., The Peremptory Norms of the International Community, 23 Eur. J. Int'l L. 837, 838 (2012)Google Scholar (“[D]espite their acknowledged universality, it remains unclear which norms are peremptory.”); Shelton, Dinah, International Law and ‘Relative Normativity,’ in International Law 159, 164 (Evans, Malcom D. ed., 2006)Google Scholar (“It is a concept without an agreed content and one that is not widely endorsed by State practice.”).

⁸⁵ DARSIWA, supra note 81, Art. 26, cmt. 5.

⁸⁶ I focus in the main text on one such effort, but there are others. E.g., DARSIWA, supra note 81, Art. 40, cmt. 3 (asserting that jus cogens norms proscribe conduct that is “intolerable because of the threat it presents to the survival of States and their peoples and the most basic human values”); Robert Kolb, Peremptory International Law—Jus Cogens 3 (2015) (arguing that jus cogens norms are defined not by their substantive content but by their nonderogable effect); Conklin, supra note 84, at 856 (arguing that jus cogens norms are norms that are “conditions for the very existence of the international legal order”). Despite these efforts, the definitional question remains.

⁸⁷ E.g., Armed Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), Judgment, 2006 ICJ Rep. 86, para. 10 (separate opinion by Dugard, J.); Alexander Orakhelashvili, Peremptory Norms in International Law 47 (2008); Simma, supra note 4, at 285–88.

⁸⁸ Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature Dec. 18, 1979, 1249 UNTS 13; International Covenant on Civil and Political Rights, Art. 2(1), opened for signature Dec. 19, 1966, 999 UNTS 171; International Covenant on Economic, Social, and Cultural Rights, Art. 2(2), opened for signature Dec. 16, 1966, 993 UNTS 3; The International Convention on the Elimination of All Forms of Racial Discrimination, Mar. 7, 1966, 660 UNTS 195.

⁸⁹ VCLT, supra note 81, Arts. 53, 64, 71.

⁹⁰ Egon Schwelb's 1967 statement still resonates: “There appears to be no case on record in which an international court or arbitral tribunal decided that an international treaty was void because of repugnancy to a peremptory rule, in which an international political organ made a decision or recommendation to this effect, or where, in settling a dispute, governments have agreed on such a proposition.” Schwelb, Egon, Some Aspects of International Jus Cogens as Formulated by the International Law Commission, 61 AJIL 946, 949–50 (1967)CrossRef Google Scholar. For a more recent review of the practice, see Shelton, Dinah, Normative Hierarchy in International Law, 100 AJIL 291, 304–17 (2006)CrossRef Google Scholar.

⁹¹ See Dem. Rep. Congo v. Rwanda, supra note 83, para. 64 (“The fact that a dispute relates to compliance with a [jus cogens] norm … cannot of itself provide a basis for [] jurisdiction… .”).

⁹² Jurisdictional Immunities of the State (Ger. v. It.; Greece Intervening), Judgment, 2012 ICJ Rep. 99, Feb. 2, 2012, paras. 93–95 [hereinafter Germany v. Italy].

⁹³ Some have asserted that a norm's jus cogens status provides a basis for a state's national courts to exercise universal jurisdiction—that is, to adjudicate claims that lack any nexus to that state. As others have explained, however, the support for this assertion in the operational practice is weak. To the extent that states exercise jurisdiction in cases involving jus cogens norms, they very rarely rely or need to rely on the jus cogens principle. See Petsche, Markus, Jus Cogens as a Vision of the International Legal Order, 29 Penn. St. Int'l L. Rev. 233, 250–52 (2010)Google Scholar.

⁹⁴ DARSIWA, supra note 81, Arts. 26, 40, 41.

⁹⁵ Id. Art. 41.

⁹⁶ Id. Art. 16.

⁹⁷ All of the practice that the ILC cites to support its second duty concerns these two prohibitions. Id. Art. 41, cmts. 4–10. In the 2004 advisory opinion in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ 131, para. 159 (July 9) [hereinafter Construction of a Wall], the ICJ picked up on the ILC's claim to assert that “all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory . …” This language is best interpreted to mean that states may not recognize as lawful any forcible annexation of Palestinian territory. As Judge Kooijmans has explained, any other interpretation suggests a meaningless “duty not to recognize an illegal fact.” Id. (separate opinion by Kooijmans, J., para. 44).

⁹⁸ DARSIWA, supra note 81, Art. 41, cmt. 3.

⁹⁹ Construction of a Wall, supra note 97.

¹⁰⁰ Id., para. 159.

¹⁰¹ See Hakimi, Monica, Toward a Legal Theory on the Responsibility to Protect, 39 Yale J. Int'l L. 247, 254–56 (2014)Google Scholar (reviewing practice); see also Paulus, Andreas L., Cogens, Jus in a Time of Hegemony and Fragmentation: An Attempt at a Re-appraisal, 74 Nordic J. Int'l L. 297, 315 (2005)Google Scholar (asserting that “there is not much” to the ILC's enforcement duties and that the ICJ's failure to speak in jus cogens terms “has weakened the concept, not strengthened it”).

¹⁰² Belgium v. Spain, supra note 81.

¹⁰³ Id., para. 33.

¹⁰⁴ Id., para. 34; Construction of a Wall, supra note 97, para. 157.

¹⁰⁵ The two main theories for answering this question point in different directions. One justifies erga omnes obligations in terms of the “importance of the rights involved.” Belgium v. Spain, supra note 81, para. 33; Tams, supra note 80, at 128–57. Under this theory, obligations to comply with jus cogens norms are erga omnes because they protect interests that are universal and foundational to the community. This theory implies that erga omnes obligations are limited to the jus cogens set; other norms are not as important. According to the second theory, erga omnes obligations arise from the structure of the rights involved. Violations affect all states at once, rather than specific states at a time. See Claudia , Annacker, The Legal Regime of Erga Omnes Obligations in International Law, 46 Austrian J. Pub. Int'l L. 131, 136 (1994)Google Scholar. This second theory is potentially more expansive than the first because a broader range of obligations might reasonably be characterized as affecting all states at once. E.g., Gabcikovo-Nagymaros Project (Hung. v. Slovk.), Judgment, 1997 ICJ Rep. 7, paras. 114–19 (Sept. 25) (separate opinion by Vice-President Weermantry) (environmental obligations).

¹⁰⁶ See Gaja, Giorgio, Obligations Erga Omnes, International Crimes and Jus Cogens: A Tentative Analysis of Three Related Concepts, in International Crimes of State: A Critical Analysis of the ILC's Draft Article 19 on State Responsibility, 151, 156 (Weiler, Joseph H., Cassese, Antonio & Spinedi, Marina eds., 1989)CrossRef Google Scholar [hereinafter International Crimes of State]. I say “arguably” because Barcelona Traction elsewhere suggests that any enforcement right must be grounded either in a treaty or in another rule of customary law. Belgium v. Spain, supra note 81, para. 91; see also, e.g., Special Rapporteur on State Responsibility, Fourth Report on the Content, Forms and Degrees of International Responsibility, Int'l Law Comm'n, para. 100, UN Doc. A/CN.4/366 (Apr. 14–15, 1983) (by Willem Riphagen) (“[T]he presence of a collective interest … should imply a collective decision-making machinery as regards reprisals… .”).

¹⁰⁷ DARSIWA, supra note 81, Art. 48; cf. Questions Relating to the Obligation to Prosecute and Extradite (Belg. v. Sen.), 2012 ICJ Rep. 422, paras. 68–69 (July 20) (finding that the treaty at issue establishes “obligations erga omnes partes,” meaning that “[a]ll the States parties ‘have a legal interest’ in the protection of the rights involved” and each state party has standing “to make a claim concerning the cessation of an alleged breach by another State party”) (quoting Belgium v. Spain, supra note 81, para. 33).

¹⁰⁸ See Tams, supra note 80, at 159–62, 324.

¹⁰⁹ DARSIWA, supra note 81, Art. 42, cmt. 2 (“There is in general no requirement that a State which wishes to protest against a breach of international law by another State or remind it of its international responsibilities in respect of a treaty or other obligation by which they are both bound should establish any specific title or interest to do so.”).

¹¹⁰ A state that is not uniquely injured may take unfriendly measures if the measures are: (1) not otherwise prescribed by international law (so-called “retorsions”), or (2) authorized by an international organ, like the UN Security Council, that may override an acting state's contrary obligations.

¹¹¹ DARSIWA, supra note 81, Arts. 22, 49–53.

¹¹² Id. Art. 54, cmt. 6.

¹¹³ Id.

¹¹⁴ See Elena Katselli Proukaki, The Problem of Enforcement in International Law: Countermeasures, the Non-injured State and the Idea of International Community 206 (2010); Tams, supra note 80, at 208–51; Dawidowicz, Martin, Public Law Enforcement Without Public Law Safeguards? An Analysis of State Practice on Third-Party Countermeasures and Their Relationship in the UN Security Council, 77 Brit. Y.B. Int'l L. 333, 350–417 (2006)Google Scholar.

¹¹⁵ See Proukaki, supra note 114, at 93 (recognizing that “state practice is often inconclusive, conflicting, and ambiguous,” as “states often avoid clearly identifying the legal basis of their action” and in many cases “uncertainty remains as to whether certain conduct amounts to retorsion or third-state countermeasures”); Dawidowicz, Martin, Third-Party Countermeasures: A Progressive Development of International Law?, 29 Questions Int'l L. Zoom-In 3, 14, (2016)Google Scholar [hereinafter Dawidowicz, Third-Party Countermeasures] (“[S]tatements expressing opinio juris in the field of third-party countermeasures are rare”).

¹¹⁶ See sources at supra note 80.

¹¹⁷ This interpretation is variously expressed. Some commentators propose reforms to give the rhetoric operational bite. E.g., Tams, supra note 80, at 5 (“The present study attempts to demystify aspects of the [erga omnes] concept and thereby to facilitate its implementation.”). Others suggest that the “problem” is that states are motivated by self-interest or that the legal system itself is too primitive. E.g., Fabri, Hélène Ruiz, Enhancing the Rhetoric of Jus Cogens , 23 Eur. J. Int'l L. 1049, 1050 (2012)CrossRef Google Scholar (explaining that the jus cogens principle is a source of “hope that international law … can be driven by values other than the mere satisfaction of selfish (albeit collective) interests, supported and promoted by pure power relationships”); Villalpando, supra note 4, at 417 (explaining that the “core problem” is that the legal system still lacks rules or mechanisms for balancing the interests of the entire community against the interests of particular states).

¹¹⁸ E.g., Bianchi, supra note 80, at 507–08 (claiming that jus cogens has magical symbolic power); Charlesworth, Hilary & Chinkin, Christine, The Gender of Jus Cogens, 15 Hum. Rts. Q. 63, 66 (1993)CrossRef Google Scholar (“Much of the importance of the jus cogens doctrine lies not in its practical application but in its symbolic significance in the international legal process.”); Christenson, Gordon A., Cogens, Jus: Guarding Interests Fundamental to International Society, 28 Va. J. Int'l L. 585, 590 (1988)Google Scholar (asserting that “jus cogens is a normative myth” that “symbolizes a hope for a humane public order” and “carries a potential vision of integrating norms basic to a cosmopolitan world order … ”); Petsche, supra note 93, at 237 (“[T]he true import of the recognition of the concept of jus cogens lies more in its ‘symbolic’ value and its ‘vision’ of international law and the international legal system.”).

¹¹⁹ To date, Markus Petsche has offered the most thorough expressive account of jus cogens norms. He argues that the principle shapes, in diffuse ways, expectations about international law. Petsche's argument rests on a claim about the substantive content of these norms—that “jus cogens essentially aims to protect individual rights.” Pesche, supra note 93, at 269. The argument thus does not account for the principle's amorphous quality. Further, it operates at a very high level of abstraction. Petsche does not explain what the jus cogens principle offers that the substantive law—here, human rights law—does not. He also does not explain the practice of regularly invoking the principle but not making it operational.

¹²⁰ E.g., D'Amato, Anthony, It's a Bird, It's a Plane, It's Jus Cogens!, 6 Conn. J. Int'l L. 1, 6 (1990)Google Scholar (describing the principles as useless); Thirlway, Hugh W.A., The Law and Procedure of the International Court of Justice—Part One, 60 Brit. Y.B. Int'l L. 1, 100 (1989)Google Scholar (describing them as “empty gesture[s]”).

¹²¹ E.g., Jack Goldsmith & Eric Posner, The Limits of International Law 170–84 (2006); Kenneth N. Waltz, Theory of International Politics 200 (1979).

¹²² But cf. Guzman, Andrew T., The Promise of International Law, 92 Va. L. Rev. 533, 561 (2006)Google Scholar (arguing that using international law can actually be quite costly).

¹²³ See Hathaway, Oona A., Between Power and Principle: An Integrated Theory of International Law, 72 U. Chi. L. Rev. 469, 479 (2005)Google Scholar (asserting that the critics “give no explanation as to why [cheap talk] is valuable—as to why, that is, the great powers feel the need to justify the pursuit of their interests”).

¹²⁴ E.g., Abram Chayes & Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements 118 (1995); Johnstone, supra note 8, at 7–8, 41–50; Risse, supra note 36, at 7 (“Argumentative and deliberative behavior is as goal oriented as strategic interaction, but the goal is … to seek a reasoned consensus.”).

¹²⁵ Other explanations for the international legal discourse are similarly unhelpful in this context. For example, some scholars argue that the legal discourse helps legitimize decisions. A lawful decision might be perceived as more legitimate and thus be easier to make than an unlawful one. E.g., Ian Hurd, The Permissive Power of the Ban on War, Eur. J. Int'l Sec. (Aug. 9, 2016), available at http://dx.doi.org.ezp-prod1.hul.harvard.edu/10.1017/eis.2016.13). This explanation presumably requires some nexus between the discourse and the decisions that it is supposed to legitimize. No such nexus is evident here because the discourse on jus cogens norms and erga omnes obligations is disconnected from the operational practice. Other scholars claim that the discourse helps structure international politics. These scholars do not explain what they mean by this, if not that engaging with international law regulates behavior or is just cheap talk for politicking and debate. They also do not explore the effects of arguing in one “language,” rather than another. See, e.g., Reus-Smit, Christian, Introduction, in The Politics of International Law 11 (Reus-Smit, Christian ed., 2004)CrossRef Google Scholar; Burley, Anne-Marie Slaughter, International Law and International Relations Theory: A Dual Agenda, 87 AJIL 205, 221 (1993)CrossRef Google Scholar.

¹²⁶ See Robert Ago (Special Rapporteur), Fifth Rep. on State Responsibility, UN Doc. CN.4/291 and Add.1 & 2, paras. 89–99 (1976).

¹²⁷ See Marina Spinedi, International Crimes of State: The Legislative History, in International Crimes of State, 21–22 & 135.

¹²⁸ Int'l L. Comm'n, Report on the Work of Its Twenty-Eighth Session, May 3–July 23, 1976, UN Doc. A/31/10, at para. 61.

¹²⁹ See Int'l L. Comm'n, Draft Articles on State Responsibility with Commentaries Adopted on First Reading, Art. 19, cmts. 10, 16–17, UN Doc. A/CN.4/L.528/Add.3 [hereinafter DARSIWA Adopted on First Reading], at http://legal.un.org/docs/?path=../ilc/texts/instruments/english/commentaries/9_6_1996.pdf&lang=EF.

¹³⁰ James Crawford (Special Rapporteur), First Rep. on State Responsibility, UN Doc. A/CN.4/490, at para. 43 (1998).

¹³¹ Supra notes 94–95 and corresponding text.

¹³² G.A. Res. 799 (VIII), at 52 (Dec. 7, 1953); see also Bruno Simma, International Crimes: Injury and Countermeasures. Comments on Part 2 of the ILC Work on State Responsibility, in International Crimes of State, supra note 106, at 283, 290 (explaining that, once the positive law existed, the state responsibility question was “almost on the tip of the tongue”).

¹³³ See generally DARSIWA Adopted on First Reading, supra note 129, Art. 19, cmts.; International Crimes of State, supra note 106.

¹³⁴ Commentators recognized at the time that the debate on state crimes was ultimately about the international community's shape and character. E.g., R. Ago, Obligations Erga Omnes and the International Community, in International Crimes of State, supra note 106, at 237, 238 (arguing that state crimes were key to the community's “advanced institutionalization”); Wyler, Eric, From ‘State Crime’ to Responsibility for ‘Serious Breaches of Obligations Under Peremptory Norms of General International Law,’ 13 Eur. J. Int'l L. 1147, 1153 (2002)CrossRef Google Scholar (claiming that state crimes were part of a transformation in the “protection of ‘international ordre public’ as a collective interest transcending that of the victim state”).

¹³⁵ E.g., Int'l L. Comm'n, State Responsibility: Comments and Observations Received from Governments, 50th Sess., May 20–June 12, July 27–Aug. 14, 1998, UN Doc. A/CN.4/488, at 121–22 [hereinafter Government Comments] (statement of France) (“What is meant by the ‘international community’?”); Int'l L. Comm'n, State Responsibility: Comments and Observations Received from Governments, 53rd Sess., Apr. 23–June 1, July 2–Aug. 10, 2001, UN Doc. A/CN.4/515, at 33, 45 (statements of United Kingdom, Slovakia) (suggesting that “international community as a whole” be replaced by “international community of states as a whole” to avoid confusion about the community's composition); id. at 50 (statement of Netherlands) (supporting the use of the phrase “international community as a whole,” as opposed to “international community of states,” in order to avoid “a restrictive interpretation of the term ‘international community’”).

¹³⁶ E.g., Government Comments, supra note 135, at 122 (statement of France) (“[W]ho will determine that an interest is ‘fundamental’ and that it is of concern to the ‘international community’ … ?”); id. at 114 (statement of Austria) (“[I]nter-State relations lack the kind of central authority necessary to decide on subjective aspects of wrongful State behavior.”); id. at 119 (statement of Mongolia) (“[T]he determination of the commission of an international crime [must] not be left to the decision of one State, but be attributed to the competence of international judicial bodies.”) (alteration in original); id. at 121 (U.S. statement) (“Existing international institutions and regimes already contain a system of law for responding to violations of international obligations which the Commission might term ‘crimes.’”).

¹³⁷ E.g., DARSIWA Adopted on First Reading, supra note 129, Art. 19(3) & Art. 19, cmt. 62 (providing a nonexhaustive list of possible crimes and explaining that the category of crimes overlaps considerably but not entirely with that of jus cogens norms); Pellet, Alain, Can a State Commit a Crime? Definitely, Yes!, 10 Eur. J. Int'l L. 425, 428–29 (1999)CrossRef Google Scholar (arguing that international crimes should include all breaches of jus cogens norms but not all breaches of erga omnes obligations).

¹³⁸ See James Crawford (Special Rapporteur), First Rep. on State Responsibility, UN Doc. A/CN.4/490, at 13–14 (1998) (“Many [government] comments accept that a distinction should be drawn … between the most serious wrongful acts, of interest to the international community as a whole, and wrongful acts which are of concern only to the directly affected States. But the distinction need not and perhaps should not be expressed in the language of ‘crime’ and ‘delict.’”); Government Comments, supra note 135, at 120 (U.K. statement) (“[I]t is entirely possible that the concept [of state crimes] would impede, rather than facilitate, the condemnation of egregious breaches of the law … [and] make it more difficult for the international community to frame the terms of the condemnation so as to match precisely the particular circumstances of each case of wrongdoing.”); B. Graefrath, On the Reaction of the “International Community as a Whole”: A Perspective of Survival, in International Crimes of States, supra note 106, at 254 (“[T]here is a common understanding that there are violations of international obligations that are so dangerous that the community as such, as a whole, should react; the international community should have the possibility, the means to react because this is necessary for the survival of mankind… .”).

¹³⁹ Germany v. Italy, supra note 92.

¹⁴⁰ Ferrini v. Fed. Repub. Germany, 128 ILR 659 (Ital. Corte di Cassazione 2004).

¹⁴¹ Id., para. 9.

¹⁴² Id.

¹⁴³ See Jurisdictional Immunities of the State (Ger. v. It.; Greece intervening), Germany, Memorial, paras. 23–45 (June 12, 2009) (discussing subsequent cases) [hereinafter Germany v. Italy, Germany Memorial].

¹⁴⁴ Application of Jurisdictional Immunities of the State (Ger. v. Italy), (Dec. 23, 2008).

¹⁴⁵ Application by Greece to Intervene in Case Concerning Jurisdictional Immunities of the State (Ger. v. It.), (Jan. 13, 2011).

¹⁴⁶ Judgment 238, Corte Cost., 22 Oct. 2014, Foro it. 2015, I, 1152 (It.), available at https://drive.google.com/file/d/0BwJjW6kOLfgiX1BWRlpQVTZxb28/view?usp=sharing.

¹⁴⁷ See Paolo de Stefani, On Human Dignity and State Sovereignty: The Italian Constitutional Court's 238/2014 Judgment on State Immunity, at 5 (Feb. 19, 2016) (working paper), available at https:// www.researchgate.net/publication/295103806.

¹⁴⁸ On this contest's centrality, see Ruti G. Teitel, Humanity's Law 9, 37 (2011); Reisman, W. Michael, Sovereignty and Human Rights in Contemporary International Law, 84 AJIL 866, 872 (1990)CrossRef Google Scholar.

¹⁴⁹ E.g., Germany v. Italy, supra note 92, paras. 288–99 (separate opinion by Trinidade, J.); Jurisdictional Immunities of the State (Ger. v. It.; Greece intervening), Counter-Memorial of Italy, paras. 4.56–.77 (Dec. 22, 2009); Germany v. Italy, Germany Memorial, supra note 143, paras. 83–90.

¹⁵⁰ Jurisdictional Immunities of the State (Ger. v. It.; Greece intervening), Written Statement of Hellenic Republic, para. 56 (Aug. 3, 2011), at http://www.icj-cij.org/docket/files/143/16658.pdf#view=FitH&pagemode=none&search=%22diplomatic%22.

¹⁵¹ E.g., Howse, Robert, From Politics to Technocracy—and Back Again: The Fate of the Multilateral Trading Regime, 96 AJIL 94, 98 (2002)CrossRef Google Scholar; Stewart, Richard B. & Badin, Michelle Ratton Sanchez, The World Trade Organization: Multiple Dimensions of Global Administrative Law, 9 Int'l J. Const. L. 556, 560 (2011)Google Scholar.

¹⁵² See, e.g., Lang, Andrew & Scott, Joanne, The Hidden World of WTO Governance, 20 Eur. J. Int'l L. 575, 604 (2009)Google Scholar (asserting that the WTO has helped create “a relatively close-knit community of trade negotiators and governmental officials with a defined ‘ethos,’ a sense of common purpose, broadly shared normative commitments, and common ways of defining and analysing problems,” and suggesting that “this community is sustained[ as] its shared ideas are created and disseminated”); Posner & Sykes, supra note 12, at 1033–34 (“The WTO dispute settlement system helps to orchestrate cooperation… . [It] has the capacity to resolve disputes over the meaning of the rules, so that disagreements over ambiguous legal obligations do not degenerate into trade wars.”).

¹⁵³ Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Apr. 15, 1994, 1867 UNTS 14.

¹⁵⁴ Howse, supra note 151, at 95; see also, e.g., Andrew Lang, World Trade Law After Neoliberalism 57–58 (2011) (arguing that trade law's ideological foundations are contested).

¹⁵⁵ For an excellent overview of this contest within the WTO, see Howse, Robert, The World Trade Organization 20 Years On: Global Governance by Judiciary, 27 Eur. J. Int'l L. 9 (2016)CrossRef Google Scholar [hereinafter Howse, The WTO 20 Years On].

¹⁵⁶ General Agreement on Tariffs and Trade, Art. XX, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 UNTS 187; General Agreement on Trade in Services, Art. XIV, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1B, 1869 UNTS 183.

¹⁵⁷ E. g., Report of the Panel, United States—Restrictions on Imports of Tuna, DS21/R (Sept. 3, 1991), GATT BISD (39th Supp.), at 50–51 (1991) (environment); Report of the Panel, United States—Restrictions on Imports of Tuna, DS29/R, paras. 5.27, 5.39, 6.1 (Jun. 16, 1994) (same); Report of the Panel, Thailand—Restrictions on Importation of and International Taxes on Cigarettes, paras. 72–76, DS10/R (Nov. 7, 1990), GATT BISD (37th Supp.), at 200 (1990) (health); Report of the Panel, Canada—Measures Affecting Exports of Unprocessed Herring and Salmon, L/6268 (Mar. 22, 1988), GATT BISD (35th Supp.), at 114 (1989) (environment).

¹⁵⁸ See Appellate Body Report, United States—Import Prohibition of Certain Shrimp & Shrimp Products, Recourse to Article 21.5 of the DSU by Malaysia, paras. 153–54, WTO Doc. WT/DS58/AB/RW (adopted Nov. 21, 2001); Appellate Body Report, United States—Import Prohibition of Certain Shrimp & Shrimp Products, para. 121, WTO Doc. WT/DS58/AB/R (adopted Nov. 6, 1998); Diane A. Desierto, Public Policy in International Investment and Trade Law: Community Expectations and Functional Decision-Making, 26 Fla. J. Int'l L. 51, 70–71 (2014) (“Despite some well-known victories … full acceptance of States’ regulatory freedom to enact policies that vindicate public interest or human rights concerns remains very much a work-in-progress throughout the WTO system.” (footnotes omitted)).

¹⁵⁹ See, e.g., Bartels, Lorand, The Chapeau of the General Exceptions in the WTO GATT and GATS Agreements: A Reconstruction, 109 AJIL 95, 96 (2015)CrossRef Google Scholar (explaining that trade measures have repeatedly been deemed noncompliant for failing to satisfy the chapeau of the provision with the public interest exceptions but that “it is still not clear what [the chapeau] requires”); Mitchell, Andrew D. & Henckels, Caroline, Variations on a Theme: Comparing the Concept of “Necessity” in International Investment Law and WTO Law, 14 Chi. J. Int'l L. 93, 155 (2013)Google Scholar (reviewing cases and concluding that “[t]he test has been expressed in a number of different ways and indeed seems to change each time it is articulated …”).

¹⁶⁰ Appellate Body Reports, European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, WTO Docs. WT/DS400/AB/R, WT/DS401/AB/R (adopted June 18, 2014) [hereinafter Seal Products].

¹⁶¹ See, e.g., Howse, Robert & Langille, Joanna, Permitting Pluralism: The Seal Products Dispute and Why the WTO Should Accept Trade Restrictions Justified by Noninstrumental Moral Values, 37 Yale J. Int'l L. 367, 430 (2012)Google Scholar (suggesting that the case is about whether, “by permitting pluralism, the WTO fulfills its own institutional mandate more effectively and does not unnecessarily encroach on the regulatory autonomy of member states”); Julia Y. Qin, Accommodating Divergent Policy Objectives Under WTO Law: Reflections on EC—Seal Products, AJIL Unbound (June 25, 2015, 11:42 AM), at http://www.asil.org/blogs/accommodating-divergent-policy-objectives-under-wto-law-reflections-ec%E2%80%94seal-products (claiming that the case is about how WTO law would “accommodate divergent legitimate purposes of domestic regulation”).

¹⁶² Seal Products, supra note 160, paras. 5.194–5.201.

¹⁶³ Id., paras. 5.338–.339.

¹⁶⁴ E.g., Gregory Shaffer & David Pabian, European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, 109 AJIL 154, 158–59 (2015); Donald H. Regan, Measures with Multiple Purposes: Puzzles from EC–Seal Products, AJIL Unbound (June 25, 2015, 11:41 AM), at https://www.asil.org/blogs/measures-multiple-purposes-puzzles-ec%E2%80%94seal-products; Joel Trachtman, The WTO Seal Products Case: Doctrinal and Normative Confusion, AJIL Unbound (June 25, 2015, 11:38 AM), at https://www.asil.org/blogs/wto-seal-products-case-doctrinal-and-normative-confusion; Qin, supra note 161. But cf. Howse, Robert, Langille, Joanna & Sykes, Katie, Pluralism in Practice: Moral Legislation and the Law of the WTO After Seal Products , 48 Geo. Wash. Int'l L. Rev. 81, 149 (2015)Google Scholar (arguing that, though the Appellate Body ideally would not have “sacrifice[d] clarity,” its decision “was ultimately not as problematic” as others say because it “was generally rooted in an appropriate and subtle understanding of the WTO's institutional role”).

¹⁶⁵ I focus in the main text on the participation of nongovernmental organizations. Other membership conflicts in the WTO have concerned: (1) the participation of particular states, (2) the dominance of an insider group in decisionmaking, (3) the limited opportunities for direct stakeholder involvement, (4) the apparent disenfranchisement of developing countries, and (5) the role or influence of other intergovernmental bodies. For tastes of these other conflicts, see Yves Bonzon, Public Participation and Legitimacy in the WTO (2014); Sarah Joseph, Blame It on the WTO? 56–90 (2011); Bhala, Raj, Enter the Dragon: An Essay on China's WTO Accession Saga, 15 Am. U. Int'l L. Rev. 1469 (2000)Google Scholar; Shaffer, Gregory & Trachtman, Joel, Interpretation and Institutional Choice at the WTO, 52 Va. J. Int'l L. 103, 127–35 (2011)Google Scholar; Stewart & Badin, supra note 151.

¹⁶⁶ See, e.g., Charnovitz, Steve, Opening the WTO to Nongovernmental Interests, 24 Fordham Int'l L.J. 173 (2000)Google Scholar; Nichols, Philip M., Realism, Liberalism, Values, and the World Trade Organization, 17 U. Pa. J. Int'l Econ. L. 851 (1996)Google Scholar; Shaffer, Gregory C., The World Trade Organization Under Challenge: Democracy and the Law and Politics of the WTO's Treatment of Trade and Environment Matters, 25 Harv. Envtl. L. Rev. 1, 61–68 (2001)Google Scholar.

¹⁶⁷ See WTO General Council, Guidelines for Arrangements on Relations with Non-Governmental Organizations, WTO Doc. WT/L/162 (July 23, 1996) [hereinafter NGO Guidelines]; see also Howse, Robert, Membership and Its Privileges: The WTO, Civil Society, and the Amicus Brief Controversy, 9 Eur. L.J. 496, 497 (2003)CrossRef Google Scholar [hereinafter Howse, Membership and Its Privileges] (explaining that these opportunities were marginal and intentionally disconnected from the hub of WTO decisionmaking).

¹⁶⁸ NGO Guidelines, supra note 167, para. VI.

¹⁶⁹ See Appellate Body Report, United States–Import Prohibition of Certain Shrimp & Shrimp Products, paras. 106–10, WTO Doc. WT/DS58/AB/R (adopted Nov. 6, 1998) (deciding that WTO panels may consider unsolicited NGO amicus briefs); Appellate Body Report, United States–Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, paras. 39–42, WTO Doc. WT/DS138/AB/R (adopted June 7, 2000) (deciding that the Appellate Body has this authority).

¹⁷⁰ A similar conflict about amicus briefs has recently been playing out in international investment law. For an overview, see Gómez, Katia Fach, Perspective, LLM, Rethinking the Role of Amicus Curiae in International Investment Arbitration: How to Draw the Line Favorably for the Public Interest, 35 Fordham Int'l L.J. 510 (2012)Google Scholar.

¹⁷¹ Appellate Body Report, European Communities—Measures Affecting Asbestos and Asbestos-Containing Products, paras. 50–52, WTO Doc. WT/DS135/AB/R (adopted Apr. 5, 2001).

¹⁷² See WTO Gen. Council, Minutes of Meeting of Nov. 22, 2000 (Jan. 23, 2001), at https://docsonline.wto.org/dol2fe/Pages/SS/DirectDoc.aspx?filename=t%3A%2Fwt%2Fgc%2Fm60.doc&.

¹⁷³ Id., para. 5.

¹⁷⁴ Id., para. 6; see also, e.g., id. at 50 (Mexican statement that the Appellate Body “arrogated to itself a right that belonged solely to WTO members acting collectively”); id., para. 55 (Colombian statement on behalf of the ANDEAN members that “[t]he power to create a procedure such as the one proposed rested exclusively with Members”); id., para. 57 (Zimbabwean statement that the Appellate Body “usurped Members’ authority”).

¹⁷⁵ Id., para. 7.

¹⁷⁶ Id., para. 16.

¹⁷⁷ Id., para. 38.

¹⁷⁸ On the point that this dispute was about much more than the amicus briefs, see Weiler, J. H. H., The Rule of Lawyers and the Ethos of Diplomats: Reflections on WTO Dispute Settlement, in Efficiency, Equity, and Legitimacy: The Multilateral Trading System at the Millennium 334, 344 (Porter, Roger B., Suavé, Pierre, Subramanian, Arvind & Zampetti, Americo Beviglia eds., 2001)Google Scholar; Howse, Membership and Its Privileges, supra note 167, at 509.

¹⁷⁹ See Appellate Body Report, European Communities—Measures Affecting Asbestos and Asbestos-Containing Products, paras. 55–56, WTO Doc. WT/DS135/AB/R (adopted Apr. 5, 2001).

¹⁸⁰ See De Brabandere, Eric, NGOs and the “Public Interest”: The Legality and Rationale of Amicus Curiae Interventions in International Economic and Investment Disputes, 12 Chi. J. Int'l L. 85, 87, 110 (2011)Google Scholar.

¹⁸¹ See Sapra, Seema, The WTO System of Trade Governance: The Stale NGO Debate and the Appropriate Role for Non-state Actors, 11 Or. Rev. Int'l L. 71, 90–95 (2009)Google Scholar. But cf. Van den Bossche, Peter, NGO Involvement in the WTO: A Comparative Perspective, 11 J. Int'l Econ. L. 717, 747 (2008)CrossRef Google Scholar (arguing that NGO participation is still low).

¹⁸² See Bonzon, supra note 165, at 1–7.

¹⁸³ Dunoff, Jeffrey L., Public Participation in the Trade Regime: Of Litigation, Frustration, Agitation, and Legitimation, 56 Rutgers L. Rev. 961, 965 (2004)Google Scholar.

¹⁸⁴ Mavroidis, Petros C., Curiae, Amicus Briefs Before the WTO: Much Ado About Nothing, in European Integration and International Co-ordination 317 (von Bogdandy, Armin, Mavroidis, Peter C. & Mény, Yves eds., 2002)Google Scholar.

¹⁸⁵ See World Trade Organization, Ministerial Declaration of 14 November 2001, para. 3, WTO Doc. WT/MIN(01)/DEC/1, 41 ILM 746 (2002) (pledging to “address[] the marginalization of least-developed countries in international trade and to improv[e] their effective participation in the multilateral trading system”).

¹⁸⁶ E.g., The Schooner Exchange v. M'Faddon, 11 U.S. (7 Cranch) 116, 137 (1812) (justifying immunity by the “perfect equality and absolute independence of sovereigns, and [the] common interest impelling them to mutual intercourse, and an interchange of good offices with each other”); Caplan, Lee M., State Immunity, Human Rights, and Jus Cogens: A Critique of the Normative Hierarchy Theory, 97 AJIL 741, 748 (2003)CrossRef Google Scholar (describing these justifications as the “two leading rationales … [for] the doctrine”).

¹⁸⁷ See id. at 748–55.

¹⁸⁸ Ratner, supra note 1, at 203.

¹⁸⁹ Antonio Cassese, International Law 100–01 (2d ed. 2005)Google Scholar; Malcolm N. Shaw, International Law 512–16 (7th ed. 2014)Google Scholar.

¹⁹⁰ See H.R. Rep. No. 94-1487, at 45 (1976) (explaining that the “broad purposes” of the U.S. Foreign Sovereign Immunities Act were “to facilitate and depoliticize litigation against foreign states and to minimize irritations in foreign relations arising out of such litigation …”); Lauterpacht, H., The Problem of Jurisdictional Immunities of Foreign States, 28 Brit. Y.B. Int'l L. 220, 240 (1951)Google Scholar (“From the point of view of securing a friendly atmosphere in international relations judicial remedies against foreign states may be preferable to diplomatic action necessitated by the refusal of those states to submit to jurisdiction.”).

¹⁹¹ Cf. Jurisdiction of U.S. Courts in Suits Against Foreign States: Hearings on H.R. 11315 Before the Subcomm. on Admin. Law and Governmental Relations of the H. Comm. on the Judiciary, 94th Cong. 80 (1976) (testimony of Cecil J. Olmstead, Chairman, Rule of Law Comm. and Vice President, Texaco Co., accompanied by Timothy Atkeson, Counsel) (“Enactment of this bill[] … should substantially reduce certain risks of doing business with foreign governmental entities, reduce costly litigation over immunity issues, and thus benefit the American business community as a whole.”).

¹⁹² Akehurst, Michael, Reprisals by Third States, 44 Brit. Y.B. Int'l L. 1, 15–16 (1970)Google Scholar.

¹⁹³ Stephen C. McCaffrey, Lex Lata or the Continuum of State Responsibility, in International Crimes of State, supra note 106, at 242, 244 (“It would seem that any situation allowing each member of the international community to take individual action would amount to a state of vigilantism, and thus simply be an invitation to chaos.”); Weil, Prosper, Towards Relative Normativity in International Law?, 77 AJIL 413, 433 (1983)CrossRef Google Scholar (“[U]nder the banner of law, chaos and violence would come to reign… .”); see also, e.g., Hutchinson, D.N., Solidarity and Breaches of Multilateral Treaties, 59 Brit. Y.B. Int'l L. 151, 202 (1988)Google Scholar (“To leave each State to determine its own right to respond to an international crime might, therefore, let loose ‘a sort of international vigilantism … .’” (footnote omitted)).

¹⁹⁴ For examples of countermeasures or other unfriendly measures strengthening legal relationships, see Hakimi, Monica, Unfriendly Unilateralism, 55 Harv. Int'l L.J. 105, 126–38 (2014)Google Scholar.

¹⁹⁵ Dawidowicz, Third-Party Countermeasures, supra note 115, at 6–7.

¹⁹⁶ See Tams, supra note 80, at 229 (reviewing the state practice on such countermeasures and concluding that “[t]heir actual effects were often rather trivial”).

¹⁹⁷ See, e.g., Karen J. Alter, The New Terrain of International Law 4 (2014); Yuval Shany, Assessing the Effectiveness of International Courts 48 (2014). The idea that adjudicative institutions exist to resolve disputes is evident even in the language that is most often used to describe them—as “dispute settlement” bodies.

¹⁹⁸ See supra Part IV.A.

¹⁹⁹ See Pauwelyn, Joost, The WTO 20 Years On: ‘Global Governance by Judiciary’ or, Rather, Member-Driven Settlement of (Some) Trade Disputes Between (Some) WTO Members?, 27 Eur. J. Int'l L. (forthcoming)Google Scholar (manuscript at 4), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2864413.

²⁰⁰ See Howse, The WTO 20 Years On, supra note 155, at 19 (explaining that because “remedies are only prospective,” there is in effect “a ‘free ride’ to violate WTO obligations for several years, given the length of time the dispute process takes”).

²⁰¹ Gabčíkovo-Nagymaros Project (Hung./Slovk.), Judgment, 1997 ICJ Rep. 7 (Sept. 25).

²⁰² Id., paras. 59, 77, 87–88.

²⁰³ Id., para. 142.

²⁰⁴ Id., para. 141 (“[I]t is not for the Court … [but] for the Parties themselves to find an agreed solution that takes account of the objectives of the Treaty, which must be pursued in a joint and integrated way… .”).

²⁰⁵ See Jana Liptáková, State Takes Control of Gabcíkovo, Slovak Spectator (Mar. 23, 2015), at http://spectator.sme.sk/c/20056626/state-takes-control-of-gabcikovo.html.

²⁰⁶ See sources at supra note 164 (criticizing WTO Appellate Body decision in Seal Products); Helfer, Laurence R., The Effectiveness of International Adjudicators, The Oxford Handbook of International Adjudication 464–70 (Romano, Cesare P.R., Alter, Karen J. & Shany, Yuval eds., 2014)Google Scholar (reviewing literature and explaining that the efficacy of these bodies is almost always assessed in terms of whether they actually resolve disputes or clarify the law); Phoebe N. Okowa, Case Concerning the Gabcíkovo-Nagymaros Project (Hungary/Slovakia), 47 Int'l & Comp. L.Q. 688, 697 (1998) (characterizing the judgment as an abdication of judicial responsibility); Shaffer, Gregory, Elsig, Manfred & Puig, Sergio, The Extensive (but Fragile) Authority of the WTO Appellate Body, 79 L. & Contemp. Probs., 237, 269–70 (2016)Google Scholar (“Another, even more troubling tactic to avoid the WTO's impact is ‘uncompliance,’ in which a Member formally complies with a ruling but adopts other measures that have an equivalent protectionist effect that nullifies the ruling's impact.” (emphasis added)).

²⁰⁷ Cf. Weiler, supra note 178, at 339 (“[D]isputes that go to adjudication are not settled; they are won and lost.”).

²⁰⁸ E.g., Dirk Pulkowski, The Law and Politics of International Regime Conflict 191 (2014) (“The simultaneous coverage of one and the same situation by the rules of various regimes—and thus the potential for their conflict—is the intentional product of political bargaining.”); Surabhi Ranganathan, Strategically Created Treaty Conflicts and the Politics of International Law 6–7 (2014) (describing the practice of creating new treaties to undercut or challenge existing treaties); Helfer, Laurence R., Regime Shifting: The TRIPs Agreement and New Dynamics of International Intellectual Property Lawmaking, 29 Yale J. Int'l L. 1, 53–62 (2004)Google Scholar [hereinafter Helfer, Regime Shifting] (arguing that developing countries use “regime shifting” to, among other things, try to “revise or supplement existing intellectual property rules”); Morse, Julia C. & Keohane, Robert O., Contested Multilateralism, 9 Rev. Int'l. Org. 385, 387–88 (2014)Google Scholar (coining the term “contested multilateralism” for the phenomenon and showing that it occurs across substantive areas of international law); Raustiala, Kal & Victor, David G., The Regime Complex for Plant Genetic Resources, 58 Int'l Org. 277, 301–02 (2004)CrossRef Google Scholar (using the experience on plant genetic resources to show “that states may also attempt to create what we term strategic inconsistency”).

²⁰⁹ For more detailed descriptions of this example, see Mark A. Pollack & Gregory C. Shaffer, When Cooperation Fails: The International Law and Politics of Genetically Modified Foods (2009); Gehring, Thomas & Faude, Benjamin, A Theory of Emerging Order Within Institutional Complexes: How Competition Among Regulatory International Institutions Leads to Institutional Adaptation and Division of Labor, 9 Rev. Int'l Org. 471, 483–87 (2014)Google Scholar.

²¹⁰ Agreement on the Application of Sanitary and Phytosanitary Measures, Art. 2.2, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 UNTS 493; see also id. Art. 5 (requiring risk assessment).

²¹¹ Cartagena Protocol on Biosafety to the Convention on Biological Diversity, Arts. 1, 2.4, Jan. 29, 2000, 2226 UNTS 208.

²¹² See Panel Report, European Communities—Measures Affecting the Approval and Marketing of Biotech Products, paras. 7.75, 7.92–7.95, 8.3–8.10, WTO Docs. WT/DS291/R, WT/DS292/2, WT/DS293/R (adopted Sept. 29, 2006).

²¹³ Cohen, supra note 1, at 1050 (“The absence of obvious or agreed-upon mechanisms for resolving these disputes has threatened to tear international law apart at the seams.”); Koskenniemi, Martti & Leino, Päivi, Fragmentation of International Law? Postmodern Anxieties, 15 Leiden J. Int'l L. 553, 560 (2002)CrossRef Google Scholar (“From the perspective of classical public international lawyers, conflicts between normative systems are, however, pathological.”); Michaels, Ralf & Pauwelyn, Joost, Conflict of Norms or Conflict of Laws?: Different Techniques in the Fragmentation of Public International Law, 22 Duke J. Comp. & Int'l L. 349, 350 (2012)Google Scholar (“There exists a widespread normative preference for coherence over fragmentation… .”).

²¹⁴ E.g., Gehring & Faude, supra note 209, at 472; Raustiala, Kal, Institutional Proliferation and the International Legal Order, in Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (Dunoff, Jeffrey L. & Pollack, Mark A. eds., 2012)Google Scholar.

²¹⁵ E.g., G. Hafner, Risks Ensuing from the Fragmentation of International Law, [2000] 2 Y.B. Int'l L. Comm'n 143, 147, UN Doc. A/CN.4/SER.A/2000/Add.1 (Part 2)/Rev.1 (asserting that such conflicts threaten the “credibility, reliability and consequently, authority of international law”); Pauwelyn, Joost & Salles, Luiz Eduardo, Forum Shopping Before International Tribunals: (Real) Concerns, (Im)possible Solutions, 42 Cornell Int'l L.J. 77, 83 (2009)Google Scholar (asserting that “inconsistent rulings can” both “leave [a] dispute unresolved” and “threaten the stability and legitimacy of the broader ‘system’ within which the tribunals operate”). But cf. Alvarez, José E., Beware: Boundary Crossings, in Boundaries of State, Boundaries of Rights: Human Rights, Private Actors, and Positive Obligations 92 (Kahana, Tsvi & Scolnicov, Anat eds., 2016)Google Scholar (“Some boundary crossings are desirable, and others are not. The legitimacy of the ‘international rule of law’ does not always require them.”).

²¹⁶ A common, related refrain is that powerful countries disproportionately benefit from institutional redundancy because they have the resources to exploit normative conflicts for their own ends. E.g., Benvenisti, Eyal & Downs, George W., The Empire's New Clothes: Political Economy and the Fragmentation of International Law, 60 Stan. L. Rev. 595, 597 (2007)Google Scholar. Some scholars have shown that weaker countries can also benefit, but these scholars have not contested the claim that the conflicts themselves undercut the legitimacy of international law. E.g., Helfer, supra note 208, at 82.

²¹⁷ See, e.g., Gehring & Faude, supra note 209, at 472 (claiming that the conflicts “undermine institutional commitments”); Pauwelyn & Salles, supra note 215, at 83 (claiming that the conflicts “threaten the stability and legitimacy of the broader ‘system’”… ).

²¹⁸ Coser, supra note 38, at 77 (“Stability within a loosely structured society … [is] partly as a product of the continuous incidents of various conflicts crisscrossing it.”); Gluckman, supra note 38, at 26 (“The more his ties require that his opponents in one set of relations are his allies in another, the greater is likely to be the peace of the feud.”); Gordon, Mark C., Differing Paradigms, Similar Flaws: Constructing A New Approach to Federalism in Congress and the Court, 14 Yale L. & Pol'y Rev., 187, 217–18 (1996)Google Scholar (“It is possible that America has managed to maintain stability even in an era of robust individual rights precisely because the divisions that define our political structure (i.e., states) do not coincide with the divisions that define our social and cultural structure (e.g., racial and ethnic groups and economic and national interests).”).

²¹⁹ Some scholars, especially those who work in critical legal theory or global legal pluralism, have likewise argued that we should create space for conflicts between communities. But these scholars either concede or do not address the claim that I am resisting—that when these conflicts are protracted, they undercut a governance association. E.g., Krisch, supra note 62, at 234 (“Any claim that pluralism might have the potential to foster stable cooperation faces an uphill battle: it has to cope with the widespread view that undecided supremacy claims tend to breed instability and chaos.”); Nollkaemper, André, Inside or Out: Two Types of International Legal Pluralism, in Normative Pluralism and International Law 94, 134 (Klabbers, Jan & Piiparinen, Touko eds., 2013)Google Scholar (claiming that a pluralist order lacks “the stability that is needed for deep international cooperation”); cf. Koskenniemi, supra note 57, at 608–15 (arguing for more political contestation to upend the “structural bias” in existing legal arrangements) (emphasis added). In fact, most global legal pluralists argue that, though normative conflicts are inevitable, international law should still try to reconcile or overcome them, insofar as is possible. See Berman, supra note 62, at 10 (arguing for mechanisms that “help mediate conflicts by … seeking ways of reconciling competing norms, and by deferring to alternative approaches, if possible”); Nico Krisch, Pluralism in International Law and Beyond, in Fundamental Concepts for International Law: The Construction of a Discipline (Jean d'Aspremont & Sahib Singh eds., forthcoming) (manuscript at 16), available at http://ssrn.com/abstract=2613930 (reviewing literature and concluding that “many pluralist accounts reflect a particular normative mission, often focused on respect for diversity and … a minimization of jurisdictional conflicts”).

²²⁰ See, e.g., Bodansky, Daniel, The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?, 93 AJIL 596, 605 (1999)Google Scholar (explaining that the legitimacy of international environmental law is often assessed by reference to state consent); Klabbers, Jan, Law-making and Constitutionalism, in The Constitutionalization of International Law 81, 114 (Klabbers, Jan, Peters, Anne & Ulfstein, Geir eds., 2009)CrossRef Google Scholar (defending the consensual underpinnings of the sources doctrine on the ground that “anything else would be dictatorial”); Pauwelyn, Joost, Wessel, Ramses A. & Wouters, Jan, When Structures Become Shackles: Stagnation and Dynamics in International Lawmaking, 25 Eur. J. Int'l L. 733, 748–49 (2014)CrossRef Google Scholar (arguing that the sources doctrine presents a legitimacy problem because it is satisfied by “thin state consent,” and that norms that do not formally satisfy the doctrine might be more legitimate because they might be made through more inclusive processes and “supported by a broader consensus”).

²²¹ On these dimensions, see Roughan, Nicole, Mind the Gaps: Authority and Legality in International Law, 27 Eur. J. Int'l L. 329, 340–41 (2016)CrossRef Google Scholar.

²²² See, e.g., Balkin, Jack M., Respect-Worthy: Frank Michelman and the Legitimate Constitution, 39 Tulsa L. Rev. 485 (2004)Google Scholar; Benhabib, Seyla, Claiming Rights Across Borders: International Human Rights and Democratic Sovereignty, 103 Am. Pol. Sci. Rev. 691, 698 (2009)CrossRef Google Scholar.

²²³ Ronald Dworkin, Law's Empire 88–90 (1986).

²²⁴ See, e.g., UN Secretary-General, Report on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc. S/2004, 616, para. 6 (2004) (asserting that the rule of law “requires … measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency”); Kumm, Mattias, International Law in National Courts: The International Rule of Law and the Limits of the Internationalist Model, 44 Va. J. Int'l L. 19, 25 (2003)Google Scholar (“Not only does the international rule of law instill a habit of obedience, thereby civilizing the exercise of power; but the requirement of consistency would also provide greater predictability and a more stable international environment.”).

²²⁵ Kutz, supra note 69, at 1028.

²²⁶ Id. at 1029; see also Waldron, Jeremy, The Rule of Law as a Theater of Debate, in Dworkin and His Critics 319, 330 (Burley, Justine ed., 2004)Google Scholar (“A society ruled by law, according to Dworkin, is a society committed to a certain method of arguing about the exercise of public power.”).

²²⁷ This claim is central to many compliance theories. E.g., Chayes & Chayes, supra note 124, at 10 (“[A]mbiguity and indeterminacy of treaty language” “lie at the root of much of the behavior that might seem to violate treaty requirements.”); Franck, Thomas M., Legitimacy in the International System, 82 AJIL 705, 714 (1988)CrossRef Google Scholar (“A determinate rule is less elastic and thus less amenable to … evasive strategy than an indeterminate one.”); Guzman, Andrew T., A Compliance-Based Theory of International Law, 90 Calif. L. Rev. 1823, 1863 (2002)CrossRef Google Scholar (“As the uncertainty of an obligation increases, the reputational cost from a violation decreases.”).

²²⁸ See Besson, supra note 13, at 117 (“Knowing precisely where we stand is not always the point of a provision: instead, the point may be to ensure that certain reasonable debates take place in our society rather than to settle them entirely.”).

²²⁹ See Broude, Tomer, The Rule(s) of Trade and the Rhetos of Development: Reflections on the Functional and Aspirational Legitimacy of the WTO, 45 Colum. J. Transnat'l L. 221 (2006)Google Scholar; Weiler, supra note 178.

²³⁰ See, e.g., Howse, Robert & Nicolaïdis, Kalypso, Toward a Global Ethics of Trade Governance: Subsidiarity Writ Large, 79 L. & Contemp. Probs., 259, 266–67 (2016)Google Scholar; Stewart & Badin, supra note 151, at 579.

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