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Renovating the procedural architectureof international lawMark Raymonda

a Balsillie School of International Affairs, Centre for InternationalGovernance Innovation, Waterloo, CanadaPublished online: 20 Dec 2013.

To cite this article: Mark Raymond (2013) Renovating the procedural architecture of internationallaw, Canadian Foreign Policy Journal, 19:3, 268-287, DOI: 10.1080/11926422.2013.845580

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Renovating the procedural architecture of international law

Mark Raymond∗

Balsillie School of International Affairs, Centre for International Governance Innovation,Waterloo, Canada

Keywords: international law; constructivism; Canadian foreign policy

Introduction

The starting point of this article is the view that global governance refers to a set of social practicesfor accomplishing rule over particular issue areas.1 Global governance is a thoroughly legalizeddomain.2 Even in issue areas distinguished by a relative absence of formal legal instruments,such as corporate social responsibility, the day-to-day practices that accomplish global govern-ance are rooted in various forms of soft law and international legal discourse.3 Among states,intergovernmental organizations (IGOs) and even most nongovernmental organizations(NGOs), the notion that global governance is a fundamentally legal undertaking is effectivelytaken for granted. The depth of this agreement is reflected in the non-contentious nature ofboth forms and processes in modern global governance. The underlying legitimacy of these prac-tices is seldom questioned, and dissenting actors (such as the early Soviet Union and Salafist jihadigroups) are consistently marginalized.

However, issues of form and process have not always been noncontroversial aspects of inter-national relations. The transition from natural to positive law in Europe was concerned with pre-cisely such issues and entailed extended (and violent) episodes of political contestation (Reus-Smit 1999, Bukovansky 2002, Owen 2010). Similarly, colonization can be understood in largepart as an effort to supplant local systems of rule with highly unequal rule by Europeans overnon-European others. Assertions of the superiority of European processes for making and inter-preting rules were central to the justifications articulated in defence of empire-building projects(Gong 1984, Keene 2007). Although European encroachment was typically resisted, resistancewas generally ineffective in all but a handful of cases (e.g., Ethiopia prior to the 1930s).4

Despite their bloody provenance, these European procedures for rule-making and ruleinterpretation form the foundation of current international practices. Modern variants dateroughly from the end of the Napoleonic Wars (Nicolson 1946, Kissinger 2000, Schroeder1994); international lawyers and diplomats have made significant progress in codifying them

# 2013 NPSIA

∗Mark Raymond holds a PhD in Political Science from the University of Toronto. He has taught inter-national relations courses at the University of Toronto and the University of Waterloo. His research interestsinclude international relations theory, international law and organization, international security and inter-national history, including the history of global governance. He is currently also conducting research onInternet governance. Centre for International Governance Innovation, Global Security Program, 57 ErbStreet W, Waterloo, Ontario, N2L 6C2 Canada. Email: mraymond@balsillieschool.ca

Canadian Foreign Policy Journal, 2013Vol. 19, No. 3, 268–287, http://dx.doi.org/10.1080/11926422.2013.845580

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over the course of the latter part of the nineteenth century and the first half of the twentiethcentury (Boyle 1999), culminating in such agreements as the Montevideo Convention on theRights and Duties of States, the Statute of the International Court of Justice, the Vienna Conven-tions on Diplomatic Relations and on the Law of Treaties and, most recently, the Draft Articles onState Responsibility issued by the International Law Commission (ILC). These documents, along-side other critical rules of customary international law such as pacta sunt servanda, comprise whatI refer to as the procedural architecture of international law.

The procedural architecture simultaneously enables and constrains participants in inter-national legal discourse, acting as: a condition of possibility for the accomplishment of substan-tive legal agreements, a baseline against which varying forms of soft law can be made sociallyintelligible, and as an instruction manual (imprecisely) delineating proper and improper socialmoves in the game of rule-making and rule interpretation. In H.L.A. Hart’s (1994) terms, theprocedural architecture of international law is comprised of secondary rules, or rules aboutrule-making; Paul F. Diehl and Charlotte Ku have similarly (2010) distinguished between the(procedural) operating system of international law and the (substantive) normative system ofinternational law.

While the procedural architecture of the contemporary international legal system is largelytaken for granted (at least by influential actors), cracks in the foundation are becoming increas-ingly apparent. To a first approximation, the threat to the legitimacy of the procedural architec-ture of international law is a function of decolonization and, with it, the increasing culturalheterogeneity of the international system. As non-Western states become more powerful, theymay well become increasingly willing to question the dominance of international rule-makingpractices rooted in European traditions and to assert the legitimacy of alternate practicesrooted in their own cultural traditions of rule-making.

Over the medium to long-term, such a trend has the potential to undermine the legitimacy ofinternational law more generally. Rules arrived at illegitimately are highly unlikely to attract sig-nificant rates of voluntary compliance, and international law “hangs together”5 in large partbecause actors routinely comply for reasons other than fear of enforcement, and even partiallyindependently of thinking associated with logics of consequences. Diminished legitimacy forinternational law would, in turn, entail potentially severe consequences for global governancein toto because global governance is accomplished overwhelmingly via legal mechanisms. Itwould undermine attempts to create new rules and institutions, whether in conventional (e.g.,nuclear proliferation, climate change, etc.) or emerging (e.g., cybersecurity and internet govern-ance) issue areas. It would also complicate efforts to operate existing rules and institutions (e.g.,human rights law, the trade dispute resolution regime, etc.), since these institutions depend onthe application of general rules to particular cases in a manner consistent with proceduralrules. Potential erosion of the procedural foundations of international law thus presents a criticallong-term challenge to the modern international system.

Governance of the internet may represent something of a canary in the coal mine; ongoingefforts to refine and update legacy governance institutions have become increasingly contentious.What had been a technical area of governance notable for the influence of an epistemic commu-nity of engineers and researchers concerned primarily with the business of coordinating effectivestandards shows clear signs of growing state involvement and concern for the distribution ofgains.6 These tensions have been exacerbated by deep disagreements over procedural rulesamong various state and non-state actors. The World Conference on International Telecommu-nications (WCIT) in December 2012 collapsed in significant part as a result of a controversiallate-night procedural decision. The result was the creation of a parallel treaty regime for telecom-munications; while the two treaty regimes are, for the moment, similar in most respects, path

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dependence creates the risk that they will increasingly diverge over time, significantly complicat-ing and perhaps endangering global interoperability online (Raymond and Smith 2013).

In the remainder of this article, I provide a brief overview of several critical procedural pillarsof international law, highlighting noticeable cracks in their foundations. In line with the mandateof the journal, the paper concludes by identifying policy options for updating and for enhancingthe legitimacy of the procedural architecture of international law.

The procedural pillars of international law

Given the relative autonomy states have enjoyed from their subjects (and, later, citizens), inter-national law is primarily a matter of law between states. In fact, as I will argue in further detailbelow, the absence of clear rules specifying the role of non-state actors in legal and quasi-legalprocesses for international cooperation is a key source of tension that could undermine thefuture legitimacy, and thus effectiveness, of mechanisms for global governance. Nevertheless,while the decline of the state has been predicted for close to 20 years (Strange 1996), statesremain vital players in the international system and in global governance. Their virtual monopolyover official standing in the creation, interpretation and application of international rules is animportant power resource; this monopoly is the product of particular social rules. When statesneed or want to identify their rights and obligations under public international law, or thoseof others, they perform particular bureaucratic standard operating procedures. For example,they might consult filed memos summarizing their understandings of customary internationallaw and search for relevant treaty provisions applicable to the case at hand. They know to dothese things, and how to communicate their positions to other actors, because they haveaccess to knowledge about the procedural pillars of international law. These rules are most rel-evant to issues exclusively involving state actors, but given that states are (actually or potentially)involved in every issue, I will also argue that they are an important background factor in issuesthat involve non-state actors. In this section, I briefly describe several crucial procedural pillarsthat undergird the entire universe of issue-specific bodies of international law. In doing so, Ialso highlight tensions and weaknesses in the intersubjective agreements that constitute thepillars. The pillars can be grouped under four general headings: (1) rules dealing with who hasstanding to participate in making, interpreting and applying rules, (2) how actors communicatewith each other, (3) how rules are interpreted and applied, and how disputes are resolved, and (4)the consequences of a breach of an international legal rule.

The most fundamental of these is the pacta sunt servanda rule stipulating that agreementsmust be kept. On its own, however, this rule says relatively little about the crucial proceduresand practices of international law. Instead, it must be read in the context of a dense web ofrelated rules – for instance, about what kinds of parties are legitimately entitled to participatein making binding international agreements. The latter is a function of the law of recognition,which developed as customary international law and was codified in the Montevideo Conventionon the Rights and Duties of States (1933). Article 1 of the convention establishes four “qualifica-tions” for statehood: permanent population, defined territory, government and capacity to enterinto relations with other states. Article 3 makes clear that “the political existence of the state isindependent of recognition by the other states.” Article 6 specifies that recognition “merely sig-nifies that the state which recognizes it accepts the personality of the other with all the rights andduties determined by international law” and that “recognition is unconditional and irrevocable.”Finally, Article 7 provides that recognition “may be express or tacit,” and that the latter form ofrecognition “results from any act which implies the intention of recognizing the new state.” Whilethe convention is generally accepted as reflecting the state of customary international law, whichis binding on all states independently of them expressing consent to be bound by a specific rule, as

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with any social rule, there is sometimes a gap between nominal rules and actual practice. In thecase of the law of recognition, this gap is often the result of actors pursuing interests that areshaped – and in some cases created – by the nominal rules. For example, despite meeting thequalifications for statehood identified in the convention and previously having occupied theChinese permanent seat on the United Nations (UN) Security Council, the Republic of Chinais now accorded diplomatic recognition by only a handful of states. The politics around diplo-matic recognition of mainland China versus Taiwan are intelligible only because recognitionoffers tangible and intangible benefits. As a result of these benefits, the mainland and Taiwanesegovernments have interests in pursuing recognition and are thus willing to offer incentives toactors who conform with their respective preferences (and impose costs, where possible, onthose that do not).

The politics of recognition, and perhaps also the law of recognition, are increasingly complicatedby the efforts of non-state actors to acquire greater international capacity. While attempts by non-state groups to participate in international politics are hardly new (Nye and Keohane 1971, Hall1997, Keck and Sikkink 1998, Klotz 2002, Owen 2010, Phillips 2010), such groups have enjoyedrecent, high-profile successes in advancing their policy goals (Price 1998, Glasius 2006).7 It is plaus-ible to argue that, at least within industrial democracies, such participation opportunities for NGOsand for large companies are becoming routinized in practice; delegations to treaty conferences(including WCIT) increasingly incorporate representation from the private and voluntary sectors.While it is unlikely that full and equal participation will be formalized in international law in theforeseeable future, this is a case in which nominal rules may not be keeping pace with actual practiceor, more troubling, where states’ ideas of what constitutes legitimate procedure appear to be diver-ging, as understandings and practices among industrial democracies increasingly differ from those instates that retain more traditional views about the participation of non-state actors in internationalrule-making, interpretation and application.

Apart from the problem of determining which actors are entitled to participate in inter-national law and global governance, the basic procedural rules of international law alsoprovide guidance on what kinds of things actors can legitimately do – and also on the waysthey should be done (and not done). One subset of these rules addresses the ways states maintainreliable communication with each other. As with rules surrounding recognition of states, the fun-damental rules of diplomacy have a long history in customary international law and actual statepractice (Watson 1992, Bozeman 1994, Cohen 1996, Reus-Smit 1999).

Diplomacy is a distinct, complex and adaptive culture (Neumann 2002, Adler-Nissen 2009,Sharp 2009); it is well beyond the scope of this article to make any attempt at enumerating itsmany written and (often deliberately) unwritten rules. The core rules for contemporary diplo-macy, however, were adumbrated in the Vienna Convention on Diplomatic Relations (VCDR)(1961). Accordingly, they are part of the procedural architecture of international law, eventhough the rules of diplomacy and the rules of international law are not co-extensive. TheVCDR was initiated as a draft convention by the ILC, a specialized agency of the UN taskedby the General Assembly with “the progressive development of international law and its codifica-tion” on the basis of Article 13 of the UN Charter (1945, A.13.1.a) and a separate resolution of theUnited Nations General Assembly (United Nations General Assembly 1947). The conventionestablishes the principle (A.2) that diplomatic relations are to be initiated “by mutualconsent,” and identifies the functions of a diplomatic mission (A.3). The treaty is concerned(A.14–18) with issues of diplomatic etiquette, including especially issues of diplomatic pre-cedence (or differential treatment of officials); in this regard, it acts to circumscribe a historicalsource of tension and conflict.

The core of the treaty, however, deals with the nature and limits of what is colloquiallyreferred to as diplomatic immunity. It specifies (A.22) that “the premises of the mission shall

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be inviolable” and that “the receiving State is under a special duty to take all appropriate steps toprotect the premises of the mission . . . and to prevent any disturbance of the peace of the missionor impairment of its dignity.” It specifies that these protections extend to the mission’s vehicles,communications and correspondence (including the diplomatic bag), and to its personnel andtheir families. While diplomatic immunity may be waived by the sending state (A.32), thiswaiver must be explicit and separate waivers must be issued for jurisdiction and for the executionof judgments. In return for these protections, diplomats have (A.41) a “duty . . . to respect thelaws and regulations of the receiving State” and “a duty not to interfere in the internal affairsof that State.” The convention is clear that the protections afforded by diplomatic immunityapply even in case of armed conflict between the states in question (A.44) and that the duty toprotect the premises of the mission survives any breakdown in diplomatic relations betweenthe states (A.45).

While respect for these provisions remains generally robust at the state level, embassies and/ordiplomats are not infrequently targeted by terrorists; the 1979 Tehran hostage crisis, the attack onthe Turkish Embassy in Ottawa in 1985, the 1998 bombings of American embassies in Tanzaniaand Kenya and the 2012 attack on the United States Consulate in Benghazi represent only ahandful of examples. To the extent that diplomatic immunity becomes less respected at thelevel of global or regional public opinion, this may create a chilling effect on the ability ofstates to maintain dialogue and to effectively cooperate, though modern communication technol-ogies may mitigate such potential effects by allowing the conduct of diplomatic relations fromsafe locations.

In addition to providing guidance on how states are to communicate, the procedural archi-tecture of international law also addresses the ways in which they make and interpret rules,resolve disputes and respond to violations. In order to accomplish these tasks, it is necessaryfor actors to have means for identifying legitimate international legal rules. That is, thereneeds to be agreement on the generic sources of international law. Pre-existing agreement onthis matter has been codified in Article 38 of the International Court of Justice (ICJ) statute,which reflects the understanding that international conventions and customary internationallaw are co-equal as sources. It also identifies “the general principles of law recognized by civilizednations” as a subsidiary source of international law. Antonio Cassese (2005, p. 193) concludedthat this source “remained dormant, as it were, for a long time” but that “as soon as it appearedthat new areas of international law contained conspicuous gaps, the rule in question and thesource it envisages have been revitalized.” In modern usage, general principles thus serve agap-filling function, empowering international lawyers and jurists to employ rules from muchmore complete domestic legal regimes to compensate for the relatively underdeveloped natureof international law. The category is now broadly understood to include major protectionsincluding the notions of equality before the law, double jeopardy and the presumption of inno-cence; it also likely includes bedrock rules of evidence and pleading. Note that these rules are, to alarge extent, procedural in nature. However, the inclusion of the descriptor “civilized” associatesthis core component of the procedural architecture of international law with the historical use ofinternational law by Western states as a mechanism of exclusion and domination (Gong 1984,Keene 2007). This poses a potential long-term problem for the legitimacy of both internationallaw and the issue-specific global governance mechanisms for international cooperation built onits foundations, insofar as the Article 38 language provides a rhetorical resource to actors that seekto contest procedures they deem disadvantageous and/or illegitimate.

Beyond the matter of identifying rules of international law, the procedural architecture of theinternational legal system also provides for the interpretation and application of legal rules to par-ticular cases, including whether parties have differing positions necessitating dispute resolutionmechanisms. International law contemplates both third-party and self-help variants of rule

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interpretation and application. The International Court of Justice is identified by its statute (1945,A.1) as the “principal judicial organ of the United Nations.” The court’s statute contains chapterson the organization of the court, the range of issues over which the court has competence, and onprocedures for contentious cases and advisory opinions. With respect to organization and pro-cedure (A.2–33, A. 39–64), the statute provides in significant detail for the selection of justices,who are selected by the UN General Assembly and Security Council from lists prepared byregional groupings and who serve in individual (rather than national) capacity for fixed terms.It requires that the court provide written judgments and that a judgment should name the con-tributing justices and “shall state the reasons on which it is based” (A.56). It further makes clear(A.58) that “any judge shall be entitled to deliver a separate opinion.”

Most significantly, the statute also delegates key aspects of procedural rule-making to thecourt itself; Article 30 provides that “the Court shall frame rules for carrying out its functions.In particular, it shall lay down rules of procedure.” Rationalist international relations scholarshiptypically expects low degrees of delegation by states, in particular to strong judicial bodies (Abbottand Snidal 2000). Given that the ICJ is itself a form of (admittedly limited) delegation, it is all themore surprising that states would accord the court additional latitude in setting its own rules ofprocedure. Since complete contracting is virtually never possible in practice, specifying pro-cedural rules ex ante is a way for principals to constrain the future autonomy of the agent andthereby reduce uncertainty and potential sovereignty costs.

Two factors likely help account for this feature of the court. First, the ICJ was nominally a newbody, but it was widely regarded as the successor to the Permanent Court of International Justice(PCIJ) – one of the most successful pieces of the League of Nations system. Accordingly, statesmay well have been confident the court would adopt highly similar procedural rules. This expec-tation is especially socially intelligible given the strong deference to precedent in legal discourses.Second, states limited the competence of the court in ways that maintained their ability to controlsovereignty costs, primarily by way of the Article 36 provision that “the jurisdiction of the Courtcomprises all cases which the parties refer to it and all matters specially provided for in theCharter of the United Nations or in treaties and conventions in force.” While this limit is animportant one, there are two other avenues by which the court may acquire jurisdiction. Itmay provide advisory opinions (A. 65–68) upon request. Such opinions may have indirecteffects on customary international law by shaping patterns of state practice. A pattern of statepractice that emerged even partially as a result of an ICJ advisory opinion would be a strong can-didate for the second criterion of custom: the presence of opinio juris, or the belief that theconduct in question is legally required. Further, the statute empowers states to “declare thatthey recognize as compulsory ipso facto and without special agreement, in relation to anyother state accepting the same obligation, the jurisdiction of the Court”. Sixty-seven stateshave deposited instruments with the UN Secretary-General indicating their acceptance of com-pulsory ICJ jurisdiction (Declarations Recognizing 2013).

The acceptance of compulsory ICJ jurisdiction by approximately one-third of all states andthe fact that the court maintains an active docket collectively suggest significant acceptance ofthis particular form of international adjudication. Further, the use of international courts isexpanding in the area of both human rights and international criminal law. These new courtsinclude controversial procedural rules that enable individuals to file complaints against states(for example, in the European Court of Human Rights) and that extend the jurisdiction of inter-national courts to individuals (as in the International Criminal Court or ICC). Acceptance ofthese innovations is uneven, and the eventual effectiveness of these new courts will depend inpart on the perceived legitimacy of their procedural innovations.

For the foreseeable future, in any event, it is certain that the state (to paraphrase John Locke)will frequently be in the position of judge in its own case.8 This does not imply, however, that the

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state is legitimately entitled to judge in whatever manner it likes. Rather, the procedural architec-ture of international law furnishes rules for the interpretation both of treaty and custom. In prac-tice, given concerted efforts to codify international law, most cases involve resort to interpretationof both treaty and custom. States retain greatest latitude in the interpretation of customary inter-national law, but even here they are bound by the two criteria for the existence of a customarynorm: the existence of a consistent pattern of state practice, and the presence of evidence thatthe pattern results from opinio juris (the belief that the practice is legally required). These criteriastructure a legal discourse on the status of customary international law that has become a routinepart of international relations, motivating states to act in socially intelligible ways to register theiracceptance or rejection of legal obligations, often in response to the claims of other actors.

The creation, interpretation and application of treaties similarly requires states to reason in ahighly specific fashion, expressed in the Vienna Convention on the Law of Treaties (VCLT)(1969). Like the VCDR, the VCLT was a Draft Convention created by the ILC as part of itsmandate to pursue the development and codification of customary international law. The treaty isnotable for its explicit codification of the pacta sunt servanda rule; Article 26 makes clear that“every treaty in force is binding upon the parties to it and must be performed by them in good faith.”

The treaty articles dwell extensively on the procedures to be followed for establishing theconsent of a state to be bound by a treaty. The default position in international law is that astate is not bound by a treaty until it has expressed its consent to be bound and until thetreaty has entered into force. However, Article 18 makes clear that:

a state is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) ithas signed the treaty or has exchanged instruments constituting the treaty subjective to ratification,acceptance or approval, until it shall have made its intention clear not to become a party to thetreaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into forceof the treaty and provided that such entry into force is not unduly delayed.

This is essentially a good faith requirement designed to guard against defections in the final iter-ation of the game prior to the adoption of new rules; such defections have the potential to be cor-rosive of states’ willingness to conclude agreements that will enter into force in the future.

The convention also empowers states to make reservations to treaties. A reservation is definedby Article 2(d) as:

a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting,approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect ofcertain provisions of the treaty in their application to that State.

The convention specifies (A. 19) that reservations are permissible, unless:(a) the reservation is prohibited by the treaty; (b) the treaty provides that only specified reservations,which do not include the reservation in question, may be made; or (c) . . . the reservation is incom-patible with the object and purpose of the treaty.

Typically (A. 20), acceptance of reservations by another state modifies the terms of the treatybetween the reserving state and the accepting state. However, objection to a reservation doesnot prevent the treaty’s entry into force between the reserving and objecting state “unless a con-trary indication is definitely expressed by the objecting State.” Finally, a reservation

is considered to be accepted by a State if it shall have raised no objection . . . by the end of a period oftwelve months after it was notified of the reservation or by the date on which it expressed its consentto be bound by the treaty, whichever is later.

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Overall, the treaty is permissive of reservations and places a positive duty on objecting states toindicate their objections and also to indicate their judgments on the effect of those objections onthe overall force of the treaty. Crucially, however (A. 21), a reservation “does not modify the pro-visions of the treaty for the other parties to the treaty inter se.” Accordingly, even in multilateralnegotiations aimed at producing a single, definitive treaty text, the potential for heterogeneouscontracting remains – unless states limit the scope and nature of reservations that will beaccepted.

The law of treaties contains careful provisions empowering states to limit their commitmentsand to auto-interpret their meaning. These features of this procedural pillar of international lawenhance the importance of rules of interpretation that empower and constrain actors in applyinggeneral rules to particular cases. Rules for establishing consent and for making reservations, alongwith many other rules in the treaty, play a double role – functioning both as instructions on howto make legal commitments and as instructions for how to resolve disputes over them. Rules fordetermining when and how treaties may be suspended, renounced or declared invalid functionsimilarly. However, the VCLT also contains explicitly interpretive rules. I focus briefly on three.

Given the large number of recorded treaties in the modern international system,9 one criticalinterpretive problem is determining the operative legal obligations of states that are party to mul-tiple treaties on the same subject matter. While the VCLT (A. 30) contains clear rules for handlingsuch cases, implementing these rules requires significant legal expertise on the part of states aswell as institutionalized procedures to monitor the potentially varying legal commitments ofthe state and its contracting partners; this expertise and this level of bureaucratic capacity maywell be lacking in much of the developing world.

Article 31 of the VCLT contains the “general rule of interpretation” of treaties; namely, that “atreaty shall be interpreted in good faith in accordance with the ordinary meaning to be given tothe terms of the treaty in their context and in light of its object and purpose.” The article goes onto specify that the context of the treaty comprises the entire text (including preamble andannexes), related agreements between all parties and “any instrument which was made by oneor more parties in connection with the conclusion of the treaty and accepted by the otherparties as an instrument related to the treaty.” It then directs parties interpreting treaties to con-sider “together with the context”: “(a) any subsequent agreement between the parties regardingthe interpretation of the treaty or the application of its provisions; (b) any subsequent practice inthe application of the treaty” and “(c) any relevant rules of international law applicable in therelations between the parties.” In cases where application of the Article 31 procedure either“(a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestlyabsurd or unreasonable,” Article 32 authorizes the use of “supplementary means of interpret-ation, including the preparatory work of the treaty and the circumstances of its conclusion.”Together, these rules provide considerable guidance on interpreting the meaning of treatiesand on applying them to novel situations – especially when considered alongside the additionalrules that indicate additional sources of international legal obligations.

At least with respect to treaty creation, treaty law is likely among the most stable of the pro-cedural pillars of international law. Treaty-making efforts typically proceed without major pro-cedural disagreements and failures are often plausibly attributable to divergent interests amongthe negotiating parties. Recent involvement in treaty-making by civil society groups presentsone potential emerging challenge to the state-centric rules elaborated in the VCLT. While it isunlikely that anything like a customary law requirement to include such groups has been estab-lished by recent state practice in this regard, the emergence of a non-legal norm of consultationmay constrain states (or at least the advanced industrial democracies) in the near term. Failure toconsult may create domestic political costs for particular governments and reinforce argumentsthat international law and global governance are antithetical to democracy. Alternately, it is

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possible that states will be split – with some accepting a norm of consultation while others (re)-assert sovereign prerogatives.

The situation with respect to treaty interpretation and application is somewhat less positive.Perhaps the most important point is that these are highly complex and technical social practices.While wealthy democracies possess the relevant expertise, the same cannot be said for the post-colonial and post-communist states that comprise the majority of the international system. Thecontinued persistence of a wide disparity in social competence in such a basic task for contem-porary world politics could be highly corrosive of the legitimacy of international law – and thusalso of legalized global governance. In particular, it could contribute to a sense that internationallaw is a “heads-I-win, tails-you-lose” game stacked in favour of the powerful.

The final critical procedural pillar of international law relates to the consequences of breachesof international obligations. As with the other elements of the procedural underpinnings of inter-national law, this is an area of longstanding importance in customary international law. Similarly,it is a subject on which the ILC has conducted important work. This work began in 1953 at therequest of the General Assembly; however, it was not concluded until 2001, when the ILC for-mally adopted its Draft Articles on Responsibility of States for Internationally Wrongful Acts(Bodansky and Crook 2002). The draft articles (ILC 2001) were formally commended to UNmembers by the General Assembly in December 2001, but this recommendation was made“without prejudice to the question of their future adoption or other appropriate action”(quoted in Bodansky and Crook 2002).

To date, the draft articles have been generally well received in the scholarly community andhave avoided condemnation by states, but, unlike previous ILC draft treaties on diplomaticrelations and the law of treaties, they have not led to the creation of an official international con-vention. While the ILC’s practice of attempting to reflect customary international law means thatthe lack of a formal treaty may not be a crippling problem, especially given the lack of determinedopposition, the lack of clarity on state acceptance of the articles leaves the state of the law lesscertain than it might otherwise be, and also more susceptible to future challenge given the exist-ence of formal treaties on other key procedural subjects. The argument might be made that the“decision” not to conclude a formal treaty in this instance indicates that the articles on stateresponsibility enjoy less state support than did the draft articles on diplomatic relations andthe law of treaties.

The law of state responsibility fills a critical procedural niche: it deals with determining wheninternational law has been broken, and the consequences of any such breaches. One view of thestate of this law is that it confirms the realist view (via Thucydides) that international politics isinevitably a realm in which the strong do what they can and the weak suffer what they must. Statesare, after all, left to determine the existence of a breach and to employ self-help measures inresponse. A more sophisticated view points out that anarchy is what states make of it (Wendt1992). Different anarchies, both in theory (Wendt 1999) and in historical practice (Reus-Smit1999), are more or less conflictual in nature. While such constructivist work has significantlyenriched international relations scholarship on the international system, the link between themodern institution of anarchy or self-help and the basic procedural rules of international lawon state responsibility has not yet been elaborated. The key point is that self-help in modern inter-national law does not entitle the state to respond to a breach of international law in any manner itpleases.

Combined with the prohibition on the use of force except in cases of individual or collectiveself-defence first articulated in the Kellogg-Briand Pact and reiterated in the UN Charter, the lawof state responsibility constitutes this modern variant of international self-help. The draft articlesestablish (A. 1) that all international wrongful acts entail state responsibility and that (A. 2) aninternationally wrongful act consists of either an overt act or an omission attributable to a

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state and which breaches an international obligation (whether deriving from treaty, custom oranother source of international law) of that same state, irrespective of whether that act islawful under that state’s domestic law (A. 3). The draft articles also provide detailed guidanceon how to attribute an act to a particular state (A. 4–11) as well as on how to determinewhether the conduct constitutes a breach of an international obligation (A. 12–15). They alsoset out exceptions that can excuse otherwise wrongful conduct: consent (A. 20), self-defence(A. 21), countermeasures (A. 22), force majeure (A. 23), distress (A. 24) and necessity (A. 25).The overall effect of these provisions is both to empower states (and other actors they delegatethis responsibility to, including international courts and tribunals) to judge the conduct ofother states and to constrain them from alleging wrongful conduct and attributing responsibilityin a completely arbitrary fashion. The articles also guide states in evaluating their own potentialconduct and in determining how others will interpret it.

In addition, the draft articles on state responsibility perform similar functions empoweringand constraining states in their responses to internationally wrongful acts. They make clear thatstates committing internationally wrongful acts have a continuing legal duty to perform the obli-gation they have broken (A. 29), to cease the wrongful conduct and avoid repeating it (A. 30), and(A. 31) to “make full reparation for the injury caused by the internationally wrongful act.” Thearticles specify the conditions under which reparation is to be accomplished by restitution, com-pensation and/or satisfaction (A. 34–39). They also delineate which states have standing toinvoke claims of responsibility and specify procedures for doing so (A. 42–48). Finally, theyempower injured states entitled to invoke claims to apply self-help countermeasures forcertain purposes and within certain limits, in the event the state committing the alleged wrongfulconduct does not submit to peaceful dispute resolution procedures (A. 49–54). Thus, themodern international system is a self-help system: (1) because the law of state responsibilityhelps constitute it as such; and (2) to the extent that this body of procedural international lawauthorizes and empowers states to make use of self-help. Even where international law empowersstates to adjudicate and enforce their own claims, it does not permit them to do so in a mannerentirely of their own choosing. While power considerations remain relevant for determining therelative degrees of freedom states enjoy in this respect, social competence in performing highlytechnical international legal and diplomatic practices also constitutes a critical power resourcethat has been largely overlooked by scholars of international relations. The procedural foun-dations of international law thus shape the most consequential behaviours and outcomes inthe international system. The law of state responsibility regulates the determination of, andresponse to, breaches of international law.

Like the other procedural foundations of international law surveyed in this paper, there arereasons for concern about the long-term health of the law of state responsibility. The primarydifficulty is the absence of a formal treaty. While the ILC draft articles are accompanied bycareful commentaries that link their substantive content to prior state practice and past adjudica-tion, the conclusion of a formal treaty based on the draft articles would bolster their legitimacyand increase certainty about the content of this area of international law. A treaty would also raiseawareness of these provisions of international law in the minds of leaders and high officials; whiledirect evidence on the degree of familiarity with the law of state responsibility is not available, it isunlikely that leaders are as familiar with these rules as they are with rules on diplomatic immu-nity, for example.

Beyond informational issues related to awareness and certainty, the major concern about thelaw of state responsibility is its narrow focus on states in light of the increasing impact of a varietyof non-state actors on international politics.10 In some respects, individual responsibility has beendealt with by the ICC; corporate social responsibility is addressed by soft law mechanisms such asthe UN’s Global Compact. However, these mechanisms are issue-specific, non-binding or both.

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They are also recent innovations lacking a substantial track record of practice. General rules ela-borating the international responsibility of non-state actors are a priority for the development ofprocedural international law, even if these rules simply clarify that such responsibility is (at leastfor the moment) highly limited and primarily a matter for domestic courts. In the long term,global interconnectedness will likely require either enhanced rules for assigning legal jurisdictionor mechanisms for determining non-state actors’ responsibilities at the international level.

Finally, the law of state responsibility confronts the reality of increasing cultural heterogeneityin the international system and the increasing relevance of non-Western traditions for makingand interpreting rules. The basic framework that independent political communities are entitledto judge each other’s conduct on the basis of man-made rules that empower them to take (cir-cumscribed) self-help measures is not a human universal. Rather, many world cultures are closelyassociated with imperial traditions in which some communities are asymmetrically empoweredwith respect to rule-making (for example, imperial China and India) or with natural law tra-ditions in which rule-making is a divine rather than a human task and rule interpretation isdone with an explicitly religious approach (for example, some strict interpretations of politicalIslam). While there is no guarantee any of these political communities will seek to refashion pro-cedural international law with respect to the determination and consequences of breach, such anoutcome could compromise the conduct of global governance.

Thus far, the article has identified procedural pillars of the international legal system and twosources of strain on those pillars: the trend toward routine involvement of non-state actors inglobal governance at least by advanced industrial democracies, and the increasing cultural hetero-geneity of the international system.11 These trends, and the significance of the procedural pillarsthemselves, must be set against the broader context of contemporary international politics andglobal governance. Doing so highlights two possible objections to my argument that merit par-ticular consideration.

The first is that the growing influence of non-state actors such as NGOs and multinationalcorporations will make the procedural architecture of international law irrelevant for an increas-ing share of global governance issue areas. While this possibility exists, there are good reasons tobelieve instead that these procedural rules are likely to remain relevant even in issues where non-state actors play major roles and where governance is accomplished by non-traditional means,including private contracts and various kinds of soft law instruments. Internet governance illus-trates at least two such reasons.

Legacy internet governance arrangements involve minimal state involvement; core govern-ance functions have been accomplished by corporations and by voluntary associations formedby technical experts. However, as the internet has grown more socially and economically impor-tant, states have begun to show interest in exerting greater control (DeNardis 2013, Raymond andSmith 2013). The terms on which they do so, and the effects on existing sets of procedural rules(for example, for consultation among multiple kinds of stakeholders or for issuing new technicalstandards or protocols), are unclear. State efforts to assume greater rights and responsibilities forinternet governance include negotiations between states according to the procedural rules forinternational law as well as for diplomacy; however, they also include dialogue with incumbent(non-state) governance players. The procedural rules structuring these interactions are not wellspecified. This uncertainty creates the potential for adjustment costs including diminished gov-ernance effectiveness and even for outright conflict between states and legacy governanceinstitutions.

The potential for states to exert authority over areas of governance that have been handledlargely by non-state actors suggests the utility of more clearly specifying the relative rights andresponsibilities of state and (various kinds of) non-state actors. Indeed, the absence of suchrules is precisely the reason the growing influence of non-state actors places strain on the

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procedural architecture of international law. If, as more and more issues involve a complex arrayof stakeholders, international law cannot provide mutually acceptable procedures for making,interpreting and applying rules, it will become a less attractive and less legitimate rule-makingframework.

Even where states do not directly attempt to exert authority over an area of governancemanaged primarily by non-state actors, issue areas do not exist in vacuums. Linkages betweenissue areas ensure the relevance of the primarily state-based procedural architecture of inter-national law because non-state actors will be required to interface with states and with formalIGOs in performing their governance roles. Internet service providers and network operatorshave increasingly had to deal with intelligence, security and law enforcement agencies as wellas privacy watchdogs; major technology companies have had to deal with national and inter-national bodies responsible for intellectual property, competition policy and other issues.These relationships are often negotiated on an ad hoc basis that leaves significant potential forhigh negotiating costs and limited legitimacy. To the extent that procedural rules can beupdated to more clearly specify the roles, rights and responsibilities of various kinds of non-state actors, these problems of coordination can be ameliorated.

A second potential objection to my argument is that increasing cultural heterogeneity in theinternational system will not have a net negative effect on the legitimacy of the international legalsystem that underpins global governance. At least two factors may contribute to such an outcome.One factor is that, since 1945, the vast majority of states in the international system have acquiredat least some minimal level of social competence in basic procedures of international law by virtueof participating in international organizations and multilateral treaty negotiation processes.12

Another factor is that postcolonial states have often been among the most determined adherentsto formal procedures of international law, especially pertaining to sovereign equality and the statemonopoly on standing to participate in international law (Jackson 1990). Both factors are unde-niably significant. The question of net effects, however, is more complicated.

The distribution of competence in basic international legal procedures is highly uneven bothacross states and within them. States participate in international organizations and multilateralnegotiations at differential rates and perform with varying degrees of skill. Such skills also tendto be highly concentrated within national elites. Insofar as post-colonial elites often correspondto ethnic groups, this concentration may mean that increasing democratization and the growth ofthe middle class in non-Western states may actually destabilize domestic politics as adoption ofWestern legal procedures and institutions becomes a point of domestic political contestation.Arguably, this is a small part of recent tensions in Egypt and Turkey, where the nature of consti-tutions and the notion of a secular state (domestic-level legal innovations that bear a familyrelation to the procedural architecture of the international legal system) have been contested.On this view, the commitment of quasi-states to the procedural architecture of the internationalsystem may be a long-term source of strain rather than strength. Further, the commitment ofquasi-states to a traditional or classical set of international legal procedures may be increasinglyat odds with the commitment of advanced industrial democracies to a more thickly multilateralset of procedures that creates space for innovations aimed at incorporating non-state actors.Finally, competence in basic international legal procedures does not necessarily entail thegenuine acceptance or internalization of those rules. Just because non-Western states generallyrecognize that they can further their interests by playing the game by existing rules, it does notnecessarily follow that they will forego future opportunities to change procedural rules in waysthat more closely mirror their interests and values (including cultural beliefs about legitimateways to make and interpret rules).

Ultimately, both the relevance of the existing procedural architecture of international law inan era of hybrid governance involving non-state actors and the net effect of increased cultural

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heterogeneity on the robustness of that architecture are empirical questions. Further, definitiveanswers to these questions are impossible because both trends are still unfolding. Even if thereis some uncertainty about the eventual outcomes of these trends, efforts to refine and update pro-cedural rules are relatively low-cost and are unlikely to cause harm. This suggests the appropri-ateness of modest diplomatic investments in avoiding what would be a highly consequentialnegative outcome. This is especially the case since erosion in the legitimacy of the proceduralarchitecture of international law can incrementally diminish the effectiveness of global govern-ance; the risk is not a binary, all-or-nothing matter.

Policy options for global leadership

The article concludes by briefly outlining the two central policy challenges associated with theprocedural foundations of the international legal system and suggesting some concrete waysCanada can play a leadership role in addressing them. The policy recommendations may seemambitious, particularly in the context of a challenging era for Canadian foreign policy definedby resource constraints. However, Canada has in the past played a constructive role in diffusingspecialized knowledge and in making international rules. Further, the mandate for this specialissue is to identify over-the-horizon global governance challenges and the policy options toaddress them.

The basic procedural underpinnings of international law are now relatively complete. This isdue in large part to the work of the ILC, which remains an underappreciated component of theUN system. It simultaneously plays a role in identifying and in shaping the subsequent develop-ment of international law across a broad range of important issues. There are, however, threecritical areas where more procedural international law remains to be written. First, as suggestedabove, there is significant potential benefit in the creation of a formal treaty along the lines of theILC Draft Articles on state responsibility. A formal treaty would place these rules on more certainfooting, reducing uncertainty about their content and also playing a key educative function bothfor states and for the broader public.

Second, in addition to codifying the law of state responsibility, there is a need to consider thecreation of entirely new procedural international law clarifying the rights and responsibilities ofvarious kinds of non-state actors in the creation, alteration, interpretation and application ofinternational law. Given the novelty of this topic and the reticence many states may feel aboutgiving up what has been a formal near-monopoly on these social functions and powers, this ques-tion is likely best addressed for the time being by the ILC. Such an approach allows for a relativelyapolitical environment to discuss these questions; while this is no guarantee of success, itenhances the prospects – especially to the extent key private and civil society actors can be con-sulted in the course of the ILC’s work.

Third, the ILC decided in 2011 to begin work on the topic of “formation and evidence of cus-tomary international law.” The traditional approach of identifying customary international lawaccording to patterns of state practice and the existence of opinio juris remains underdeveloped,leaving considerable scope for dispute as to the existence and content of customary rules. As such,this is an eminently appropriate topic for ILC consideration and one where successful work couldperform a considerable service to the international community. On 22 May 2012, a Special Rap-porteur for the topic was assigned. Initial work will be guided by “the approach followed by theInternational Court of Justice and its predecessor, the Permanent Court of International Justice,”and the ILC intends to produce “a set of ‘conclusions’ or ‘guidelines,’ with commentaries” ratherthan a draft convention due to “the need to preserve the degree of flexibility inherent in the cus-tomary process” (ILC 2012). These parameters represent a sensible starting point for an effort tofill a major gap in consensus on a basic procedural element of international law. The project

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demonstrates the continuing importance of the ILC in ensuring the basic rules of internationallaw continue to function effectively, in order to enable states (and potentially other actors) toreason collectively about how to formulate rules of global governance, how to alter those rules,how to interpret them and how to apply them to particular cases.

The problem of securing the legitimacy of procedural international law is broader than simplywriting more law. It is also vital to ensure that existing law is widely accepted as legitimate. Inparticular, it is critical to ensure the legitimacy of the procedural architecture of internationallaw, for three reasons: to allow the continued operation of legal discourses for the applicationof accepted rules to novel cases, to facilitate the forging of agreements on issue-specific bodiesof international law that remain contentious (such as human rights law and, more recently, inter-net governance) and, finally, as a necessary condition for the creation of new law that can reason-ably be expected to be internalized and adhered to.

Broadly, there are two fundamental challenges to the legitimacy of the procedural architecture ofinternational law. The first is a challenge against states in general for monopolizing the process ofinternational law creation, interpretation and application to the exclusion of civil society. Thesecond is against Western states in particular for imposing a system of international law rooted ina rule-making monoculture (or, at best, a dual culture based on the common and civil law traditions)on a world with a multiplicity of rule-making cultures. Addressing both challenges (and thus enhan-cing the legitimacy of the procedural foundations of international law) requires openness to revisingthe procedural rules of international law, or at least to a genuine dialogue that could potentially leadto such an outcome. Absent such a dialogue, the costs of maintaining and operating a law-basedsystem of global governance are likely to escalate over time as the international system becomesmore heterogeneous and as the geopolitical centre of gravity shifts toward states with non-Western rule-making traditions. This dialogue must be an ongoing process rather than a one-offplan to achieve a particular outcome; its purpose must be to foster and sustain broad agreementon legitimate practices for making and interpreting rules at the global level. It must therefore beseen as a basic infrastructure cost or a transaction cost, analogous to “the price of poker.”

No single state can solve these challenges unilaterally and solutions will not be created quickly.Accordingly, it is important to be modest and realistic about potential Canadian policy objectivesand contributions. Nevertheless, there are a number of concrete steps that could be taken at rela-tively modest short-term cost that have the potential to yield substantial long-term benefits. Thesesteps include measures aimed at both expanding procedural international law and securing itslegitimacy.

First, Canada could encourage the ILC to undertake work on the question of non-state actorrights and responsibilities in international law. If this work is undertaken, the terms of referencesshould be framed broadly and efforts should be made to ensure the process is inclusive of variouskinds of non-state actors. Second, Canada could play an important role in supporting the broaderwork of the ILC. This includes its potential work on non-state actors but also its work on cus-tomary international law and its draft articles on state responsibility. Such Canadian effortswould need to go beyond moral support. Special financial contributions could be made to theILC to support its work and staff could be seconded from the Department of Foreign Affairs,Trade and Development (DFATD).

The successful expansion of the procedural foundations of the international legal system isnot solely a matter of supporting the ILC. Canada can also contribute by supporting capacitybuilding in Less Developed Countries (LDCs). Such states typically lack extensive internationallegal resources; this translates to a lack of social competence in highly technical internationalnegotiations and international organizations. Canada has previously undertaken similar rolesin international contexts, for example in Track Two initiatives aimed at preventing conflict inthe South China Sea (Djalal and Townsend-Gault 1999).13

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This capacity building will be most effective if it is given a clear institutional home withinDFATD. This would entail the creation of a Directorate of Legal Training and Cooperation(DLTC). This recommendation directly parallels the existing Directorate of Military Trainingand Cooperation (DMTC) in the Department of National Defence (DND). The DTMC “developspolicy and implements training programs” that “expand and reinforce Canada’s bilateral defencerelations, while raising its national profile on the world stage.” It attempts to help partner statesimprove their “understanding of democratic control over the armed forces” and develop the“capacity to undertake multi-lateral peace support operations.” As such, it explicitly attemptsto diffuse particular norms and institutional forms. DND argues that the DMTC provides“great value for a minimal investment,” as trained states are “likely to cooperate with, andoffer the CF access to their country and their forces.” Further, “Canadian diplomatic and militaryrepresentatives find it considerably easier to gain access and exert influence in countries with acore group of Canadian-trained professional military leaders” (Department of NationalDefence 2013). A prospective DLTC would similarly aim to cultivate transnational relationshipsbetween government legal experts. By providing knowledge about the procedural foundations ofthe international legal system, in addition to other more issue-specific areas, the DLTC wouldenhance the ability of partner states to effectively participate in international negotiations andinternational organizations. Canada could also encourage other advanced industrial democraciesto expand or to create similar mechanisms.

Support of the ILC and enhancement of international legal capacity need not be undertakensolely with government resources. In addition, DFATD could marshal the resources of thebroader Canadian legal community. The policy role here is one of coordination. Such anapproach maximizes scarce resources and also enhances the legitimacy of international edu-cational efforts by leveraging the expertise of scholars and practitioners.14 A constellation of rel-evant professional associations exist, but they have not been focused on the fundamentalprocedural rules of the international legal system. Lawyers Without Borders works primarilyon human rights issues rather than on macro-level questions. Its service delivery model couldbe augmented with additional programming focused on capacity building. The Canadian BarAssociation is another potential partner, via its International Law section. Finally, the Canadianbranch of the International Law Association (ILA) could facilitate the involvement of Canadianscholars and practitioners and also engage the ILA at the global level. The ILA’s committee struc-ture does not currently include a committee examining basic procedural questions (CanadianBranch of the International Law Association 2013). The creation of such a committee could beproposed through, and potentially organized by, the Canadian branch. It would play a helpfulrole by engaging international law scholars consistently and directly on these foundational ques-tions and by facilitating dialogue between scholars and practitioners.

Finally, Canadian universities and law schools have an important role to play as centers oflearning and as organizations with substantial capacity for diffusing knowledge.15 Canadian scho-lars have played key roles in the development of directly relevant scholarly literatures. Brunneeand Toope (2010) have shed light on the link between social processes and legitimacy in thelegal realm. Canadian scholars have also made important contributions to the study of federalismand intergovernmental relations (Cameron 2001, 2009, Cameron and Simeon 2002, Simeon2001, 2009, Murray and Simeon 2007), as well as to the study of multiculturalism (Kymlicka1995, 2001). These literatures deal with the complexities inherent in managing political relationsbetween distinct communities and have implications for the creation of procedural rules; theanalogy between domestic constitutions and procedural rules of international law should notbe overdrawn, but is also not entirely without merit.

The above measures could facilitate the expansion of procedural international law andthereby ensure its continued capacity to structure contemporary global governance. They also

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potentially contribute to ensuring the legitimacy of the international legal system. At one level, thechallenge from non-Western states stems from a conviction that their relative lack of expertise ininternational legal rules constitutes a substantial disadvantage in diplomacy. Redressing this gapin social competence may reduce the urgency of proposals for alteration of the procedural rules ofinternational law. More fundamentally, however, building international legal capacity in non-Western states will not make existing procedural rules more inclusive of distinct cultures ofrule-making. For this reason, attempts to bolster the procedural foundations of internationallaw must not take the form of one-way transmission of knowledge. They must be characterizednot by attempts at socialization (Johnston 2001), norm transmission (Finnemore 1996) or stra-tegic social construction (Finnemore and Sikkink 1998) but rather by more open-ended attemptsat collective decision-making along the lines envisioned by the constructivist literature on Haber-masian persuasion (Risse 2000, Crawford 2002, Muller 2004). While an educative component isimportant to build capacity and diffuse social competence in the operation of the procedural rulesof international law, there must also be a concerted effort to incorporate the views of states withdistinct cultures of rule-making and interpretation. Such accommodation will be critical to thefuture legitimacy of the procedural foundations of international law.

Canada possesses the capabilities to play a constructive role in such a dialogue. Further,ensuring the operability of the procedural rules of international law is a vital interest forCanada. These rules are instrumental to the continuing conduct of global governance as wellas to the possibility of augmenting global governance on new issue areas. The procedural difficul-ties encountered at the WCIT illustrate the potential for fundamental breakdowns of this natureand their impacts on prospects for global governance. Without sustained attention, the likelihoodis that such difficulties will only worsen over time.

AcknowledgementsThe author thanks the editorial team and the anonymous reviewers for their helpful comments.

Notes1. Practices, here, refers to the notion of practice developed by Adler, E. and Pouliot, V. 2011. Inter-

national Practices. International Theory, 3(1), 1-36. The notion of rule-sets establishing conditionsof rule was famously articulated by Onuf, N. G., 1989. World of Our Making: Rules and Rule in Inter-national Relations. Columbia, S.C.: University of South Carolina Press.

2. The legalization of international relations in general, especially over the last century, has been noted by:Reus-Smit, C., 1999. The Moral Purpose of the State: Culture, Social Identity, and Institutional Ration-ality in International Relations. Princeton, N.J.: Princeton University Press, Bukovansky, M., 2002.Legitimacy and Power Politics: The American and French Revolutions in International Political Culture.Princeton, N.J.: Princeton University Press. Legalization was also the subject of a special issue of Inter-national Organization. See Abbott, K. W., et al. 2000. The Concept of Legalization. InternationalOrganization, 54(3), 401-419.

3. On forms of soft law, see Abbott, K. W. and Snidal, D. Ibid.Hard and Soft Law in International Gov-ernance. 421-456. The view of international law I have in mind here owes a great deal to Brunnee,J. and Toope, S. J., 2010. Legitimacy and Legality in International Law: An Interactional Account. Cam-bridge, U.K.: Cambridge University Press.

4. For a rare case in which a non-Western state embraced European rule-making procedures, see the dis-cussion of Japan in Suzuki, S., 2009. Civilization and Empire: China and Japan’s Encounter with Euro-pean International Society. London, U.K.: Routledge.

5. This phrase belongs to John Ruggie. Ruggie, J. G., 1998. What Makes the World Hang Together? Neo-utilitarianism and the Social Constructivist Challenge. Constructing the World Polity: Essays on Inter-national Institutionalization. New York, N.Y.: Routledge.

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6. On the different implications of coordination and cooperation games for international cooperation,see Martin, L.L. and Simmons, B.A. 1998. Theories and Empirical Studies of International Institutions.International Organization, 52(4), 729-757.

7. Several papers in this volume also demonstrate the involvement of non-state actors in foreign policyissues. See Gordon, D. 2013. Between Local Innovation and Global Impact: Cities, Networks and theGovernance of Climate Change. Canadian Foreign Policy Journal, 19(3); Chaloux, A. 2013. WaterResource Management and North American Green Paradiplomacy. Canadian Foreign Policy Journal19(3); and Grant, A. 2013. Consensus Dynamics and Global Governance Frameworks: Insightsfrom the Kimberley Process on Conflict Diamonds. Canadian Foreign Policy Journal 19(3).

8. Locke, J., 1988. Two Treatises of Government. Cambridge: Cambridge University Press. See, especially, Ch.VII of the Second Treatise, S.90, p. 326. According to Locke, the point of civil society is avoiding situationsin which every man is judge in his own case. This is accomplished by erecting an authority to which allappeal; such an authority is the sign that people are no longer in the State of Nature. By this standard, theargument could be made that the procedural rules of international law collectively constitute such anauthority and that the international system is, in Lockean terms, no longer in the State of Nature.

9. On the emergence of multilateral treaty making as a social practice in international politics, and on thegrowth in number of multilateral treaties over time, see Denemark, R.A. and Hoffmann, M.J. 2008.Just Scraps of Paper? The Dynamics of Multilateral Treaty-Making. Cooperation and Conflict:Journal of the Nordic International Studies Association, 43(2), 185-219.

10. Articles 57 and 58 deal briefly with responsibility on the part of non-state actors, but not in a systematicor comprehensive manner.

11. There are also internal tensions and important gaps within the procedural architecture of the inter-national legal system that could compromise the effectiveness of this system over time. However,internal tensions and gaps within systems of rules are not unique to the international legal system,and major rule systems often display considerable robustness in the face of such concerns. Accord-ingly, these internal tensions in the procedural architecture of international law are an importantarea for future research, but are outside the scope of this paper. Thanks to an anonymous reviewerfor suggesting this point.

12. The argument here is essentially that what John Ruggie referred to as “thick multilateralism” has beendiffused widely throughout the international system. See Ruggie, J. G. 1992. Multilateralism: TheAnatomy of an Institution. International Organization, 46(3), 561-598.

13. Thanks to James Manicom for suggesting this example.14. The epistemic communities literature is helpful on this point. See, for example, Haas, P. M. 1992.

Introduction: Epistemic Communities and International Policy Coordination. International Organiz-ation, 46(1), 1-35.

15. On this point, see the paper by Felix Grenier in this volume. Grenier, F. 2013. The Global EducationalChallenge: How Canada Can Contribute to Global Developmental Solutions through Innovation inHigher Education. Canadian Foreign Policy Journal, 19(3).

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