Roger Paul Alford

Misusing International Sources to Interpret the Constitution

In the keynote address to the 2003 annual meeting of the American Society of International Law, Justice Stephen Breyer declared that “comparative analysis emphatically is relevant to the task of interpreting constitutions and enforcing human rights.” Justice Breyer concluded that nothing could be “more exciting for an academic, practitioner, or judge than the global legal enterprise that is now upon us.” In a room filled with international lawyers and academics, he received a home court standing ovation.

The Claims Resolution Tribunal

The Claims Resolution Tribunal (CRT) in Zurich, Switzerland is among the most unusual international tribunals in history. What started as an international claims process to resolve Holocaust bank claims became an international judicial body working under the supervision and control of a United States federal court. The CRT became a Special Master of Judge Korman of the Eastern District of New York. Its significance rests not so much in its cases as in its structure. Most of the cases are insignificant from a doctrinal perspective. It is the process of distribution that is its lasting legacy. The establishment of a hybrid process that is both international and domestic is a testament to the creativity of all involved the governments, the private litigants, and the adjudicators. Keywords:Claims Resolution Tribunal (CRT); Holocaust bank; Korman; Nazi persecution

Moral Reasoning in International Law

Individuals comply with rules for different reasons. Some do so out of fear of punishment, others out of respect for social order, while still others out of a perception that a norm has intrinsic moral force. States, acting through human agents, likewise differ in the reasons they comply with international norms. State compliance with such norms may be motivated by a desire to avoid sanctions, obedience to authority, utilitarian compliance, socialization, reputational concerns, or norm internalization. Traditional accounts of international law compliance have focused on one or another of these motivations to the exclusion of others, thus failing to present the whole picture.We challenge these traditional accounts and instead present a “moral reasoning” theory that seeks a wider understanding of the reasons states comply. We focus less on traditional debates in international law largely because our theory better accounts for how people make and carry out international-law compliance decisions in real life. Moral reasoning is how people give reasons or arguments in the context of moral judgment. In turn, moral judgment is the cognitive process that people use to choose between inconsistent interests, values claims, and norms – where the inconsistency means the person is pulled toward opposite behaviors. These decisions are “moral” because they involve the ordering of self- and other-regarding interests. Our law-and-psychology focus tries to show how human agents who “do” international law conceive of their relationship with specific norms, with each other, and with the structure of international society. Scholars have largely bracketed reasoning by agents acting on the state’s behalf – surprisingly, even in the constructivist project. We attempt to fill that gap with a law-and-psychology approach that follows an emerging scholarly agenda in understanding the psychological bases of motivation to obey norms and the law. As we show in Part II, existing scholarly explanations for state compliance with international law emphasize one motivating logic over all others – for example, instrumental over normative thinking. But a realistic model of how political actors respond to international norms would situate the compliance motive within multiple motivational logics. Our argument proceeds like this. In Part II, we describe existing compliance theories and explain how these theories fail to tell the whole story. In Part III, we explain Kohlberg’s theories and argue that, as applied in international law, they fill this gap. Assuming that successful political actors have progressed through the stages of Kohlberg’s theory, they will have a plethora of rhetorical options to choose from. In justifying compliance or noncompliance, actors’ choice of a given rhetorical strategy – for example, “ethical” over instrumental language, or vice versa – will depend on moral atmosphere: the audience’s predominant reasoning stage (an empirical question) and the actor’s relationship with the audience. Finally, in Part IV, we consider this thickly descriptive theory in the context of case studies about contemporary moral dilemmas in international law.