From Contract to Legislation: The Logic of Modern International Lawmaking

The future of international lawmaking is in peril. Both trade and climate negotiations have failed to produce a multilateral agreement since the mid-1990s, while the U.N. Security Council has been unable to comprehensively respond to the humanitarian crisis in Syria. In response to multilateralism’s retreat, many prominent commentators have called for international institutions to be given the power to bind holdout states — often rising or reluctant powers such as China and the United States — without their consent. In short, these proposals envision international law traveling the road taken by federal systems such as the United States and the European Union: from contractual lawmaking, in which states are free to make commitments to each other and free to decline commitments to which they object, to legislative lawmaking, in which states — through international institutions — make collective decisions about what legal obligations to undertake. In this Article, I argue that international legislatures — institutions such as the Ministerial Conference of the World Trade Organization (WTO) and the Conference of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC) that make collective decisions about the legal obligations that members may make to each other — are already numerous. But international legislatures of the kind envisioned by global government’s proponents are unlikely to emerge because the rise of international legislatures is not driven by the desire to reduce the role of holdouts. To the contrary, I contend that legislatures exist to magnify the ability of holdouts to stall and even paralyze lawmaking. Further, I argue that the increased importance of holdouts is, within limits, beneficial for international lawmaking. In contractual lawmaking, states are free to expel holdouts from negotiations and make commitments among a smaller group of the willing. Moving from contract to legislation removes this freedom. In the U.S. Congress, the minority’s holdup power is created through procedures such as the filibuster in the Senate and the committee system, under which a proposal with majority support can nevertheless fail to obtain a floor vote due to the opposition of a few key committee members. In international legislatures, this holdup power is created chiefly through a process known as “adoption,” which requires that an institution as a whole, usually by consensus, approve an agreement before any individual member state can sign and ratify it. Adoption does not imply that member states will ratify or be bound by the agreement; as with agreements like the Kyoto Protocol, some states that vote for adoption will not ratify the agreement. Instead, one of the adoption procedure’s main effects is to empower states with no intention of joining a treaty to nevertheless veto its enactment by cooperation-minded states. The increased holdup power created by legislatures is a feature, not a bug. This holdup power is beneficial because it allows states to enforce legislative bargains: deals in which a state makes concessions in one negotiation in exchange for another state’s concessions in a later related negotiation. Such iterative negotiations — found in free trade talks, environmental regimes, and efforts to establish a robust international criminal law — are a hallmark of modern international lawmaking. Absent some enforcement mechanism, though, states would be unwilling to “trade votes” across negotiations out of fear that other parties would not uphold their end of the bargain. International legislatures thus do not lubricate international lawmaking by allowing states to be bound against their will. Quite the opposite, international legislatures facilitate lawmaking by allowing states to stall lawmaking in the event that a legislative bargain is violated. This rationale for holdup power explains a number of puzzles in international law. In particular, it explains why international legislatures have not adopted robust majoritarian voting and further clarifies how international institutions enforce international law, which critics often claim is unenforceable

Convention on the Rights of Persons with Disabilities - Testimony of Timothy L. Meyer before the U.S. Senate Committee on Foreign Relations

Testimony of Timothy L. Meyers before the U.S. Senate Foreign Relations Committee on November 5, 2013 concerning the Convention on the Rights of Persons with Disabilities

Towards a Communicative Theory of International Law

Does international law\u27s effectiveness require a clear distinction between law and non-law? This essay, which reviews Jean d\u27Aspremont\u27s Formalism and the Sources of International Law, argues the answer is no. Ambiguity about the legal nature of international instruments has important benefits. Clarity in the law may encourage states to do the minimum necessary to comply, while some uncertainty about what the law requires may induce states to take extra efforts to ensure they are in compliance. Ambiguity in the law also promotes dynamic change, an important feature in rapidly developing areas of the law such as international environmental law and human rights. Most importantly, though, soft law — international instruments that have legal consequences but are not unambiguously \u27law\u27 — expands the range of instruments available to states when cooperating. Institutionalist theories of international law suggest that a larger menu of international instruments is valuable because it allows states to calibrate the level of their commitments more precisely, thereby expanding their ability to cooperate. Institutional theories, however, have heretofore not explained exactly how states communicate to each other the level of their commitment; that is, they have not explained how states mark an instrument as soft law and whether and how states distinguish between types of soft law commitments. A theory of law-identification based on linguistic norms, such as d\u27Aspremont proposes, offers a descriptive account of how states might signal levels of legal commitment beyond the dichotomy of \u27binding\u27 and \u27non-binding\u27 law. A communicative theory of international law — one based on the use of language in international instruments to signal relatively fine-grained variation in the level of commitment — thus would enrich our understanding of what soft law is, and when and how states use it

Book Review, International Organizations: Politics, Law, Practice (2010)

This essay reviews Ian Hurd’s International Organizations: Politics, Law, Practice. International law and international relations scholars are increasingly interested in the variation in the structures and powers of international organizations, as well as how that variation affects state decisions to comply with international law. Hurd’s book offers a nuanced overview of the relationship between the legal powers of international organizations and the political contexts in which they operate. The book uses eight case studies, including the United Nations, the World Trade Organization, the International Court of Justice, and the International Labor Organization, to assess how different political environments and institutional powers affect state compliance with legal obligations. The book is thus very valuable for its comparative approach to international organizations and its keen insights into the relationship between law and politics. This essay raises two additional concerns. First, compliance is a useful metric for measuring the effect of international law and international institutions, but it risks oversimplifying the process of legal contestation in which states engage. Measuring state compliance is at best an imperfect proxy for the effectiveness of international legal rules because it does not tell us anything about how much the law required states to change their status quo behavior. Moreover, legal rules are indeterminate to varying degrees and so international legal process is often as much about an ongoing negotiation of a legal rule’s meaning as it is about assessing compliance with that rule. A binary distinction between compliant and non-compliant actions thus risks obscuring the dynamic process of negotiation and renegotiation that characterizes the international legal system. Second, the institutionalization of international legal relations exhibits much wider variation than the case studies in the book might suggest. While the case studies include some of the most important international organizations, many critically important international issues are negotiated in what are essentially thinly institutonalized IOs, such as the Conference of the Parties to the United Nations Framework Convention on Climate Change. Although beyond the scope of this book, the affect of subjecting inter-state bargaining to the rules of procedures of such institutions is worthy of greater study

International Soft Law

Although the concept of soft law has existed for years, scholars have not reached consensus on why states use soft law or even whether “soft law” is a coherent analytic category. In part, this confusion reflects a deep diversity in both the types of international agreements and the strategic situations that produce them. In this paper, we advance four complementary explanations for why states use soft law that describe a much broader range of state behavior than has been previously explained. First, and least significantly, states may use soft law to solve straightforward coordination games in which the existence of a focal point is enough to generate compliance. Second, under what we term the loss avoidance theory, moving from soft law to hard law generates higher sanctions that both deter more violations and, because sanctions in the international system are negative sum, increase the net loss to the parties. States will choose soft law when the marginal costs in terms of the expected loss from violations exceed the marginal benefits in terms of deterred violations. Third, under the delegation theory, states choose soft law when they are uncertain about whether the rules they adopt today will be desirable tomorrow and when it is advantageous to allow a particular state or group of states to adjust expectations in the event of changed circumstances. Moving from hard law to soft law makes it easier for such states to renounce existing rules or interpretations of rules and drive the evolution of soft law rules in a way that may be more efficient than formal renegotiation. Fourth, we introduce the concept of international common law (ICL), which we define as a nonbinding gloss that international institutions, such as international tribunals, put on binding legal rules. The theory of ICL is based on the observation that, except occasionally with respect to the facts and parties to the dispute before it, the decisions of international tribunals are nonbinding interpretations of binding legal rules. States grant institutions the authority to make ICL as a way around the requirement that states must consent in order to be bound by legal rules. ICL affects all states subject to the underlying rule, regardless of whether they have consented to the creation of the ICL. As such, ICL provides cooperationminded states with the opportunity to deepen cooperation in exchange for surrendering some measure of control over legal rules. These four explanations of soft law, and in particular the theory of ICL, provide a firm justification for the coherence of soft law as an analytic category. They demonstrate that legal consequences flow from a range of nonbinding international instruments, just as nonbinding documents in the domestic setting, such as legislative committee reports, often have legal consequences when, for example, used to interpret binding rules. Moreover, the theories offered in this paper explain the circumstances under which this quasi-legal characteristic of soft law will be attractive to states

International Common Law: The Soft Law of International Tribunals

Rising legalization in the international community has lead to greater use of international tribunals and soft law. This paper explores the intersection of these instruments. The decision of an international tribunal interprets binding legal obligations but is not itself legally binding except, in some instances, as between the parties. The broader, and often more important function of a tribunal\u27s decision - its influence on state behavior beyond the particular case and its impact on perceptions regarding legal obligations - is best characterized as a form of soft law. Despite its inability to bind states, a tribunal can influence state behavior by implicating a state\u27s reputation for compliance with international law, by bolstering the reciprocity underlying an agreement, or by triggering retaliation. In this sense the rulings of a tribunal influences states through the same mechanisms as does binding international law. Because tribunal rulings are soft law, however, they avoid the need for unanimity among states, thereby making it easier for the legal system (including the non-binding aspects of that system) to adapt to changing circumstances and conditions. By establishing a tribunal to interpret legal obligations in a way that gives rise to a soft law jurisprudence, therefore, states are able to expand the tribunal\u27s influence beyond those states that submit to the tribunal\u27s jurisdiction. In effect, all states subject to the underlying legal obligation come to be subject to the soft law impact of the tribunal, regardless of whether they have formally submitted to the tribunal\u27s jurisdiction. In this way tribunals create what can be called an international common law able to evolve without formal agreement from states

Economic Development in Nonmetropolitan Nebraska: Internet Use, Nature-Based Tourism, Federal Tax Policy and Workforce Development: 2018 Nebraska Rural Poll Results

Conclusion The proportion of rural Nebraskans accessing the Internet using their cell phone has increased compared to two years ago. But, the proportion subscribing to high-speed Internet service at home remained stable during the past two years. Persons living in or near the smallest communities are less likely than persons living in or near larger communities to have high-speed Internet service at home. Not many rural Nebraskans report significant limitations from their home Internet service on their ability to do most tasks. At least one in ten report being limited significantly or not being able to play real time video games or stream online video content such as Netflix. However, persons living in or near smaller communities experience more limitations than do those living in or near larger communities. And, regional differences also occur, with the residents of both the Northeast and Southeast regions experiencing more limitations performing such tasks as streaming online video content, playing real time video games and videoconferencing. Most rural Nebraskans are using the Internet to save money by price matching, finding bargains online, etc. Many are also using it to generate income by occasionally buying, selling or trading items online. Seven percent of rural Nebraskans estimate the impact of saving money as $1,000 or more annually. For some items, the economic impact of the Internet is greater in smaller communities. Persons living in or near smaller communities are more likely than persons living in or near larger communities to have used the Internet to earn money by running and growing a home-based business and making the family farm more efficient and/or profitable. Persons with occupations in agriculture are also generating income by running and growing a home-based business, making the family farm more efficient and/or profitable, and regularly selling online. Most rural Nebraskans are aware of the following nature-based activities for tourists in or near their community: biking, hunting and fishing, hiking/walking trails and camping. Many are also aware of kayaking, canoeing or other river activities. Overall, many rural Nebraskans are unsure of the expected impacts of the federal tax bill. At least three in ten indicated they don’t know how the bill will impact all of the items listed. And, opinions are mixed on the expected impact of the federal tax bill on their household’s tax burden. At least three in ten rural Nebraskans think the services provided by government and upper income Americans’ tax burden will decrease as a result of the federal tax bill. Over one-third think the income gap between the upper and middle income groups and the federal deficit will increase as a result of the bill. Many rural Nebraskans have changed jobs and careers in the past ten years. Most rural Nebraskans expect to be in their same job ten years from now or until retirement. Few rural Nebraskans expect to switch careers in the next ten years. Most rural Nebraskans think individuals, colleges and universities, community colleges and primary (K–12) education have a lot of responsibility for job training or retraining

Media, Institutions and Voting: Perceptions of Nonmetropolitan Nebraskans: 2017 Nebraska Rural Poll Results

Conclusion Rural Nebraskans most trust information received from local news sources (TV and newspapers) and public sources (PBS and public radio). They least trust information from social networking sites and Internet blogs. Most rural Nebraskans are somewhat or very confident in their ability to recognize news that is made up. Most rural Nebraskans have confidence in their local institutions (public safety agencies in their community; public schools in their community; and voting and election systems in their county). On the other hand, over one-quarter of rural Nebraskans have very little confidence in the following national institutions: U.S. House of Representatives, U.S. Senate and the Presidency and executive branch of government. Most rural Nebraskans support early voting, requiring all voters to provide photo identification at their polling place in order to cast a ballot and automatic voter registration. Almost one-half support online voter registration. Most rural Nebraskans believe both votes being cast by people not eligible to vote and eligible voters not being allowed to cast a vote were either a minor or major problem in last year’s election. Over one-third of rural Nebraskans believe votes being cast by people not eligible to vote was a major problem. Over four in ten believe it was a minor problem. Fewer rural Nebraskans perceive eligible voters not being allowed to cast a vote as a problem. Two in ten believe this was a major problem and just under four in ten think it was a minor problem

Social Issues in Nonmetropolitan Nebraska: Perceptions of Social Stigma and Drug and Alcohol Abuse: 2018 Nebraska Rural Poll Results

Conclusion Many rural Nebraskans think it brings shame upon a person to do the following: file personal bankruptcy, apply for food stamps and apply for income assistance. Most rural Nebraskans disagree that the following items bring shame to a person: go to Alcoholics Anonymous or other alcohol treatment, seek mental health care, and go to drug treatment. In general, rural Nebraskans say that residents of their community are more likely than they personally are to think doing the items brings shame upon a person. At least one-third of rural Nebraskans think the following are a very serious problem or a crisis in their community: abuse of alcohol, use of methamphetamines, and use of marijuana. Persons living in or near larger communities are more likely than persons living in or near smaller communities to say each of the items listed are a very serious problem or crisis in their community. In addition, Panhandle residents are more likely than residents of other regions of the state to say the following are a very serious problem or crisis in their community: abuse of strong prescription painkillers, use of heroin and other opioids, use of methamphetamines, use of marijuana, and lack of immunizations for children. Opinions are mixed on the change in prescription painkiller abuse in their community compared to five years ago. Just over one-third don’t know how the abuse of prescription painkillers has changed and just under one-third said it is about the same. Just over three in ten believe the problem is worse than it was five years ago. Persons living in or near the largest communities are more likely than persons living in or near smaller communities to say the problem of prescription painkiller abuse in their community is worse than it was five years ago. And, residents of both the Panhandle and North Central regions are more likely than residents of other regions of the state to believe the problem of prescription painkiller abuse in their community is worse than it was five years ago. Just over one-quarter of rural Nebraskans say they or someone they know has been personally impacted by the abuse of prescription painkillers

Perceptions of Agriculture and the Economy in Nonmetropolitan Nebraska: 2017 Nebraska Rural Poll Results

Conclusion Most rural Nebraskans view their economic well-being as being dependent on agriculture. Over three-fourths feel their economic well-being is at least somewhat tied to agriculture. Economic dependence on agriculture has changed very little over the past seven years. The proportions reported in 2017 are almost identical to those from 2010. Similarly, most rural Nebraskans believe the economic well-being of their community is very much dependent on agriculture. Overall, over nine in ten rural Nebraskans feel their community’s economic well-being is at least somewhat tied to agriculture. Most rural Nebraskans say their job/income security is about the same as it was a year ago. The concern about job/income security was greater during the 2009 national economic recession compared to this downturn in the agricultural economy. However, most rural Nebraskans are uncertain they would find the kind of job they are looking for in their community. The level of uncertainty of finding the kind of job they would be looking for in their community was higher in 2009 than this year. This uncertainty was higher for persons living in or near smaller communities compared to those living in or near larger communities. Finally, many rural Nebraskans believe the current downturn in agriculture is about the same as other agriculture downturns of the past. Residents of the Panhandle are more likely than residents of other regions of the state to say the current downturn in agriculture is worse or much worse than previous downturns