Anne-Marie Slaughter

The Concept of Legalization

We develop an empirically based conception of international legalization to show how law and politics are intertwined across a wide range of institutional forms and to frame the analytic and empirical articles that follow in this volume. International legalization is a form of institutionalization characterized by three dimensions: obligation, precision, and delegation. Obligation means that states are legally bound by rules or commitments and therefore subject to the general rules and procedures of international law. Precision means that the rules are definite, unambiguously defining the conduct they require, authorize, or proscribe. Delegation grants authority to third parties for the implementation of rules, including their interpretation and application, dispute settlement, and (possibly) further rule making. These dimensions are conceptually independent, and each is a matter of degree and gradation. Their various combinations produce a remarkable variety of international legalization. We illustrate a continuum ranging from “hard†legalization (characteristically associated with domestic legal systems) through various forms of “soft†legalization to situations where law is largely absent. Most international legalization lies between the extremes, where actors combine and invoke varying degrees of obligation, precision, and delegation to create subtle blends of politics and law.

Legalized Dispute Resolution: Interstate and Transnational

We identify two ideal types of international third-party dispute resolution: interstate and transnational. Under interstate dispute resolution, states closely control selection of, access to, and compliance with international courts and tribunals. Under transnational dispute resolution, by contrast, individuals and nongovernmental entities have significant influence over selection, access, and implementation. This distinction helps to explain the politics of international legalization—in particular, the initiation of cases, the tendency of courts to challenge national governments, the extent of compliance with judgments, and the long-term evolution of norms within legalized international regimes. By reducing the transaction costs of setting the process in motion and establishing new constituencies, transnational dispute resolution is more likely than interstate dispute resolution to generate a large number of cases. The types of cases brought under transnational dispute resolution lead more readily to challenges of state actions by international courts. Transnational dispute resolution tends to be associated with greater compliance with international legal judgments, particularly when autonomous domestic institutions such as the judiciary mediate between individuals and the international institutions. Overall, transnational dispute resolution enhances the prospects for long-term deepening and widening of international legalization.

Introduction: Legalization and World Politics

In many issue-areas, the world is witnessing a move to law. As the century turned, governments and individuals faced the following international legal actions. The European Court of Human Rights ruled that Britains ban on homosexuals in the armed forces violates the right to privacy, contravening Article 8 of the European Convention on Human Rights. The International Criminal Tribunal for the Former Yugoslavia indicted Yugoslav president Slobodan Milosevic during a NATO bombing campaign to force Yugoslav forces out of Kosovo. Milosevic remains in place in Belgrade, but Austrian police, bearing a secret indictment from the International Criminal Tribunal, arrested a Bosnian Serb general who was attending a conference in Vienna. In economic affairs the World Trade Organization (WTO) Appellate Body found in favor of the United States and against the European Union (EU) regarding European discrimination against certain Latin American banana exporters. A U.S. district court upheld the constitutionality of the North American Free Trade Agreement (NAFTA) against claims that its dispute-resolution provisions violated U. S. sovereignty. In a notable environmental judgment, the new Law of the Sea Tribunal ordered the Japanese to cease all fishing for southern bluefin tuna for the rest of the year.

Revisiting the European Court of Justice

The European Court of Justice (ECJ) is widely recognized not only as an important actor in the process of European integration but also as a strategic actor in its own right. In the last four years the literature on the Court has dramatically expanded, nourishing a lively debate between neofunctionalists and intergovernmentalists. But this debate has now reached the limits of its usefulness. Both neofunctionalism and intergovernmentalism neglect the range of specific motives and constraints shaping the behavior of individual litigants and national courts; further, both insist on modeling the state as a unitary actor. New scholarship on public interest and corporate litigants in the EU and on the relationship between the ECJ and national courts highlights these failings. Reviewing the literature, this essay develops a model of the legal integration process that encompasses disaggregated state actors—courts, regulatory agencies, executives, and legislatures—interacting with both supranational institutions and private actors in domestic and transnational society. It distills new data and theoretical insights to specify the preferences of some of these actors and the constraints they face in implementing those preferences.

A Duty to Prevent

The unprecedented threat posed by terrorists and rogue states armed with weapons of mass destruction cannot be handled by an outdated and poorly enforced nonproliferation regime. The international community has a duty to prevent security disasters as well as humanitarian ones -- even at the price of violating sovereignty

Plaintiff's Diplomacy

TWENTY-FIRST-CENTURY America is one of the most litigious societies the world has ever known. Civil lawsuits in American courts are used to resolve an ever-expanding list of conflicts. But new forms of litigation can have powerful and wide-ranging consequences, both intended and unforeseen. This is especially obvious in one area long thought outside the power of domestic courts: foreign policy. Increasing numbers of individuals, including torture and terrorism victims, Holocaust survivors, and denizens of the dwindling Amazon rain forest, are now using lawsuits to defend their rights under international law. The defendants in these cases include multinational corporations, foreign government officials, and even foreign states themselves. And whoever wins, the cases are having a powerful impact on Americas international relations.

Response to Finnemore and Toope

Mark Twain has been quoted as saying, “It is admirable to do good. It is also admirable to tell others to do good—and a lot less trouble.†Twains perhaps apocryphal aphorism could be adapted to contemporary social science scholarship: It is admirable to articulate and seek to apply new concepts. It is also admirable to tell others what is wrong with their concepts—and a lot less trouble.Martha Finnemore and Stephen Toope, in their comment on our summer 2000 special issue of IO, “Legalization and World Politics,†seem to be following this adaptation of Twains advice. They think that our definition of legalization focuses too much on formalized constraints, that it does not relate closely to broader concepts of law, that we are too committed to a rational-strategic approach to politics, and that we do not have a theory of what generates obligation. They do not attempt, in their critique, to produce an alternative conceptualization that attains the breadth they seek without sacrificing conceptual and theoretical coherence. We thought that our own argument was both “dynamic†and “process-oriented,†so we look forward with interest to their attempt to improve on our work. We particularly look forward to a carefully designed research program that will evaluate fairly the many empirical claims that they advance.

The World of Webcraft: Using Networks Against Shadow Finance

In Western democracies, the political center is straining to hold. A nationalist, populist surge has driven the United Kingdom to vote to leave the European Union; has elected Donald Trump, who ran on a commitment to dismantle the U.S.-led liberal order; and is motivating the rise of right-wing nationalist politicians in Europe such as Marine Le Pen, who if elected as the French president could have sounded the death knell of European integration. Many factors have contributed to the anti-globalization backlash, but a major one, especially in the United States, is rising economic insecurity driven in part by inequality. Economists Gabriel Zucman and Emmanuel Saez recently found that, in the United States, “the rise of wealth inequality is almost entirely due to the rise of the top 0.1 percent wealth share.” From 1979 to 2012, the bottom 90 percent of American households saw their share of national wealth steadily decline, while the share held by the richest 0.1 percent grew from 7 percent to 22 percent. Today, the top 0.01 percent, a mere 16,000 families, own 11.2 percent of American wealth. One way the privileged few have been able to consolidate their wealth is through offshore tax evasion—a practice that has exploded since the 1980s but that emerged in the late 1920s, the last time the 0.1 percent held more than 20

Reflections on the 9/11 Decade

The events of 11 September 2001 shocked the Western world, catapulting the US and its allies into Afghanistan and Iraq. Ten years on, those conflicts have cost blood and treasure in the name of the ‘War on Terror’. How will history judge 9/11 and the decade that followed? A number of eminent policy-makers, academics and commentators offer their thoughts on the significance of 9/11 for the US, Europe and beyond.