Behaviorial international law.

• Author: Broude, Tomer
• Position: Introduction: A New and Necessary Agenda through III. Objections to Behavioral International Law and Methodological Responses A. The Individual Focus of Behavioral Theory 2. Decisionmaking Collectives in International Law, p. 1099-1129

Economic analysis and rational choice have made significant inroads into the study of international law and institutions in the last decade, relying upon standard assumptions of perfect rationality of states and decisionmakers. This approach is inadequate, both empirically and in its tendency toward outdated formulations of political theory. This Article presents an alternative behavioral approach that provides new hypotheses addressing problems in international law while introducing empirically grounded concepts of real, observed rationality. First, I address methodological objections to behavioral analysis of international law: the focus of behavioral research on the individual, the empirical foundations of behavioral economics, and behavioral analysis's relative lack of parsimony. I then offer indicative behavioral research frameworks for three contemporary puzzles in international law: (a) the relative inefficiency of the development of international law, (b) dissent in international tribunals, and (c) target selection in armed conflict. Behavioral research in international law can serve as a viable, enriching alternative and complement to conventional economic analysis, so long as it is pursued with academic and empirical rigor as well as intellectual humility.

INTRODUCTION: A NEW AND NECESSARY AGENDA I. REVISITING THE LIMITS OF RATIONAL CHOICE AND International Law II. WHY BEHAVIORAL INTERNATIONAL LAW? III. OBJECTIONS TO BEHAVIORAL INTERNATIONAL LAW AND METHODOLOGICAL RESPONSES A. The Individual Focus of Behavioral Theory 1. The State as a Unitary Actor? 2. Decisionmaking Collectives in International Law 3. The Individual as a Subject and Decisionmaker in International Law B. The Empirical Foundations of Behavioral Theory 1. Theoretical Applications 2. Experimental Research 3. Field Studies C. The Parsimony of Traditional Concepts of State Rationality IV. SOME INDICATIVE APPLICATIONS OF BEHAVIORAL RESEARCH TO INTERNATIONAL LEGAL ISSUES A. The State Level: The Efficiency of International Law-Making and the Status Quo Bias B. Small Decisionmaking Groups: Judicial Design and Conformity Effects in International Tribunals C. The Individual: Target Selection, Framing Effects and Preference Reversals in International Humanitarian Law CONCLUSION INTRODUCTION: A NEW AND NECESSARY AGENDA

How can insights from cognitive psychology and behavioral economics be meaningfully applied to international legal issues, in all their normative and prescriptive dimensions? To understand the importance and potential impact of this question, consider the following three contemporary puzzles, each relating to different dimensions of international law.

First, when--and why--does international law fail to develop, even when it is most needed? For four decades, global warming has been proclaimed the most severe crisis humanity has ever faced that can only be tackled through concerted international agreement and action. Nevertheless, concrete and effective international norms, whether customary or treaty-based, fail to materialize. (1) Similarly, the rise of non-state actors and transnational terrorism as well as new technologies of warfare and intelligence have significantly altered the battlefield at home and abroad, dramatically so since 9/11. Yet the applicable international law remains a series of treaties (and their acceptance as customary law) whose roots date back to the nineteenth century and whose latest editions are from the 1970s. (2) This is not to say that international law in these fields has not adapted or developed at all, but why has it been so sluggish in these areas of paramount concern when it has demonstrated the capacity to develop quite meteorically with respect to other issues? (3)

Second, how should international courts be structured? In the last two decades, there has been a momentous increase in the number and influence of international courts and tribunals dealing with issues as varied as international crimes and international trade. The structure of these courts varies, as do their respective records of quality and effectiveness. (4) Procedurally, some international courts allow dissenting opinions of judges, while others require a high degree of consensus among judicial decisionmakers coming from very different backgrounds. How have these differences affected judicial outcomes? Do collegial international courts stifle the development of international law? Or do fragmented benches hinder it? (5)

Third, how should military attacks be conducted? Under international humanitarian law, military commanders contemplating an armed attack must follow a principle of proportionality, comparing the potential damage to non-combatants with the military advantage gained from the attack. What does this mean when viewed ex ante? How do reasonable, good faith military commanders understand and execute this norm in practice? And conversely, how should this practice affect the norm? (6)

Responses to all three questions, however different they may be from each other, must rely on certain understandings, fundamentally descriptive but often normative, of the ways in which states and other actors interacting with international law (e.g., diplomats, judicial decisionmakers in international tribunals, and military commanders) are expected to behave. Over the last decade, many compelling analyses of similar questions in international law have built on particular assumptions of what may be termed "perfect" rationality: the growing area of economic analysis of international law. (7) In many other areas of law, however, the value of applying rational choice theory to legal questions has been questioned and contested by empirically grounded streams of behavioral economics and cognitive psychology that focus on systematic divergences from perfect rationality. (8) Should these behavioral insights not now be avidly applied to international law?

Employed properly, a behavioral approach can contribute to international legal research by raising interesting hypotheses relating to problems in international law, and by providing frameworks for experimental and empirical testing of these hypotheses, with both explanatory and normative implications. A behavioral approach could be seen as either augmenting or in some cases supplanting the now common (one is almost tempted to say "traditional") economic analyses of international law. Indeed, in some cases, behavioral research can be useful without any recourse to the framework of economic analysis. In any event, behavioral analysis must be added to the international legal research toolbox of alternative research methodologies, each of which should be employed where it is illuminating and can be pursued with intellectual honesty.

In making the case for behavioral analysis of international law, the Article proceeds as follows. In Part I, I discuss some weaknesses of rational choice and economic analysis of international law, primarily the limits of assumptions of perfect rationality that are not backed by empirical substantiation. In Part II, I briefly explain the corrective impact of cognitive psychology on the economic analysis of law in general: its understanding that human rationality is bounded, characterized by systematic failures, shortcuts, and susceptibility to seemingly irrational traits such as fairness, but also its descriptive and empirical strengths. This is not to say that behavioral analysis is contrary to standard rational choice but rather a complement and supplement. Part II also suggests what value cognitive psychology might contribute to international legal research, highlighting how few studies currently exist in this direction. In Part III, I discuss and provide responses to what appear to be the central methodological objections to the behavioral approach to international law: (i) the focus of behavioral analysis on the individual, (ii) the empirical foundations of behavioral economics, and (iii) its relative lack of parsimony. Part IV offers indicative behavioral research frameworks for three issues in international law: (i) the development of international treaty law, (ii) the collegiality and dissent in international tribunals, and (iii) the target selection in armed conflict. Finally, I recapitulate and offer some concluding remarks on the potential role and viability of a behavioral approach to international law.

1. REVISITING THE LIMITS OF RATIONAL CHOICE AND INTERNATIONAL LAW

   Are states and other international legal actors "rational" when they interact with each other in the processes of making international law, abiding by it, violating it, and enforcing it? A burgeoning, essential, and predominantly American (9) literature that uses rational choice tools in the analysis of international law assumes that they are. (10) The "law and economics" (L&E) of international law has in the last decade made significant inroads into the study of international law. It principally rests upon assumptions of perfect rationality, whether of states or of decisionmakers, that are determinative of state conduct in international law.

   To be sure, social scientists engaged in the study of international relations (IR) have used the same assumptions of rationality and employed similar methods for more than half a century. (11) For most of this time, mainstream international legal scholarship has occupied the separate methodological universes of doctrinaire positivism--"natural" law idealization or intuitive "policy-oriented" prescriptiveness. (12) For a variety of reasons, (13) international legal scholars turned their attention to the implications of IR theory for international law only after the end of the Cold War, (14) to the point that today rational choice and economic analyses of international law are very much in vogue. (15) Contemporary international lawyers who have not yet mastered the differences between the Prisoners' Dilemma and Chicken (16) or who lack a basic...