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international law, constitutional law, foreign relations, strategic behavior

Subject Categories

Conflict of Laws | Constitutional Law | International Law | Law


Traditional accounts in both the international law and international relations literature largely assume that great powers like the United States enter into international legal commitments in order to resolve global cooperative problems or to advance objective state interests. Contrary to these accounts, this Article suggests that an incumbent regime (or partisan elites within the regime) may often seek to use international legal commitments to overcome domestic obstacles to their narrow policy and electoral objectives. In this picture, an incumbent regime may deploy international law to expand the geographical scope of political conflict across borders in order to isolate the domestic political opposition and increase the influence of foreign groups or governments sympathetic to the regime's objectives. The political opposition may in turn seek to exploit the existence of a fragmented system of domestic institutions to thwart both the adoption and enforcement of any international law that strengthens the ruling regime and weakens its own position. Finally, this Article sketches a framework for predicting when distributive international legal commitments are likely to be sustainable across electoral cycles and when they are not. More specifically, the framework suggests that an international legal commitment is likely to be electorally sustainable when the veil of ignorance underlying the commitment is sufficiently thick; in other words, an international commitment entered into by a partisan regime has more staying power if it produces policy outcomes that are favored by some salient groups in the political opposition. The Article uses examples from the United States experience with human rights and international trade to illustrate how partisan dynamics between Republicans and Democrats has helped spawn and restrict the scope of international legal commitments.