Renovating the procedural architecture of international law

Abstract

Contemporary global governance is marked by its thoroughly legal character. Even as participants grapple with the distinctive challenges presented by globalization, including the diversification of stakeholders, international law continues to provide a critical touchstone orienting social action. While many specific provisions of international law remain contested, the basic procedural architecture underpinning the panoply of functional bodies of international law rarely attracts attention. This architecture dates largely from the nineteenth and early twentieth centuries, and is increasingly inadequate in a culturally heterogeneous networked world. The fundamental challenge is to ensure the continuing legitimacy of international law as a technique for reaching and implementing governance agreements. In the present context, this entails confronting potential challenges from civil society and corporate actors, as well as from rising powers with distinctive legal traditions. This article provides a brief overview of several critical procedural pillars of international aw. It makes the case that sustained attention to updating these rules and practices could improve global governance across a wide variety of issue-areas. The paper concludes by identifying policy options for updating and for enhancing the legitimacy of the procedural architecture of international law.

Keywords:

• international law
• constructivism
• Canadian foreign policy

Acknowledgements

The author thanks the editorial team and the anonymous reviewers for their helpful comments.

Notes

1. Practices, here, refers to the notion of practice developed by Adler, E. and Pouliot, V. 2011. International Practices. International Theory, 3(1), 1-36. The notion of rule-sets establishing conditions of rule was famously articulated by Onuf, N. G., 1989. World of Our Making: Rules and Rule in International Relations. Columbia, S.C.: University of South Carolina Press.

2. The legalization of international relations in general, especially over the last century, has been noted by: Reus-Smit, C., 1999. The Moral Purpose of the State: Culture, Social Identity, and Institutional Rationality in International Relations. Princeton, N.J.: Princeton University Press, Bukovansky, M., 2002. Legitimacy and Power Politics: The American and French Revolutions in International Political Culture. Princeton, N.J.: Princeton University Press. Legalization was also the subject of a special issue of International Organization. See Abbott, K. W., et al. 2000. The Concept of Legalization. International Organization, 54(3), 401-419.

3. On forms of soft law, see Abbott, K. W. and Snidal, D. Ibid.Hard and Soft Law in International Governance. 421-456. The view of international law I have in mind here owes a great deal to Brunnée, J. and Toope, S. J., 2010. Legitimacy and Legality in International Law: An Interactional Account. Cambridge, U.K.: Cambridge University Press.

4. For a rare case in which a non-Western state embraced European rule-making procedures, see the discussion of Japan in Suzuki, S., 2009. Civilization and Empire: China and Japan's Encounter with European International Society. London, U.K.: Routledge.

5. This phrase belongs to John Ruggie. Ruggie, J. G., 1998. What Makes the World Hang Together? Neo-utilitarianism and the Social Constructivist Challenge. Constructing the World Polity: Essays on International Institutionalization. New York, N.Y.: Routledge.

6. On the different implications of coordination and cooperation games for international cooperation, see Martin, L.L. and Simmons, B.A. 1998. Theories and Empirical Studies of International Institutions. International Organization, 52(4), 729-757.

7. Several papers in this volume also demonstrate the involvement of non-state actors in foreign policy issues. See Gordon, D. 2013. Between Local Innovation and Global Impact: Cities, Networks and the Governance of Climate Change. Canadian Foreign Policy Journal, 19(3); Chaloux, A. 2013. Water Resource Management and North American Green Paradiplomacy. Canadian Foreign Policy Journal 19(3); and Grant, A. 2013. Consensus Dynamics and Global Governance Frameworks: Insights from the Kimberley Process on Conflict Diamonds. Canadian Foreign Policy Journal 19(3).

8. Locke, J., 1988. Two Treatises of Government. Cambridge: Cambridge University Press. See, especially, Ch. VII of the Second Treatise, S.90, p. 326. According to Locke, the point of civil society is avoiding situations in which every man is judge in his own case. This is accomplished by erecting an authority to which all appeal; such an authority is the sign that people are no longer in the State of Nature. By this standard, the argument could be made that the procedural rules of international law collectively constitute such an authority and that the international system is, in Lockean terms, no longer in the State of Nature.

9. On the emergence of multilateral treaty making as a social practice in international politics, and on the growth in number of multilateral treaties over time, see Denemark, R.A. and Hoffmann, M.J. 2008. Just Scraps of Paper? The Dynamics of Multilateral Treaty-Making. Cooperation and Conflict: Journal of the Nordic International Studies Association, 43(2), 185-219.

10. Articles 57 and 58 deal briefly with responsibility on the part of non-state actors, but not in a systematic or comprehensive manner.

11. There are also internal tensions and important gaps within the procedural architecture of the international legal system that could compromise the effectiveness of this system over time. However, internal tensions and gaps within systems of rules are not unique to the international legal system, and major rule systems often display considerable robustness in the face of such concerns. Accordingly, these internal tensions in the procedural architecture of international law are an important area for future research, but are outside the scope of this paper. Thanks to an anonymous reviewer for suggesting this point.

12. The argument here is essentially that what John Ruggie referred to as “thick multilateralism” has been diffused widely throughout the international system. See Ruggie, J. G. 1992. Multilateralism: The Anatomy of an Institution. International Organization, 46(3), 561-598.

13. Thanks to James Manicom for suggesting this example.

14. The epistemic communities literature is helpful on this point. See, for example, Haas, P. M. 1992. Introduction: Epistemic Communities and International Policy Coordination. International Organization, 46(1), 1-35.

15. On this point, see the paper by Felix Grenier in this volume. Grenier, F. 2013. The Global Educational Challenge: How Canada Can Contribute to Global Developmental Solutions through Innovation in Higher Education. Canadian Foreign Policy Journal, 19(3).