Empirical approaches to international law.

Position:International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law - Discussion
 
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This panel was convened at 9 a.m. on Thursday, March 25, 2010, by its moderator, Tonya Putnam of Columbia University, who introduced the panelists: Elizabeth Andersen of the American Society of International Law; Elena Baylis of the University of Pittsburgh School of Law; Susan Franck of Washington and Lee University School of Law; Tom Ginsburg of the University of Chicago Law School; and Janet: Levit of the University of Tulsa College of Law. *

* Elizabeth Andersen, Tom Ginsburg, and Janet Levit did not submit remarks for the Proceedings.

THE TRANSFORMATIVE POTENTIAL OF RIGOROUS EMPIRICAL RESEARCH

The legitimacy of using empirical research methods to study international law is at last well established. We have on this panel a group of people who use a variety of qualitative and quantitative methods to investigate aspects of international law as diverse as international trade, human rights, and foreign constitutions. This year, ASIL awarded a Certificate of Merit to a book addressing a quantitative study of human rights treaties. (1) With the increasing maturity of empirical approaches to international law, I would like to raise two subjects that are now ripe for discussion: the transformative potential of empirical research, and the need to ensure that our research methods are rigorous and effective.

Of course, we all realize that empirical research can be used as a way to test preexisting theoretical constructs. By gathering data, we can produce evidence concerning such familiar questions as whether international law has any compliance pull with nation-states. But I believe that empirical research can do more than simply provide proof for our preconceived theories. Empirical research can have truly transformative effects by enabling us to develop different kinds of analytic frameworks for understanding international law and to create tools that can be used in producing and engaging with international law in practice.

When thinking about international law problems, we tend to ask the questions we can answer. By radically expanding the kinds of data we can gather, empirical methods also transform the questions we can ask and the theories we can build. Take, for example, the question of the role of international law in post-conflict justice for atrocities like genocide, war crimes, and crimes against humanity. To be sure, empirical research can provide useful data if we frame post-conflict justice as a simple binary inquiry: are wrongdoers held accountable for atrocities as defined by international law, or is there impunity for these crimes? But empirical methods also make it possible for us to ask and answer more complex questions: under what circumstances do post-conflict states prosecute offenders, convene truth commissions, or take other steps toward accountability; which factors influence national courts and other national entities to adopt international norms in doing so; which features of international interventions tend to either support or impede accountability efforts; and so on. We can consider the "how" and "why" questions which are particularly important for international law, since its creation and enforcement are relatively decentralized and occur in a wide variety of cultural contexts. We can address different kinds of inputs, like people and cultures--elements beyond process, the substantive content of laws, and other traditional concepts. We can even abandon a compliance-centered framework for assessing international law's role, and simply study what encourages and enables individuals, institutions, and states to act in the ways that we have enshrined as international law norms--without concern as to whether that behavior is produced with any knowledge of international law or due to its compulsion.

There are many examples of this sort of framework-exploding research. One is Laura Dickinson's work on military lawyers, which was published in the most recent issue of the American Journal of International Law. Based on her interviews with JAG attorneys, Professor Dickinson examined their role in promoting U.S. military compliance with the Geneva Conventions and the influence of U.S. military organizational culture as a factor shaping their actions. Rather than simply asking whether the United States has complied with the Geneva Conventions, the information gleaned from these interviews enabled Professor Dickinson to consider when, why, and how the military had followed these norms. (2)

Another example is Galit Sarfaty's study of human rights norms in the World Bank. Professor Sarfaty conducted an ethnographic study of the World Bank to determine why...

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