John Setear

Can Legalization Last?: Whaling and the Durability of National (Executive) Discretion

PUBLISHER
Virginia Journal of International Law
DATE
2004
 

Abstract

Legal academics and international-relations scholars have recently undertaken a great deal of interdisciplinary work on the interaction of international law and world politics. One framework for such analysis, developed at length in the Summer 2000 issue of International Organization, emphasizes three characteristics of legalization: (1) degree of formal legal obligation, (2) precision of rules, and (3) amount of authority delegated to a neutral, non-state decision-maker.

International whaling reflects a high-high-low configuration of these three variables, respectively. Most analyses of legalization ignore this configuration of variables despite its pervasiveness.

An examination of the whaling regime shows that the high-high-low configuration of variables has been highly stable, despite dramatic changes in a wide variety of other variables in the whaling regime (such as membership, breadth of regulation, and the stringency of regulation) and pressure in the US (involving both litigation and legislative action) to move towards a higher-delegation regime. The pervasiveness and stability of the high-high-low configuration in the face of these changes and pressures argues for much closer attention to this form of legalization by scholars. Given the amount of power that this form of legalization grants to the national executive, the stability of the high-high-low configuration for an international legal regime also implies that executive branches will retain a near-monopoly on policy-making in regimes that initially display this configuration.

Citation

John K. Setear, Can Legalization Last?: Whaling and the Durability of National (Executive) Discretion, 44 Virginia Journal of International Law 711-757 (2004).
 

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