Economic Foundations of International Law
Eric A. Posner
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The ever-increasing exchange of goods and ideas among nations, as well as cross-border pollution, global warming, and international crime, pose urgent questions for international law. Here, two respected scholars provide an intellectual framework for assessing these pressing legal problems from a rational choice perspective.
The approach assumes that states are rational, forward-looking agents which use international law to address the actions of other states that may have consequences for their own citizens, and to obtain the benefits of international cooperation. It further assumes that in the absence of a central enforcement agency―that is, a world government―international law must be self-enforcing. States must believe that if they violate international agreements, other states will retaliate.
Consequently, Eric A. Posner and Alan O. Sykes devote considerable attention to the challenges of enforcing international law, which begin with the difficulties of determining what it is. In the absence of an international constitution, the sources for international law are vague. Lawyers must rely on statements contained in all manner of official documents and on simple observation of states’ behavior. This looseness leads international institutions such as the United Nations to deliver conflicting interpretations of the law’s most basic principles. The authors describe the conditions under which international law succeeds or fails, across a wide range of issues, including war crimes, human rights, international criminal law, principles of state responsibility, law of the sea, international trade regulation, and international investment law.
noncompliance is always an option. Delegation of executive power to an international institution has been even less common; indeed, it is hard to think of a pure example. States have delegated certain administrative tasks to international agencies. Again, the European Union is the strongest example. The Commission has certain powers that we think of as executive. It can investigate allegations of misconduct and impose fines and other penalties. But it cannot directly enforce its will; for that,
international adjudication systems. It is a successor to the GATT system, International Institutions 109 which was essentially a structured system of arbitration. We will discuss the WTO in Chapter 18. Other Tribunals Law of the Sea Tribunal In 1994 the United Nations Convention on the Law of the Sea went into force. The dispute resolution provisions of the Law of the Sea convention are complex. States are permitted to choose among the newly established International Tribunal for the Law of
prisoner’s dilemma, it is vital to the preservation of cooperation over 128 Economic Foundations of International Law time that nations make a credible threat to punish deviation from the rules by other nations. Often, the most plausible threat is reciprocal deviation, and when cooperation fails, threats of reciprocal deviation must sometimes be carried out to maintain credibility. This observation suggests an important reason for noncompliance with international law—to retaliate for
therefore less was at stake. People who violated foreign law could avoid legal sanctions by staying in their home state, not entering the foreign state, and 150 Economic Foundations of International Law not holding assets in that foreign state. Likewise, government officials who traveled to other states often received immunity under international law. But in the modern global economy, things have changed. Multinational corporations are vulnerable to assertions of extraterritorial jurisdiction
arbitration to head off wars. But the rule was only hortatory. After World War I This relaxed attitude toward war ended with World War I, which made clear that technology had advanced to the point that mass slaughter of soldiers and civilians alike would replace the less violent wars of the nineteenth century, which killed fewer people and mainly professional soldiers. The Versailles Treaty set up a new League of Nations, the predecessor to today’s United Nations, and the Permanent Court of