¹ See Anne-Marie Slaughter, Andrew S. Tulumello & Stepan Wood, International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship, 92 AJIL 367 (1998).

² See Kenneth W. Abbott, Elements of a Joint Discipline, 86 ASIL Proc. 167 (1992) (discussing joint discipline).

³ Steven R. Ratner, The Schizophrenias of International Criminal Law, 33 Tex. Int’l L.J. 237 (1998).

⁴ See Steven R. Ratner & Anne-Marie Slaughter, Appraising the Methods of International Law: A Prospectus for Readers, 93 AJIL 291, 291–92 (1999).

⁵ Bruno Simma & Andreas L. Paulus, The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View, 93 AJIL 302 (1999).

⁶ This is also a virtue of the New Haven approach, which shares IR’s roots in political science. See Siegfried Wiessner & Andrew R. Willard, Policy-Oriented Jurisprudence and Human Rights Abuses in Internal Conflict: Toward a World Public Order of Human Dignity, 93 AJIL 316 (1999). The IR approaches described here differ from the New Haven School in two major ways: (1) they focus on relatively specific sets of variables, rather than the entire global social process, creating greater theoretical parsimony; and (2) they at least attempt to separate analysis from normative or policy goals. On the latter point, both Simma/Paulus and Dunoff/Trachtman are correct in arguing that the New Haven School has tended to “ideologize” international law, and has too easily assumed a common global set of values. See Simma & Paulus, supra note 5, text at note 21; Jeffrey L. Dunoff & Joel P. Trachtman, The Law and Economics of Humanitarian Law Violations in Internal Conflict, 93 AJIL 394, 408 (1999). Wiessner and Willard in this symposium exhibit these characteristics far less than some proponents of the New Haven approach.

⁷ Legal methodologies also mask implicit preferences. Even Simma and Paulus, who emphasize rigorous positivism, search for doctrinal “strategies” to overcome normatively troublesome gaps in legal text and practice. Simma & Paulus, supra note 5, at 311.

⁸ Cf Abbott, supra note 2, at 168 (suggesting similar intellectual tasks).

⁹ The political perspective is shared by sophisticated legal scholars. See, e.g., Louis Henkin, International Law: Politics, Values and Functions, 216 Recueil des Cours 22 (1989 IV) (“First, law is politics.”).

¹⁰ See, e.g., Ronald B. Mitchell, Intentional Oil Pollution at Sea (1994) (examining how rules on vessel pollution influenced compliance).

¹¹ See, e.g., Beth A. Simmons, Money and the Law: Commitment and Compliance in International Monetary Affairs, paper presented at American Political Science Association (Sept. 4–7, 1998) (testing competing explanations for compliance with IMF Articles of Agreement) (on file with author).

¹² Dunoff & Trachtman, supra note 6.

¹³ On this point the International Criminal Tribunal for the former Yugoslavia stated: “Indeed, elementary considerations of humanity and common sense make it preposterous that the use by States of weapons prohibited in armed conflicts between themselves be allowed when States try to put down rebellion by their own nationals on their own territory.” Prosecutor v. Tadić, No. IT-91-1-AR72, Appeal on Jurisdiction, para. 119 (Oct. 2, 1995), 35 ILM 32 (1996), 105 ILR 419, quoted more fully in Simma & Paulus, supra note 5, at note 1.

¹⁴ See Mary Ellen O’Connell, New International Legal Process, 93 AJIL 334 (1999).

¹⁵ Institutional design is at the heart of current interdisciplinary collaboration. See, e.g., Slaughter, Tulumello & Wood, supra note 1, at 385–87; Abram Chayes & Antonia Handler Chayes, The New Sovereignty (1995); James Cameron, Jacob Werksman & Peter Roderick, Improving Compliance with International Environmental Law (1996).

¹⁶ Ratner & Slaughter, supra note 4, at 292.

¹⁷ Dunoff and Trachtman describe institutional design as perhaps the lawyer’s “most important creative role.” Dunoff & Trachtman, supra note 6, text at note 1.

¹⁸ Martti Koskenniemi, Letter to the Editors of the Symposium, 93 AJIL 351, 352 (1999).

¹⁹ Other theoretical approaches not included here are also useful. See, e.g., Philip M. Nichols, Forgotten Linkages—Historical Institutionalism and Sociological Institutionalism and Analysis of the World Trade Organization, 19 U. Pa. J. Int’l Econ. L. 461 (1998).

²⁰ See Oran R. Young, Remarks, 86 ASIL Proc. 172, 173 (1992). See also Robert O. Keohane, International Relations and International Law: Two Optics, 38 Harv. Int’l L.J. 487 (1997); Anne-Marie Slaughter, International Law and International Relations Theory: A Dual Agenda, 87 AJIL 205 (1993).

²¹ See John J. Mearsheimer, The False Promise of International Institutions, Int’l Security, Winter 1994–95, at 5; Promises, Promises: Can Institutions Deliver? Int’l Security, Summer 1995, at 39 (responses to Mearsheimer).

²² Cf. Anne-Marie [Slaughter] Burley & Walter Mattli, Europe Before the Court: A Political Theory of Legal Integration, 47 Int’l Org. 41 (1993) (“the logic of law” operates to advance legal integration).

²³ For recent efforts to analyze international legalization, see Kenneth W. Abbott, Robert O. Keohane, Andrew Moravcsik, Anne-Marie Slaughter & Duncan Snidal, Legalization and World Politics: An Introduction; Abbott & Snidal, Toward a Theory of International Legalization; Slaughter, Keohane & Moravcsik, Legalized Dispute Resolution, International and Transnational; and other papers to be included in a volume edited by Keohane, Slaughter, Judith Goldstein and Miles Kahler (on file with author).

²⁴ Realist theory in IR should not be confused with Legal Realism, discussed briefly in O’Connell, supra note 14. Although the two approaches share a belief that formal legal rules have little independent effect on . behavior, their assumptions and areas of application are otherwise quite different.

²⁶ See Richard H. Steinberg, Trade-Environment Negotiations in the EU, NAFTA and WTO: Regional Trajectories of Rule Development, 91 AJIL 231 (1997) (analyzing influence of powerful states).

²⁶ See Jack L. Goldsmith & Eric A. Posner, A Theory of Customary International Law, 66 U. Chi. L. Rev. (forthcoming 1999) (on file with author) (applying realist approach to customary law). Simma & Paulus, supra note 5, at note 61 and corresponding text, argue that such efforts mock the idea of customary law.

²⁷ See George W. Downs, David M. Rocke & Peter N. Barsoom, Is the Good News about Compliance Good News about Cooperation? 50 Int’l Org. 380 (1996).

²⁸ See, e.g., Cooperation Under Anarchy (Kenneth A. Oye ed., 1986).

²⁹ Dunoff & Trachtman, supra note 6, at 397, argue that economic theory requires methodological individualism. Yet many forms of economic analysis—for example, analysis of international transaction costs, strategic interactions and market failures—can be fruitfully applied to interactions among states, as many of their examples confirm. See Kenneth W. Abbott, Modern International Relations Theory: A Prospectus for International Lawyers, 14 Yale J. Int’l L. 335 (1989) (applying economic concepts to interactions among states). One might also question Dunoff and Trachtman’s conclusion, based on methodological individualism, that economic analysis requires normative support for broadly representative international institutions. At least some advocates of public choice theory argue just the opposite. Seejohn O. McGinnis, The Decline of the Western Nation State and the Rise of the Regime of International Federalism, 18 Cardozo L. Rev. 903 (1996).

³⁰ See Dunoff & Trachtman, supra note 6.

³¹ See Theories of International Regimes (Andreas Hasenclever, Peter Mayer & Volker Rittberger eds., 1997); International Regimes (Stephen D. Krasner ed., 1983).

³² See, e.g., Ideas and Foreign Policy (Judith Goldstein & Robert O. Keohane eds., 1993).

³³ See, e.g., Kenneth W. Abbott & Duncan Snidal, Why States Act Through Formal International Organizations, 42 J. Conflict Resol. 3 (1998) (discussing functions of formal organizations).

³⁴ See, e.g., Judith Goldstein, International Law and Domestic Institutions: Reconciling North American “Unfair” Trade Laws, 50 Int’l Org. 4 (1996); Robert Putnam, Diplomacy and Domestic Politics: The Logic of “Two-Level Games,” 42 Int’l Org. 427 (1988).

³⁵ Dunoff & Trachtman, supra note 6, at 407, express a well-founded concern that institutionalists too often assume the superiority of formal institutions over more decentralized “market” interactions among states. In analyzing existing institutions, see Slaughter, Tulumello & Wood, supra note 1, at 375–77, one may be able to assume that states and other actors would only have created these bodies if they regarded the benefits as outweighing the costs (the principal exception would be where more powerful actors coerced weaker ones to consent). Prescriptively, however, one should compare a proposed institution to its alternatives, including the absence of institutionalization.

³⁶ One approach assumes that powerful states support the initial creation of institutions, but argues that the beneficial effects of institutions and the difficulty of replacing them allow them to maintain influence thereafter. See Robert O. Keohane, After Hegemony (1984). Another approach argues that the “softness” of many international agreements reflects a balance between institutional benefits and the difficulty of creating them. See Abbott & Snidal, supra note 23.

³⁷ See Dunoff & Trachtman, supra note 6, at text following note 14.

³⁸ See O’Connell, supra note 14.

³⁹ See Andrew Moravcsik, Taking Preferences Seriously: A Liberal Theory of International Politics, 51 Int’l Org. 513 (1997); Anne-Marie Slaughter, International Law in a World of Liberal States, 6 Eur. J. Int’l L. 503 (1995); Anne-Marie Slaughter, The Liberal Agenda for Peace: International Relations Theory and the Future of the United Nations, 4 Transnat’l L. & Contemp. Probs. 377 (1995); Burley & Mattli, supra note 22.

⁴⁰ Laurence R. Heifer & Anne-Marie Slaughter, Toward a Theory of Effective Supranational Adjudication, 107 Yale L.J. 273 (1997). Liberal democracies may, however, resist international rules and institutions, believing their domestic systems to be adequate. Id. at 332–33.

⁴¹ For a pioneering work, see Robert O. Keohane & Joseph S. Nye, Power and Interdependence: World Politics in Transition (1977). See also Bringing Transnational Relations Back in: Non-State Actors, Domestic Structures, and International Institutions (Thomas Risse-Kappen ed., 1995).

⁴² See Hilary Charlesworth, Feminist Methods in International Law, 93 AJIL 379, 387 (1999) (describing lobbying efforts of women’s rights groups).

⁴³ Simma & Paulus, supra note 5, at note 73 and corresponding text.

⁴⁴ For normative writings by legal scholars, see, e.g., Thomas M. Franck, The Power of Legitimacy Among Nations (1990); Harold Hongju Koh, Why Do Nations Obey International Law? 106 Yale L.J. 2599 (1997).

⁴⁵ Charlesworth, supra note 42.

⁴⁶ Alexander Wendt, Anarchy Is What States Make of It: The Social Construction of Power Politics, 46 Int’l Org. 391 (1992).

⁴⁷ See Hedley Bull, The Anarchical Society (1977); Barry Buzan, From International System to International Society: Structural Realism and Regime Theory Meet the English School, 47 Int’l Org. 327 (1993); Andrew Hurrell, International Society and the Study of Regimes: A Reflectivist Approach, in Regime Theory and International Relations 49 (Volker Rittberger ed., 1993).

⁴⁸ See, e.g., Martti Koskenniemi, The Place of Law in Collective Security, 17 Mich. J. Int’l L. 455, 467–78 (1996) (normative discourse at Security Council transformed identities, interests and understandings of “security”).

⁴⁹ See Charlesworth, supra note 42, at 383.

⁵⁰ See Buzan, supra note 47, at 345.

⁵¹ See, e.g., James D. Morrow, The Laws of War as an International Institution, paper presented at Program on International Politics, Economics and Security, University of Chicago (Feb. 1997); James D. Morrow, The Institutional Features of the Prisoners of War Treaties, paper presented at Rational International Institutions conference, University of Chicago (Apr. 1998) (on file with author).

⁵² Morrow’s approach incorporates factors like information, perceptions, expectations and norms, but in an interest-based strategic context.

⁵³ Cf. Dunoff & Trachtman, supra note 6, at note 30 (describing law as a precommitment strategy).

⁵⁴ The Conventions provided for “protecting powers” to serve similar functions.

⁵⁵ Responses to breach may be authorized by states or carried out by individual units.

⁵⁶ Cf. Dunoff & Trachtman, supra note 6, at 403 (emphasizing importance of reciprocity).

⁵⁷ See Kenneth W. Abbott, “ Trust But Verify”: The Production of Information in Arms Control Treaties and Other International Agreements, 26 Cornell Int’l L.J. 1 (1993) (discussing information strategies).

⁵⁸ Martha Finnemore, National Interests in International Society 69–88 (1996).

⁵⁹ The Christian theme was soon abandoned, allowing non-Christian countries to participate. Id. at 83–84.

⁶⁰ Britain’s opposition was based on the belief that its policies already conformed to Convention principles. See note 40 supra.

⁶¹ See Chayes & Chayes, supra note 15 (emphasizing persuasion in regulatory regimes).

⁶² Morrow’s hypothesis is based on the losing side’s reduced ability to retaliate.

⁶³ Crimes against humanity have historically been tied to armed conflict, but the statutes of the Rwanda Tribunal and the international criminal court reject that link.

⁶⁴ See Gerry J. Simpson, War Crimes: A Critical Introduction, in The Law of War Crimes 1, 5,9, 21–23 (Timothy L. H. McCormack & Gerry J. Simpson eds., 1997) (war crimes trials create moral demarcation between trier and accused, in spite of similar conduct).

⁶⁵ See Margaret E. Keck & Kathryn Sikkink, Activists Beyond Borders 83–84 (1998).

⁶⁶ An ad hoc tribunal to try surviving leaders of the Cambodian Khmer Rouge is currently under consideration; it is unclear whether the current Cambodian Government will cooperate.

⁶⁷ See Simpson, supra note 64, at 8–9.

⁶⁸ See generally Keck & Sikkink, supra note 65; Audie Klotz, Norms in International Relations: The Struggle Against Apartheid (1995).

⁶⁹ Keck & Sikkink, supra note 65, at 5.

⁷⁰ Id. at 81–82, 87–88.

⁷¹ Id. at 103–06.

⁷² Id. at 1–4, 6.

⁷³ See id. at 27. See also Charlesworth, supra note 42, at 386–87.

⁷⁴ Keck & Sikkink, supra note 65, at 117–19, 207–09.

⁷⁵ See Stephen D. Krasner, paper prepared for Conference on Norms in Future International Politics, University of California at Los Angeles (Nov. 1998) (on file with author).

⁷⁶ For an analysis favoring a limited duty to prosecute under international law, see Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537 (1991).

⁷⁷ Cf. Thomas M. Franck, The Emerging Right to Democratic Governance, 86 AJIL 46 (1992) (arguing that international law is coming to require democratic national governance as condition of participation in international community).

⁷⁸ See Abbott & Snidal, supra note 23.

⁷⁹ British Home Secretary Straw utilized this tactic in his decision of December 1998 that authorized Spain’s request for the extradition of General Pinochet to proceed.

⁸⁰ States often enter informal agreements to avoid domestic approval processes and provide greater flexibility. See Charles Lipson, Why Are Some Agreements Informal? 45 Int’l Org. 495 (1991).

⁸¹ States will have material interests when their nationals are among the victims, as with Spanish citizens in Pinochet’s Chile, or when they are forced to receive refugees. States may also feel “moral externalities” from foreign atrocities. See Dunoff & Trachtman, supra note 6, at 404.

⁸² See Heifer & Slaughter, supra note 40. See also Slaughter, Keohane & Moravcsik, supra note 23; G. Richard Shell, Trade Legalism and International Relations Theory: An Analysis of the World Trade Organization, 44 Duke L.J. 829 (1995) (arguing for similar procedures in the WTO).

⁸³ See, e.g, Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980); Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), cert. denied, 518 U.S. 1005 (1996), summarized in 90 AJIL 658 (1996). See also Harold Hongju Koh, Transnational Legal Process, 75 Neb. L. Rev. 181 (1996) (discussing such litigation).

⁸⁴ Cf. Kenneth W. Abbott, GATT as a Public Institution: The Uruguay Round and Beyond, 18 Brook. J. Int’l L. 31 (1992) (recommending the development of public institutions to enforce international economic norms).

⁸⁵ See Heifer & Slaughter, supra note 40, at 300–04 (analyzing structural characteristics of effective supranational courts).

⁸⁶ According to former presiding Judge Goldstone, as of 1997 no state had volunteered prison facilities for the Rwanda Tribunal, and only eight for the ICTY. See Richard Goldstone, Conference Luncheon Address, 7 Transnat’l L. & Contemp. Probs. 1 (1997).

⁸⁷ Abbott & Snidal, supra note 23. Conceiving of impingement on national sovereignty as a “cost” suggests that states compare that and other costs to the benefits of international cooperation, as economic analysis would suggest. See Dunoff & Trachtman, supra note 6, at 397–98. It also suggests that sovereignty costs vary depending on the nature of the issue, the political context, the size and power of the state in question, and other considerations; sovereignty costs can even be positive.

⁸⁸ “Epistemic communities” are transnational networks of individuals, private organizations, and elements of national governments and international organizations united by common knowledge, typically scientific or technical knowledge. See Knowledge, Power and International Policy Coordination, 46 Int’l Org. (special issue, Peter Haas ed., Winter 1992) (analyzing epistemic communities). Knowledge-based networks appear especially successful at identifying problems, placing them on the political agenda and suggesting solutions. Another community relevant to the atrocities regime is the network of forensic scientists that has documented atrocities since the early 1980s. See Keck & Sikkink, supra note 65, at 93–94, 109–10.

⁸⁹ Keck & Sikkink, supra note 65, at 12–13, argue that NGOs in repressive states use TANs to create international norms, then use those norms to modify domestic political and legal systems.

⁹⁰ See Martha Finnemore, International Organizations as Teachers of Norms, 47 Int’l Org. 565 (1993).

⁹¹ As this was written, however, the NATO Stabilization Force arrested a prominent Serbian general, Radislav Krstic, on charges of genocide and crimes against humanity growing out of the massacres of Bosnian Muslims fleeing Srebrenica.

⁹² See, e.g., Theodor Meron, International Criminalization of Internal Atrocities, 89 AJIL 554, 555 (1995).

⁹³ However, the seminal Chayes, Ehrlich & Lowenfeld casebook on international legal process and other works by those authors recognize both that formal legal processes play a limited role in international politics and that even formal legal processes are often politicized. This is reflected in their conclusion, see O’Connell, supra note 14, at 337, that law “constrained,” “justified” and “organized” political action by legal decision makers, rather than supplanting it.

⁹⁴ Heifer & Slaughter, supra note 40, consider the European Court of Human Rights and the UN Human Rights Committee as well as the ECJ, and develop a “checklist” of judicial techniques for effective supranational adjudication.

⁹⁵ See Burley & Mattli, supra note 22.

⁹⁶ Id. at 54.

⁹⁷ Many societies are less aware of the possibilities of judicial activism than the United States, and are accordingly more acquiescent.

⁹⁸ See Prosecutor v. Tadić, supra note 13, para. 134, 35 ILM at 70–71.

⁹⁹ See Heifer & Slaughter, supra note 40, at 323–28.

¹⁰⁰ See, e.g., Goldstone, supra note 86.

¹⁰¹ See, e.g., Geoffrey Garrett, The Politics of Legal Integration in the European Union, 49 Int’l Org. 171 (1995).

¹⁰² Karen Alter argues that national politicians are not fooled, but have shorter time horizons than judges because of periodic elections. Karen Alter, Who Are the “Masters of the Treaty”?: European Governments and the European Court of Justice, 52 Int’l Org. 121 (1998).

¹⁰³ See, e.g., Heifer & Slaughter, supra note 40; Geoffrey Garrett, R. Daniel Kelemen & Heiner Schulz, The European Court of Justice, National Governments, and Legal Integration in the European Union, 52 Int’l Org. 149 (1998); Walter Mattli & Anne-Marie Slaughter, Revisiting the European Court of Justice, 52 Int’l Org. at 177.