Symmetry and Selectivity: What Happens in International Law When the World Changes

I. Introduction This Article has a simple hypothesis: selectivity in international law increases as international relations become more symmetrical. Conversely, international law becomes more universal as asymmetry grows. This relationship holds true during the modern period. Its existence in turn supports the theoretical claim that the content of international law reflects the rational interests of those actors that make it. Consider first international relations. A simple narrative, seriously incomplete but good enough for present purposes, would go something like this: from the end of World War Il to the collapse of the Soviet empire, a bipolar superpower competition dominated international relations. There followed a period of US hegemony, but more recendy significant Chinese, European, Indian and Russian challenges to the United States have complicated that structure. The details do not matter, nor do the dates, the extent of US hegemony when it existed, the number of the new great powers, or the precise relative influence of each. What matters is that the basic structure of international relations underwent a transformation in the latter part of the twentieth century and now appears to have changed again. Next, consider competing trends in claims about international law, one toward universality and one toward selectivity. Universal international law applies equally to all states. Selective international law means that states vary in what rights and obligations they recognize as well as how to allow them to be enforced. In the extreme case of selectivity, the content of international law and its enforcement depends entirely on the identity of the state in question. If the recognition of international law reflects the rational interests of states, then international law should trend toward universality during times of hegemony and toward selectivity during periods of multipolar great power competition. Conversely, if international law does not conform to this pattern, then something other than the rational interest of states must explain its content. Much more is going on, of course, but this simple hypothesis suffices to ground an inquiry into the nature of international law as a creature of, and dependent on, international relations. Developments in international law since World War II are consistent with the claim that selectivity increases as international relations become more symmetrical. During the superpower rivalry, each side developed distinct rules for determining what counts as international law. Universalist international institutions existed but were largely sidelined. With the end of the Cold War came a flourishing of international institutions and more ambitious efforts to promote universal norms of international law. At some point during the last decade these trends have reversed, and epicenters of power have developed new mechanisms to select which international obligations they will recognize. In particular, the institutions of the European Community have aggressively pursued a dualist approach to international law that allows the European Court of Justice to pick and choose which international obligations it will honor. The simple hypothesis of this Article has broad implications. Over the last few decades international relations specialists have debated whether the material interests of states dictate the form and substance of the international order, or instead whether constructions of social order based on beliefs and perceptions shape the interests that produce international structure. For roughly the last twenty years international lawyers have joined in the debate. As wordsmiths and constructors of ideas, lawyers have some sympathy with the constructivist agenda.1 But at least a handful of legal academics discount the significance of international law as an agent for transforming state preferences and instead trace the evolution and transformation of international law to changes in tangible state interests, most importantly, security and material well being. …