The Dynamics Of International Law

This page intentionally left blank THE DYNAMICS OF INTERNATIONAL LAW Paul F. Diehl and Charlotte Ku’s new framework for international law divides it into operating and normative systems. The authors provide a theory of how these two systems interact, which explains how changes in one system precipitate changes and create capacity in the other. A punctuated equilibrium theory of system evolution, drawn from studies of biology and public policy studies, provides the basis for delineating the conditions for change and helps explain a pattern of international legal change that is often infrequent and sub-optimal, but still influential. p a u l f . d i e h l is Henning Larsen Professor of Political Science and University Distinguished Teacher/Scholar at the University of Illinois at Urbana-Champaign. c h a r l o t t e k u is Assistant Dean for Graduate and International Legal Studies at the University of Illinois College of Law, and Co-Director of the Centre on Law and Globalization, a partnership of the American Bar Foundation and the University of Illinois College of Law. THE DYNAMICS OF INTERNATIONAL LAW PAUL F. DIEHL and CHARLOTTE KU CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Dubai, Tokyo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521198523 © Paul F. Diehl and Charlotte Ku 2010 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2010 ISBN-13 978-0-511-67533-1 eBook (NetLibrary) ISBN-13 978-0-521-19852-3 Hardback ISBN-13 978-0-521-12147-7 Paperback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. CONTENTS Acknowledgements page vi 1 Introduction 2 A new framework for analysis and a model for legal change 28 3 The influence of normative change on the operating system 74 4 Extra-systemic adaptations to systemic imbalance 5 The influence of the operating system on normative change 129 6 Implications and future directions References Index 1 173 190 v 151 103 ACKNOWLEDGEMENTS The authors would like to thank a number of individuals and organizations that assisted in the completion of this work. The following individuals read or commented on different parts of the manuscript: Lee Alston, Karen Alter, Amitai Aviram, Robert Beck, Bear Braumoeller, Edwina Campbell, Xinyuan Dai, John Gamble, Tom Ginsburg, Lawrence LeBlanc, Sara McLaughlin Mitchell, Ron Mitchell, Robert Pahre, Anne Peters,