Volume 2, Spring 2022, Issue 2
TWO LOGICS, TWO SYSTEMS: THE EFFECTS OF INTERNATIONAL CRIMINAL JUSTICE THROUGH A BEHAVIORAL ECONOMIC LENS
Peer-Reviewed Article
Peter R. Grenzow
A key question in the study of international criminal justice is what effects international prosecutions have on individuals’ decisions to violate international criminal law (ICL). The literature has historically analyzed the effects of international prosecutions on individual decision-making through either the rationalist Logic of Expected Consequences (LEC) or the norms-based Logic of Appropriateness (LOA). However, such work has suffered from theoretical underdevelopment, with scholars largely failing to account for the insights of behavioral economics in their formulations of decision-making in response to prosecutions. This article fills this gap by analyzing the effects of international prosecutions with reference to the two systems of human cognition developed by behavioral economics: the unconscious System 1, with its various heuristics and biases, and the conscious System 2, underlying rational judgment. The article formalizes individuals’ rational judgments in response to international prosecutions and discusses how Bayesian learning theory and prospect theory may modify the assumptions of the rational-choice model. The article then discusses how the heuristics and biases of individuals’ System 1 alter the rational judgments of System 2 in many situations. While this article provides a more refined account of individual judgment and decision-making in response to international prosecutions, it invites pessimism concerning the ability to develop generalizations about the consequences of international prosecutions. Considering these findings, prosecutors should analyze the complex and idiosyncratic psychology of the targets of their prosecutions to better understand how individuals may react to their legal actions and promote ICL’s purpose of preventing crime.
THE NONPROLIFERATION CORPUS JURIS: A COHERENT APPROACH TO THE INEFFICIENCIES OF NUCLEAR NONPROLIFERATION LAW
Peer-Reviewed Article
Rohan Mishra
It is largely undisputed among international legal scholars and policymakers that the Treaty on the Nonproliferation of Nuclear Weapons (“NPT”) has improved international security since entering into force in 1970. Nonetheless, the nuclear nonproliferation regime—the collection of laws, agreements, institutions, and cooperative efforts established to counter the spread of nuclear weapons—contends with inefficiencies akin to the diseconomies of scale that affect firms in microeconomics theory. In this regard, the international community faces a paradoxical situation with respect to nonproliferation—the nonproliferation regime is both effective yet inadequate, and necessary yet fragile. How might international and domestic laws and policies align to ensure that the regime does not regress in light of the enforcement, geopolitical, and technological challenges that it faces?
This Article argues that the long-term viability of the nonproliferation regime depends on the capacity of policymakers and legislators to identify and redress a foundational miscommunication between members of the international community regarding the primary objectives of the regime. This Article addresses this “original miscommunication” through a system-level analysis designed to evaluate the linkages between the myriad sources of nonproliferation law. Based on this analysis, this Article identifies three coordination inefficiencies resulting from the regime’s original miscommunication: (1) divergence between the bilateral and multilateral levels of nonproliferation law; (2) poorly calibrated treaties; and (3) a suboptimal enforcement environment. By signaling the importance of developing a coherent approach to these inefficiencies, this Article seeks to promote improved policy outcomes and to enable future nonproliferation laws to serve as platforms to develop a unified approach to the core objectives of the regime.
SOMALILAND: AN INJUSTICE PERPETUATED
Student Note
Bruce Beckman
The Republic of Somaliland announced its independence in 1991, and despite the fact that it established stability in an otherwise unstable region, its independence has gone unrecognized by the international community. While other surrounding East African states have had their independence recognized and respected by the international community (both before and after the formation of the Republic of Somaliland), Somaliland has not been afforded the same treatment. While ostensibly defensible, the international community’s reasoning for not recognizing Somaliland is unjust. This article will argue that two specific tenets of international law support Somaliland’s independence. Somaliland’s independence is supported by the theory of dissolution and succession. By understanding Somaliland’s history and formation compared to other East African countries whose independence has been recognized by the international community as a whole in combination with the theories of dissolution and succession in international law, it becomes clear that it is unjust to withhold from Somaliland its right to recognition.