Stephen J. Toope

Alternatives to “Legalization”: Richer Views of Law and Politics

The authors of “Legalization and World Politics” ( International Organization , 54, 3, summer 2000) define “legalization” as the degree of obligation, precision, and delegation that international institutions possess. We argue that this definition is unnecessarily narrow. Law is a broad social phenomenon that is deeply embedded in the practices, beliefs, and traditions of societies. Understanding its role in politics requires attention to the legitimacy of law, to custom and laws congruence with social practice, to the role of legal rationality, and to adherence to legal processes, including participation in laws construction. We examine three applications of “legalization” offered in the volume and show how a fuller consideration of laws role in politics can produce concepts that are more robust intellectually and more helpful to empirical research.

Slouching Towards New ‘Just’ Wars: The Hegemon after September 11th

Twentieth-century international law was in large part a struggle to reduce the evil of war by codifying a restrictive doctrine of ‘just war’. The US Administration under George W. Bush has made concerted efforts to resurrect an expansive doctrine of just war: one rooted in broad moral, rather than restrictive legal, assessments of threats and punishments. Existing rules ask us to pause and inquire whether war is necessary and just. The debate over Iraq laid bare failings in these rules, requiring action. Yet the need to limit resort to war is as great as ever. Legal rules cannot prevent the use of force; nor can they prevent violations that states perceive to be in their fundamental interests. Rather, international law provides a framework against which states’ actions are assessed, and imposes a heavy burden of justification. International law requires more specific, testable claims than can be offered by the rhetoric of evil.

Constructivism and International Law

Over the last decade or so a new dialogue has emerged between international relations (IR) theorists interested in the social creation of identity and who focus attention on the role of norms in international politics, and international law (IL) scholars for whom normative evolution is a stock-in-trade. These norm-interested IR thinkers have been labeled “constructivists.” Although we argue that constructivists have yet to fully exploit the mutual learning that is possible in the interaction of constructivist IR thinking and international legal theorizing, there is a promising openness to dialogue. Constructivism helps explain how IL can exist and influence behavior, and IL can help inform a richer understanding of the particular roles of different categories of norms in international society. Constructivist work has so far focused upon the building of social norms through interaction, and on the pathways through which they come to influence actors. Overall, too little effort has been expended upon tracing out the distinctions between social and legal norms, but there is nothing in constructivism that denigrates the distinction or resists such analysis, as some recent work has shown. In this chapter we canvass the reasons underlying the emergence of constructivist thought in IR, and trace out its major preoccupations (Part II). We then highlight key themes in constructivist engagement with IL (Part III), before detailing how international lawyers have deployed constructivist insights (Part IV). Next, we canvass central themes in the interdisciplinary dialogue between constructivism and international law (Part V). Finally, we evaluate the most salient insights and contributions of the literature to date, and identify gaps and productive directions for future work (Part VI).

The Nile Basin Regime: A Role for Law

This article explores the gradual transition of the Nile Basin regime from one that operated in a tense, highly competitive political and legal environment to one that is characterized by greater cooperation, coordination and stability. Through the lens of an interactional concept of international law, and drawing on the legal theory of Lon Fuller, the article examines the factors that have helped shape this evolution. It posits that, in the case of the Nile Basin regime, the influence of law in transforming the identities and interests of states is one of these factors.

Managing and allocating water resources: Adopting the integrated water resource management approach

Publisher Summary Global, regional and local water resources are subject to increasing demands. Implicit in the management of all water is the task of allocation. Allocation between uses that have become competing because of the rising overall demand will be contentious. This chapter shows that the information that underpins such contention is not just based on well-observed hydrology and rational economics. It has been shown that it is normal for identities, beliefs, and long established water using practices to have more weight in political discourses that mediate allocative outcomes than science. Public knowledge is constructed through discursive politics where scientists hold only marginal sway, unless they strategize like other interested actors. Hydrology, hydraulics, and economics will always have an important potential place in the way systems of integrated water resource management are developed, but science-based information can easily be overwhelmed by the arguments of water using interests who have a life and death stake in “who gets what, when and how.” Coalitions of the users of big volumes of water can easily build coalitions with flow up-hill to money and power. The issue of integrated water resource management is high amongst the concerns of the water science community and of water management professionals at the millennium because of a number of forces at work in the hydro-political complex.

Improving Asia-Pacific Science Collaboration

Recommendations affecting researchers, curricula, institutions, and tenure in the Asia-Pacific could increase innovation. Although there are important scientific contributions being made around the globe, the most dramatic new developments are taking place among nations in the Asia-Pacific. Of course, the United States and Japan have long been leading Asia-Pacific innovator nations in science and technology, and Australia and Canada have been solid contributors to knowledge. But it is the relatively new entrants from the Asia-Pacific that are changing the dynamic of science around the globe. Most extraordinary is the rise of China. According to a Royal Society report (1), the publications output of Chinese scientists is set to surpass that of U.S.-based scientists by 2013. Major investments in discovery and innovation are building capacity in Korea, Singapore, and Taiwan. Enhanced collaboration between institutions has the potential to lead to higher-impact research (2) and to tap the widening base of research expertise. Given the rapid rise in trade and economic cooperation among countries in the Asia-Pacific region, we propose that a concerted and immediate effort is required to enhance Asia-Pacific science collaboration.

History, mystery, and mastery

Three themes connect the comments offered by Dunoff, Koskenniemi, and Reus-Smit. Each is preoccupied, although in markedly different ways, by the way in which our interactional theory of international law may be shaped and misshaped by our place in time. Each is concerned to situate our explanation of international legal obligation along a continuum of internal and external critique and disciplinary and interdisciplinary methodologies. Furthermore, each wonders how to understand fully the role of masterly ‘practice’ in explaining the particularity of law.

Internationalism and Global Norms for Neuroethics

Today, we embrace a new challenge. We wade into the very seat of social, cultural, and physical understanding—the human brain—and we contemplate the ramifications of meddling with that most precious organ. Of course, meddling is a loaded word, but as the ethicists among you will attest, every word comes with its own baggage, with suppositions and preconceptions. And I think it is important—or at least highly relevant—to acknowledge how charged the public conversation could become if we were to pursue advances in neuroscience without considering the social, cultural, personal, and, indeed, the religious implications. We have had lessons in this before. In Canada, for example, our abilities to perform what were once considered miracles in reproductive health quickly outstripped any social or national consensus about whether those new skills were positive or even acceptable. In 1989, the University of British Columbia (UBC) medical geneticist Patricia Baird led a Royal Commission on New Reproductive Technologies that was charged with coming to grips with those issues. Today, Dr. Baird makes a couple of points that should, perhaps, seem obvious. First, it is dangerous for science to get ahead of society. It is incredibly difficult to create appropriate policies or to ensure scientific accountability if the public is not aware of the issues. People need to be engaged in a thoughtful and broadly based discussion about the advantages—and potential downsides—of scientific advances. The process of engaging the public can be complex and painfully slow—and the complexity increases, and the pace slows further—if government is asked to take the lead. For example, it takes an average of 7 years to implement the recommendations of a Royal Commission, and it is quite common for Commission reports to sit on the shelf for 15 to 20 years before government finds a way to render collected wisdom into workable policy. In the case of the Baird Commission, it was 2004, 15 years later, before the first resulting legislation passed through Parliament, and 2 more years before the government fi-

Interactional legal theory, the international rule of law and global constitutionalism

In this contribution to a forthcoming handbook on global constitutionalism, we outline our interactional approach to international law. We then connect that approach to ‘circular,’ practice-oriented and interpretative understandings of the rule of law. We go on to show how those conceptions of the rule of law can help to support a limited ‘constitutionalism’ that is still at a nascent stage in international society. We argue that a constitutionalism that is expressed primarily through the rule of law is more open to diversity than might at first appear to be the case; indeed, we suggest that it is likely to be more open than forms of political constitutionalism that focus on constituent power.