Archive for Discussion Papers and Commentary

Discussion Paper: “The Concept of International Law” by John Linarelli

Posted in Discussion Papers and Commentary, General Thoughts and Comments with tags , , , on March 24, 2009 by jeremyleong

We have posted a new discussion paper on international law and moral philosophy: “The Concept of International Law” by John Linarelli. This very thought provoking piece will be presented an ASIL International Legal Theory Interest Group panel at the Annual ASIL Meeting later this week. Linarelli offers a fresh take on what the enterprise of analytical jurisprudence can do for international law. He examines connected concepts of “normativity”, “validity” and “justice” and puts forth, for discussion, a contractualist account of global justice.


The paper can be found at:- As always, comments are welcome.


Discussion Paper: “Regime Proliferation and the Tragedy of the Global Institutional Commons” by Daniel W. Drezner

Posted in Discussion Papers and Commentary, General Thoughts and Comments, Journal Watch with tags , , , on January 16, 2009 by jeremyleong

We have posted our first discussion paper of 2009. Prof. Daniel Drezner has kindly contributed “Regime Proliferation and the Tragedy of the Global Institutional Commons”. This paper examines the aftermath of the 2001 Doha Declaration on intellectual property rights and public health and recent efforts to create a weapons of mass destruction interdiction regime. It argues that “(a)fter a certain point, proliferation shifts global governance structures from rule-based outcomes to power-based outcomes – because institutional proliferation erodes the causal mechanisms through which regimes ostensibly strengthen international cooperation.”


This discussion also calls to mind a couple of papers which appeared in a symposium organized by the Cornell International Law Journal. In “Global Institutional Reform and Global Social Movements: From False Promise to Realistic Hope”, Richard W. Miller argues that the search for “institutional fixes” distracts from more productive discourse about improving global governance by thinking about global social movements. He describes existing social movements as “an international bunch of people” who seek to relieve the inequities and burdens of globalization, etc etc. They regard each other as allies, wish each other’s causes well, share information sources etc etc. Their purpose: presumably to change mindsets. Thus, in contrast to Drezner’s rationalist approach, Miller’s thesis appears rooted in constructivism. See (2006) 39 Cornell International Law Journal 501.


Robert Hockett in “Institutional Fixes versus Fixed Institutions” (2006) 39 Cornell International Law Journal 537 offers a bridge between the rationalist and the constructivist. He notes, “(a)n institution is often a kind of transition belt or drive shaft for the effectuation of social movements’ aims themselves; and it is, even more than that, structurally speaking a kind of blueprint for what the movement actually envisages as endpoint if that movement has fully theorized and specified what its ultimate aims are. We might liken the institution to a clutch or a drive shaft, and we might then liken the movement to an engine. Or we might say that the institution is the material embodiment of what the movement articulates by way of a blueprint for a better world.”


We hope to continue our discussion on regime proliferation and on the fragmentation of international law in the very near future.


Meanwhile, Dan Drezner’s paper may be found at

Journal Watch (AJIL April 2008/EJIL 2008)

Posted in Journal Watch with tags , , , , , , on October 9, 2008 by jeremyleong

Journal Watch is the section in FILA…Live which keeps an eye on the various major international law journals and yearbooks and looks out for articles which reflect an interdisciplinary approach to international law. Where possible, convenient and legal, we shall also provide the relevant links to access them. We shall also be adding book reviews of forthcoming or recently launched books to the discussion paper series. So, please look out for that. If we have missed out on any articles or books which are noteworthy, please do contact us. Further, if you wish to submit a substantive commentary on any particular book and/or article, please also contact us. With that bit of business resolved, we move on to the fun stuff.


American Journal of International Law, April 2008, Vol. 102(2)


The two main articles in the latest edition of the AJIL have pronounced constructivist leanings:- Eyal Benvenisti, in “Reclaiming Democracy: the Strategic Uses of Foreign and International Law by National Courts” and the Fletcher School’s very own Ian Johnstone, in “Legislation and Adjudication in the UN Security Council: Bringing Down the Deliberative Deficit”. In short, Benvenisti claims that national courts are utilizing the common languages of international and comparative constitutional law to stand up against interest groups and foreign governments. In the other article, Johnstone addresses a “deliberative deficit in the UN Security Council” which causes a de-legitimizing effect on UN Security Council resolutions. He suggests some reforms which may improve the quality of deliberations and hence enhance the legitimacy of the same resolutions.


European Journal of International Law, September 2008, Vol. 19(4) (accessible at


This edition of EJIL somewhat continues where AJIL left off with a selection of articles on constructivism as well as international constitutionalism. Ryan Goodman and Derek Jinks in “Incomplete Internalization and Compliance with Human Right Law” emphasize the point from their earlier work i.e. that acculturation is a distinct social process by which international law influences states and that human rights law might harness this mechanism in designing effective global regimes. The abstract provides:-


“In this article, we consider an important objection to our work. The concern is whether acculturation institutionalizes non-compliance. The growing body of empirical evidence for global-level acculturation, in part, documents persistent forms of decoupling – suggesting that formal commitments to global culture often fail to change concrete practices of local actors. In the human rights context, this is particularly troubling, given the prevalence of seemingly disingenuous acceptance of human rights instruments by states with poor human rights records. Many critics suggest… that (human rights law) is under-enforced – not that it is insufficiently acculturative. In reply, we argue that acculturation generally does not impede progress toward deeper reform and, indeed, will often facilitate it.”


Further, Stephen Gardbaum in “Human Rights as International Constitutional Rights” and Ernst-Ulrich Petersmann in “Human Rights, International Economic Law and ‘Constitutional Justice’” re-visit domestic constitutional law’s relationship with international law. Without saying much about either article, it is notable that this relationship also continues the “domestic law analogy” found in some international law analysis. In particular, law and economics analysis of domestic law has been analogously applied to aspects of international law in a plausible manner. See generally, Joel Trachtman, The Economic Structure of International Law (book review forthcoming).