In Rewarding in International Law, Anna van Aaken and Betül Simsek organize and refocus much of the existing literature on international cooperation and compliance highlighting the set of positive and negative tools available. In this essay, I extend the Rewarding framework, making some additional distinctions between the concepts, which both highlight the possibility of rewarding in international law and sketch the limits for such analysis. The first part differentiates rationalistic conceptions of reputation, on the one hand, and behavioral notions of self-esteem, on the other, as analytically distinct mechanisms for rewarding. By pulling these concepts apart, this essay emphasizes the different causal paths for influencing government actors and makes the case for an independent place for self-esteem in the Rewarding framework. In the second part, this essay questions whether rewards are always positive (and thus Pareto efficient) in light of third-party effects. Some rewards are competitive; a reward to one party is a relative punishment to third parties who are competitively disadvantaged by an exclusion from the reward. The incorporation of third-party analysis underscores the political limits of rewarding stemming from third-party resistance to rewarding or, alternatively, demands for additional rewards from third parties that can create capacity concerns for rewarding states.

Anne van Aaken and Betül Simsek's article represents a significant contribution to the literature on international legal compliance. It pushes forward our understanding of the role that positive incentives play in its promotion, usefully highlights potential tradeoffs between positive and negative incentives, and identifies ways in which rewards and penalties may be employed together. While the authors suggest that a richer understanding of rewarding is useful for questions of institutional design, they purposefully focus on the compliance-side of the coin. This essay builds on their theoretical and conceptual ground-clearing to consider rewarding's implications for treaty negotiations and design. In doing so, it focuses on the role that time implicitly plays in the authors’ analysis and argues that assumptions about time horizons inflect all design calculations. For this reason, understandings of temporal dynamics should be foregrounded in both academic and policy realms.

Explaining the drivers of compliance with international law has been a central concern of international lawyers (and many others) for decades. As international agreements have proliferated—exact numbers are elusive, but there may be 75,000 or more—understanding compliance has only grown in importance. In previous work we each have explored the question of compliance, focusing on the conceptual difficulties with compliance as a measure of effectiveness, the role of reputation, and other factors. The literature on compliance with international law is rich, interdisciplinary, and, at this point, over three decades old. In Rewarding in International Law, Anne van Aaken and Betül Simsek seek to offer a new perspective on the enduring topic of compliance: that of rewarding. In this essay, we suggest that rewards, when properly defined, are a conceptually interesting but empirically rare tool in the arsenal of states seeking to improve compliance with international law.

Rewarding in International Law foregrounds a topic that has been in the compliance literature for years but, as Anne van Aaken and Betül Simsek point out, tends to get treated as the mirror opposite of penalizing and therefore of little distinct analytical significance. In this essay, I seek to engage with their argument not by way of critique but rather to highlight some gaps and build on their insights. I introduce the notion of “status” as a reward and identify institutional mechanisms for conferring status, arguing that this is especially important in the multilateral context where institutions tend to be more prominent than in bilateral, transactional relations.

Compliance in international law remains a challenge and the search to understand whether and why states comply with international human rights law endures as well. This essay endorses van Aaken and Simsek's contention that rewarding is an important yet underexplored mechanism for ensuring compliance with international law, but suggests that certain features of international human rights law may make rewarding less apposite in the human rights sphere for three interrelated reasons. First, compliance with international human rights law depends on domestic as well as international action, potentially rendering rewarding between states less relevant. Second, the unique and complex structure of international human rights law obligations and their measurement may make an assessment of the effectiveness of rewarding more difficult, at least for certain categories of rights and obligations. Third, rewarding may be inappropriate in international human rights law given its core normative purpose of protecting human dignity. As such, this essay explores whether rewarding can or should be pursued in international human rights law.

A growing body of research applies behavioral approaches to the study of international law, mainly by studying convenience samples of students or other segments of the general public. Alongside the promises of this agenda are concerns about applying findings from non-elite populations to the people, and groups of people, charged with most real-world decision-making in the domain of law and governance. This concern is compounded by the fact that it is extremely difficult to recruit these actual decision-makers in a way that allows for direct study.

Behavioral approaches have been successful in challenging the rational actor model of international legal analysis and supplementing that model with empirical evidence. Yet observing a set of features about the world requires ignoring or bracketing others. Behavioral approaches retain their own inevitable blind spots, which are not necessarily products of flawed experimental design, but stem from the paradigmatic traits of these approaches. These blind spots derive from an emphasis on methodological individualism, positivism, and experimentation. This emphasis may obscure the social aspects of international legal decision-making. For example, behavioral approaches to international law often use experimental data to describe cognitive tendencies. In doing so, these approaches may not seek and likely will not have tools to discover the meaning of a state action, or the human actions that produce that state action. That latter inquiry requires “historical, ethnographic and other sociological methods that analyze social life outside of the experimental setting.” In sum, behavioral approaches pursue both theoretical and empirical concerns different from those pursued in an interpretive mode of meaning-making.

Boilerplate treaty provisions are identical or nearly identical terms that reflect settled legal language in treaties with different states parties. They are often taken from model treaties or templates and reflect non-negotiated “default rules” or rules that emerged in international practice, rather than individually tailored provisions adapted to the circumstances of the specific contracting parties. Although widespread in international economic law, boilerplate provisions have not been subject to much scrutiny, unlike their distant cousins in contract law. This essay highlights drivers and functions of boilerplate in international economic law along with core expectations from rationalist and behavioral approaches. Boilerplate can provide efficient solutions to international economic problems, for instance by reducing contracting costs, and provide bargaining leverage in asymmetric negotiations. Yet boilerplate can also result in unintended and unwanted consequences, such as when drafters fail to carefully consider “default” provisions or have an excessive preference for the status quo.

While Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT) prescribe the rules of interpretation for international treaty law as “disciplining rules,” the rules of interpretation themselves are understudied from a cognitive psychology perspective. This is problematic because, as Jerome Frank observed, “judges are incurably human,” like everybody else. I submit that behavioral approaches could provide insights into how biases and heuristics affect the way judges and other interpreters use the VCLT rules.

The use of nudges—“low-cost, choice-preserving, behaviorally informed approaches to regulatory problems”—has become quite popular at the national level in the past decade or so. Examples include changing the default concerning employees’ saving for retirement in a bid to encourage such saving; altering the default about consent to posthumous organ donation to increase the supply of organs for transplantation; and informing people about other people's energy consumption to spur them to reduce theirs. Nudges are therefore used to promote the welfare of the people being nudged, and of society at large. However, the use of nudges has sparked a lively normative debate. When turning to the international arena, new arguments for and against nudges can be raised. This essay focuses on the normative aspects of using nudges in the international arena.

Since the early 1990s, the law and development paradigm of “violence against women” (VAW) has framed gender-based violence against girls and women, especially intimate partner violence, as a grave violation of women's fundamental human rights and a major public health problem demanding concerted state action. Although women of all ages, social classes, races, religions, and ethnicities suffer gender-based violence, international law recognizes that VAW affecting indigenous women is compounded by historical and ongoing racial discrimination. This essay signals the contributions of indigenous women and allied anthropologists in Latin America who draw on decolonial, intersectional, and locally-grounded feminist perspectives to consider the challenges of addressing gender-based VAW. Working in collaboration with different women's collectives and organizational processes, anthropologists have conceptualized and documented the specific, myriad forms of violence affecting indigenous women. In their efforts to understand the origins, nature, and effects of violence, and to envisage possible remedies, they privilege indigenous women's voices, standpoints, and demands for collective self-determination. In this way they have contributed to international legal debates on VAW by highlighting the shortcomings and limitations of universal constructs of women and gender violence.

International legal scholars have long been concerned with the transnational lawmaking process, including the development, interpretation, and implementation of international norms. Yet there has been insufficient attention devoted to the micro-level details by which international law operates. Anthropologists can shed unique insights to this process by uncovering power dynamics, disaggregating institutions and actors, and revealing local practices on the ground. In this essay, I will analyze global supply chain governance through an ethnographic lens in order to examine the role of corporate actors as translators of international law. I argue that an anthropological approach can illuminate how corporations shape international law in practice by uncovering technologies of governance, relations of power, and chains of translation in the transnational lawmaking process.

How might the connections between anthropology and international law become more dynamic? I reflect upon this question in this essay using ethnographic insights from the documentary cycles of the UN Human Rights Committee, the treaty body monitoring state compliance with the International Covenant on Civil and Political Rights. Building on recent anthropological scholarship on international organizations, bureaucracy, and documents, this essay discusses the knowledge practices and legal technicalities that characterize the international community of human rights lawyers. In particular, I reflect on the legal fiction of difference governing UN treaty bodies’ operations and the empirical sameness of participants in different formal categories in the shared community of practice of human rights lawyers. I conclude by suggesting that anthropological insights could significantly enrich our shared understanding of the diverse and subtle effects of human rights monitoring. Simultaneously such insights may offer rejuvenated inspiration for those international lawyers tackling a sense of losing faith in their discipline, both as an influential tool of world improvement and an invigorating intellectual tradition.

This essay examines the ways in which anthropologists have tracked the rise and fall of international law after the end of the Cold War. It argues that anthropological research has made important contributions to the wider understanding of international law as a mechanism for social and political change, a framework for protecting vulnerable populations, and a language through which collective identities can be expressed and valorized. Yet, over time, international law has lost many of these expansive functions, a shift that anthropologists have also studied, although with greater reluctance and difficulty. The essay explains the ways in which particular categories of international law, such as human rights and international criminal justice, grew dramatically in importance and power during the 1990s and early 2000s, a shift whose complexities anthropologists studied at the local level. As the essay also explains, anthropological research began to detect a weakening in human rights implementation and respect for international legal norms, a countervailing shift that has broader implications for the possibilities for international cooperation and the resolution of conflicts, among others. At the same time, the retreat of international law from its highpoint in the early post-Cold War years has given way to the reemergence of non-legal strategies for advancing change and accounting for past injustices, including strategies based on social confrontation, moral shaming, and even violence.

Under the banner “AI (artificial intelligence) for good,” new technologies are becoming more and more central to the agendas of global and regional institutions, as technologies to be embraced and regulated at the same time. This is indicated by the 2018 UN Secretary General's Strategy on New Technology, and by the most recent European Commission proposal to regulate artificial intelligence systems. In this essay, I discuss how anthropology and its ethnographic method could contribute to our understanding of the AI-turn in global governance, by shedding greater light on the effects that the use of this technology has for society, the work of institutions, and the production and application of international law. I argue that engaging ethnographically with AI techniques and knowledge could also bring about a transformation in governance, policy-making, and anthropological theory.

In “Are There ‘Inherently Sovereign Functions’ in International Law?”, Frédéric Mégret provides a deeply insightful reflection on “the essence of the state” from the point of view of international law, outlining a theory about the inherently sovereign functions in international law. He carefully identifies existing norms of international law that articulate certain public functions to be performed solely by the state rather than delegating them to private actors. Mégret offers functional and intrinsic rationales, suggesting that individuals have a right to benefit from certain public functions exercised by state authority, such as legislation and adjudication, what perhaps could be termed “the human right to the state.” In this essay, I suggest that it is indeed possible to derive such demands from the requirements of stable and sustainable governance that are embedded in the concept of sovereign responsibility, as well as from the rights associated with democracy and self-determination. I further argue that Mégret's inquiry can and must be extended also to explore the other side of the coin: the role of international law in facilitating (and possibly limiting) the delegation of public authority to unaccountable international organizations and other global governance bodies.

Frédéric Mégret's extremely rich and interesting article implicates a wide range of issues. Luckily, a lot has already been written about some of them elsewhere. In any case, the limited scope of this essay precludes engaging with them all again here. What it will do instead is explore ways of contributing further to the article's important, timely and, I would like to argue, providential project, which is to reflect over and develop the publicness of the international legal order. I will present comments on three dimensions of that project: the language, the scope, and the institution of what one may refer to as “the international public.” My claim is that, to succeed, the article's argument should move away from the functional approach to publicness, embrace public institutions of international law other than states, and focus on the institutional dimension of international public law.