Interdisciplinary Perspectives on International Law and International Relations: The State of the Art

POLITICAL SCIENCE RESEARCH ON INTERNATIONAL LAW: THE STATE OF THE FIELD By Emilie M. Hafner-Burton, David G. Victor, and Yonatan Lupu* The discipline of political science has developed an active research program on the devel- opment, operation, spread, and impact of international legal norms, agreements, and institu- tions. Meanwhile, a growing number of public international lawyers have developed an interest in political science research and methods. 1 For more than two decades, scholars have been call- ing for international lawyers and political scientists to collaborate, and have suggested possible * Emilie M. Hafner-Burton and David G. Victor are Co-directors of the Laboratory on International Law and Regulation and Professors at the School of International Relations and Pacific Studies, University of California, San Diego. Yonatan Lupu is a lawyer and a Ph.D. student in the Department of Political Science at UCSD. We thank participants in the “mapping the field” project at the laboratory for detailed research on what political science has learned in various issue areas—including Karl Kruse, Mihaela Papa, Michael Plouffe, and Hallie Stohler. For com- ments on earlier drafts, we thank participants at the UCLA Law School faculty seminar and participants at a review meeting on December 10, 2010, at UCSD—including Kenneth Abbott, Tim Bu¨the, Peter Cowhey, Peter Goure- vitch, Stephan Haggard, Miles Kahler, Robert Keohane, Daniel Klerman, Barbara Koremenos, David Lake, Kat- erina Linos, Edward Mansfield, Lisa Martin, Helen Milner, Jon Pevehouse, Eric Posner, Tonya Putnam, Duncan Snidal, Alan Sykes, and Michael Tomz. Thanks also to Nicole Deitelhoff, Martha Finnemore, and Ann Towns for comments on our second draft, to Linda Wong for editorial assistance, and to Greg Shaffer and Tom Ginsburg for sharing an early draft of their related article, which appears in this same issue of the Journal. Some of these legal works that draw, in part, on political science methods and concepts look across many sub- stantive areas of law and focus on topics such as the role of law in managing economic relations, the effectiveness of law, legitimacy, and game-theoretic perspectives. See, e.g., Jeffrey L. Dunoff & Joel P. Trachtman, Economic Anal- ysis of International Law, 24 Y ALE J. I NT ’ L L. 1, 3 (1999); J ACK L. G OLDSMITH & E RIC A. P OSNER , T HE L IMITS OF I NTERNATIONAL L AW (2005); Jack Goldsmith, Sovereignty, International Relations Theory, and International Law, 52 S TAN . L. R EV . 959 (2000) (book review); Claire R. Kelly, Realist Theory and Real Constraints, 44 V A . J. I NT ’ L L. 545 (2004); Richard A. Falk, The Relevance of Political Context to the Nature and Functioning of Inter- national Law: An Intermediate View, in T HE R ELEVANCE OF I NTERNATIONAL L AW : E SSAYS IN H ONOR OF L EO G ROSS 133 (Karl W. Deutsch & Stanley Hoffmann eds., 1968); J UTTA B RUNN E ´ E & S TEPHEN J. T OOPE , L EGIT - IMACY AND L EGALITY IN I NTERNATIONAL L AW : A N I NTERACTIONAL A CCOUNT (2010); John K. Setear, An Iterative Perspective on Treaties: A Synthesis of International Relations Theory and International Law, 37 H ARV . I NT ’ L L.J. 139 (1996); Jens David Ohlin, Nash Equilibrium and International Law, 96 C ORNELL L. R EV . 869 (2011). Some legal studies, drawing on political science methods and concepts, examine the functioning of legal machinery. See, e.g., John K. Setear, Responses to Breach of a Treaty and Rationalist International Relations Theory: The Rules of Release and Remediation in the Law of Treaties and the Law of State Responsibility, 83 V A . L. R EV . 1 (1997). A large and growing body of legal literature, drawing from political science, focuses on particular issue areas, most notably human rights. See, e.g., Oona A. Hathaway, Do Human Rights Treaties Make a Difference? , 111 Y ALE L.J. 1935 (2002); Laurence R. Helfer, Overlegalizing Human Rights: International Relations Theory and the Commonwealth Caribbean Backlash Against Human Rights Regimes, 102 C OLUM . L. R EV . 1832 (2002). In addition, a large literature addresses the environment. See, e.g., Jutta Brunne´e & Stephen J. Toope, The Chang- ing Nile Basin Regime: Does Law Matter? , 43 H ARV . I NT ’ L L.J. 105 (2002); Eyal Benvenisti, Collective Action in the Utilization of Shared Freshwater: The Challenges of International Water Resources Law, 90 AJIL 384 (1996); Jonathan Baert Wiener, Global Environmental Regulation: Instrument Choice in Legal Context, 108 Y ALE L.J. 677 (1999). Trade law is one among various other areas drawing on political science scholarship. See, e.g., G. Richard Shell, Trade Legalism and International Relations Theory: An Analysis of the World Trade Organization, 44 D UKE L.J. This article is reproduced with permission from the January 2012 issue of the American Journal of International Law © 2012 American Society of International Law. All rights reserved