Strategic globalization: International law as an extension of domestic political conflict

INTRODUCTION International law binds nation-states, but it is usually politicians who make the crucial decision whether to adopt or enforce international legal commitments. Thus, contrary to conventional wisdom, the logic and efficacy of international law should not be judged exclusively by the elevated yardstick of global cooperation or objective state interest.1 Rather, support and opposition to international law should also be judged by another compelling yardstick: the desire of politicians to retain power and advance their partisan policy preferences. At some level, both international agreements and customary international law may require politicians to make concessions that restructure the domestic institutional or policy landscape. Sometimes, but not always, such concessions may alter the political leverage of one domestic group in favor of another. Since partisan prospects for staying in power and advancing policy preferences may be affected by international legal commitments, we may anticipate that support for international law will vary across both parties and electoral cycles. Unfortunately, we still know very little about when or how domestic partisan groups make the adoption and enforcement of international law more likely. This problem is especially pronounced in our analysis of democratic regimes. Though there is now a growing academic consensus that democratic regimes are more likely than their nondemocratic counterparts to engage in international cooperation,2 there is little analysis of whether the propensity toward embracing international law among such democracies varies across right-leaning and left-leaning governments. To be sure, there is a rich social science literature that explores how interest groups influence international policy by lobbying political officials, but this literature does not usually analyze how this interest group dynamic interacts with domestic partisan politics.3 Moreover, much of the debate usually focuses on the preferences of domestic interest groups for specific policy outcomes rather than efforts to promote a political party's ideological or electoral fortunes. Even when the role of parties in framing international legal issues is acknowledged, it is usually treated as an exception to the conventional wisdom that politics "stop at the water's edge."4 This Article advances a different perspective: that political parties-or partisan elites-will often embrace international legal commitments as a vehicle to overcome domestic obstacles to their policy and electoral objectives. In this picture, an incumbent regime may strategically use international law to extend the scope of partisan conflict across borders in order to isolate the domestic political opposition and increase the influence of foreign groups or states that may be more sympathetic to the regime's political objectives. Alternatively, such a regime may support international legal commitments that it knows are likely to provoke intracoalitional conflict within the political opposition. But just as a governing party may use international law to advance its domestic political objectives, the political opposition may exploit domestic institutions to thwart international legal commitments that strengthen the ruling regime and weaken its own position. Thus, rather than serve as a structure of mutually beneficial cooperation, international law may often devolve into a zero-sum dynamic that simply reflects an extension of domestic political conflict by other means. This perspective assumes that political parties build reputations for addressing certain issues better than others and may seek to use international legal commitments to bolster those issues against the vagaries of domestic politics. In other words, partisan officials may attempt to use international commitments to narrow the scope of future policy to their advantage and thus weaken the ability of a future hostile regime to pursue its preferred policy or electoral objectives. …