Melissa J. Durkee

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Private actors interpret legal norms, a phenomenon I call “interpretive entrepreneurship.” The phenomenon is particularly significant in the international context, where many disputes are not subject to judicial resolution and there is no official system of precedent. Interpretation can affect the meaning of laws over time. For this reason, it can be a form of “post hoc” international lawmaking, worth studying alongside other forms of international lobbying and norm entrepreneurship by private actors. The Article identifies and describes the phenomenon through a series of case studies that show how, why, and by whom it unfolds. The examples focus on entrepreneurial activity by business actors and cast a wide net, examining aircraft finance, space mining, modern slavery, and investment law. As a matter of theory, this process-based account suggests that international legal interpretation involves contests for meaning among diverse groups of actors, giving credence to critical and constructivist views of international legal interpretation. As a practical matter, the case studies show that interpretive entrepreneurship is an influence tool and a driver of legal change.

Introduction

Uber is a “disruptor.”¹ 1.Clayton M. Christensen, Michael E. Raynor & Rory McDonald, What Is Disruptive Innovation?, Harv. Bus. Rev., Dec. 2015, https://hbr.org/2015/12/what-is-disruptive-innovation [https://perma.cc/S84Z-8RE5] (“‘Disruption’ describes a process whereby a smaller company with fewer resources is able to successfully challenge established incumbent businesses.”); see alsoAndré Spicer, Disruptor Has Become a Dirty Word. And Not Just When Applied to Donald Trump, The Guardian, (June 11, 2019),https://www.theguardian.com/‌commentisfree/2019/jun/11/disruptor-dirty-word-donald-trump-scientists-engineers [https://perma.cc/P34D-HGY5] (“Now being [a] ‘disruptor’ is a positive. Entrepreneurs such as Elon Musk are lauded when they seek to ‘disrupt’ established industries . . . .”).Show More While the term generally refers to disruption of a business model, Uber’s disruption extends to the law.² 2.SeeElizabeth Pollman & Jordan M. Barry, Regulatory Entrepreneurship, 90 S. Cal. L. Rev. 383, 398 n.63 (2017) (describing how Uber relied on changing the law as part of its business plan).Show More Rather than submit to the restrictive rules of the taxicab industry, Uber read itself out of them, relying on its own aggressive legal interpretations to justify its plans.³ 3.Id.Show More It then launched its business, entrenched itself in popular culture, gathered political power, and became “too big to ban.”⁴ 4.Id. at 401–02.Show More Uber’s success in defining itself out of taxicab regulations is a high profile example of a phenomenon I call “interpretive entrepreneurship.”⁵ 5.While Uber’s interpretations have often been successful in the United States, these results have not consistently been replicated elsewhere. See, e.g., Case C-434/15, Asociación Profesional Elite Taxi v. Uber Sys. Spain SL, ECLI:EU:C:2017:981 (Dec. 20, 2017) (defining Uber as a “service in the field of transport” under European Union Law and thus subject to normal regulation as a taxi). This observation builds on and departs from an account developed by Elizabeth Pollman and Jordan Barry, who define “regulatory entrepreneurship” as “[w]ell-funded, scalable, and highly connected startup businesses” who “target state and local laws and litigate them in the political sphere instead of in court.” Pollman & Barry, supra note 2, at 383. This Article identifies Pollman and Barry’s legal disruption as one mode of entrepreneurial interpretation.Show More

Interpretive entrepreneurship is the act of developing the law by interpreting it. Interpretive entrepreneurs might exploit legal uncertainty to pursue business plans, as Uber did, and change the regulatory environment along the way.⁶ 6.Seediscussion infraSubsection II.A.1.Show More Or they may shop around favorable interpretations to regulators, or publicize reputation-friendly interpretations to investors and the public.⁷ 7.Seediscussion infraSubsection II.A.2.Show More Through each mode, interpretive entrepreneurs seek to influence legal development.⁸ 8.Seediscussion infra Section II.C.Show More A more familiar way to think about private sector influence over legal development is through the lobbying that surrounds new lawmaking efforts.⁹ 9.See, e.g., William N. Eskridge, Jr., Federal Lobbying Regulation: History Through 1954, in The Lobbying Manual 5 (William V. Luneburg, Thomas M. Susman & Rebecca H. Gordon eds., 4th ed. 2009) (history of U.S. federal lobbying laws); Samuel Issacharoff, On Political Corruption, 124 Harv. L. Rev. 118, 121, 134–42 (2010) (reviewing efforts to redress the “financial vulnerabilities of democracy,” including through campaign-finance reform efforts); Thomas M. Susman & William V. Luneburg, History of Lobbying Disclosure Reform Proposals Since 1955, in The Lobbying Manual, supra, at 23 (history of U.S. federal lobbying reform proposals).Show More Interpretive entrepreneurship is the ex post companion to these ex ante lobbying efforts. While legal scholarship has focused on the ex ante lobbying,¹⁰ 10.See, e.g., Heather K. Gerken & Alex Tausanovitch, A Public Finance Model for Lobbying: Lobbying, Campaign Finance, and the Privatization of Democracy, 13 Election L.J. 75, 87–90 (2014) (proposing reforms that would subsidize lobbying activity by public interest groups); Richard L. Hasen, Lobbying, Rent-Seeking, and the Constitution, 64 Stan. L. Rev. 191, 226–36 (2012) (proposing a “national economic welfare” rationale for lobbying regulation); Maggie McKinley, Lobbying and the Petition Clause, 68 Stan. L. Rev. 1131, 1199 (2016) (asserting that current lobbying regulation and practice violates the First Amendment’s Petition Clause); Zephyr Teachout, The Forgotten Law of Lobbying, 13 Election L.J. 4, 6 (2014) (noting that the scope of the constitutional lobbying right is unclear).Show More the ex post interpretative role is underappreciated. As this Article shows, both activities deserve attention.

To sharpen the account and clarify the stakes, the Article makes two framing choices. First, while many actors can participate in legal interpretation, the Article focuses on interpretive entrepreneurship by business actors. This choice directs attention to the fact that some of the same actors may participate in both lobbying and interpretation as separate portions of a unified influence campaign to advance business agendas.¹¹ 11.See, e.g., discussion infra Subsection II.A.1 (describing how industry efforts to develop the Cape Town Convention on International Interests in Mobile Equipment began at the drafting stage and continue with efforts on implementation, interpretation, and compliance).Show More Second, the Article focuses its account on interpretation of international legal norms. While interpretive entrepreneurship may take place at any level of legal ordering, from the municipal to the international, interpretive entrepreneurship is particularly significant as a transnational phenomenon.¹² 12.Consider the problem of interpretation in the international context. For example, the key operative provision of the Paris Agreement on climate change provides that “[e]ach Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions.” Paris Agreement art. 4, ¶ 2, Dec. 12, 2015, T.I.A.S. No. 16-1104 (emphasis added). What is the meaning of the italicized portion? Have parties obligated themselves to engage in mitigation measures? For a careful defense of this interpretation, see Daniel Bodansky, Jutta Brunée & Lavanya Rajamani, International Climate Change Law 231 (2017) (arguing that the imperative “shall” relates both to the national contributions and the pursuit of mitigation measures). Or have parties merely committed to “pursuing” measures, with no obligation to actually carry them out? See, e.g., Richard Falk, “Voluntary” International Law and the Paris Agreement, Commentary on Global Issues (Jan. 16, 2016), https://richardfalk.wordpress.com/2016/01/16/voluntary-international-law-and-the-paris-agreement/ [https://perma.cc/ZTH6-C3UV] (arguing that the Paris Agreement is “voluntary” international law with no binding commitments). Which reading is best? Which is law? The Paris Agreement does not designate any international court or tribunal as a neutral arbitrator of disputes. Even if it had done so, international law has no official system of precedent to carry one tribunal’s interpretation forward with the force of law. See Harlan Grant Cohen, Theorizing Precedent in International Law, in Interpretation in International Law268, 269 (Andrea Bianchi, Daniel Peat & Matthew Windsor eds., 2015) [hereinafter Cohen, Theorizing Precedent].In the United States, federal courts will interpret treaties, deferring in some instances to the executive branch. Curtis A. Bradley & Jack L. Goldsmith, Presidential Control over International Law, 131 Harv. L. Rev. 1201, 1204 (2018) (observing that “Presidents . . . have come to dominate the creation, alteration, and termination of international law for the United States”); see also Restatement (Third) of the Foreign Relations Law of the United States § 326(2) (Am. L. Inst. 1986) (noting that courts “give great weight to an interpretation made by the Executive Branch”). But many treaties do not offer private rights and so their meanings are not litigated in the United States. See id. § 907 cmt. a (“International agreements . . . generally do not create private rights or provide for a private cause of action in domestic courts . . . .”); see also United States v. Emuegbunam, 268 F.3d 377, 389 (6th Cir. 2001) (“As a general rule, however, international treaties do not create rights that are privately enforceable in the federal courts.”). Even if they are litigated in the United States, the interpretation produced by a U.S. court is just one competing interpretation on the international stage. Treaty meaning is not often litigated before international tribunals like the International Court of Justice. See Eric A. Posner, The Decline of the International Court of Justice 5 (Univ. Chi. John M. Olin L. & Econ., Working Paper No. 233, 2004), https://chicagounbound.‌uchicago.edu/cgi/viewcontent.cgi?article=1499&context=law_and_economics [https://perma.cc/77P8-RYK3] (noting that states frequently refuse to submit to the jurisdiction of the International Court of Justice).Show More This is due to the growing importance of transnational commerce combined with the lack of courts with general jurisdiction and a system of precedent on the international level.¹³ 13.Cohen, Theorizing Precedent, supranote 12, at 268, 269–70 (“International law today . . . generally denies international precedents doctrinal force.”); see also sources cited infra Section I.A. (developing these points).Show More

Conventional accounts of international legal interpretation focus on interpretive doctrine rather than on the process of interpretation and the multiplicity of actors involved.¹⁴ 14.Daniel Peat & Matthew Windsor, Playing the Game of Interpretation: On Meaning and Metaphor in International Law, in Interpretation in International Law, supra note 12, at 3, 3–4, 8 (identifying these gaps and setting out to remedy this shortcoming by “highlight[ing] the practice and process of interpretation as well as the professional identity of those involved”); see also James Crawford, Foreword toInterpretation in International Law, supranote 12, at v, v (“Legal scholarship has tended to tackle the issue of interpretation either from an abstract, quasi-philosophical perspective, or by focusing on the Vienna Convention on the Law of Treaties . . . .”).Show More But related literatures show that interpretive participants and processes matter. For example, debates in the United States concern which questions are too “political” for the judiciary to resolve, and which branch of government is best suited to decide matters of foreign affairs.¹⁵ 15.SeeJesse H. Choper, Introduction to The Political Question Doctrine and The Supreme Court of the United States 1, 1–2 (Nada Mourtada-Sabbah & Bruce E. Cain eds., 2007) (outlining debates about the political question doctrine); Bradley & Goldsmith, supranote 12, at 1252–56 (examining consequences of presidential control over international lawmaking and interpretation).Show More They rest on the assumption that the interpreter and the forum can affect the outcome.

The Article directs attention to processes of international legal interpretation, and particularly to private sector influences in that process. It relies on the socio-legal method of grounding theoretical insights in descriptive analysis.¹⁶ 16.The approach places this Article within the “empirical turn” in international legal scholarship, which focuses on “midrange theorizing,” or building theory from the study of facts. Gregory Shaffer & Tom Ginsburg, The Empirical Turn in International Legal Scholarship, 106 Am. J. Int’l L. 1, 1 (2012).Show More Its analysis suggests that business entities are involved in a potentially vast amount of international interpretive activity which helps shape the development of international legal norms.

The Article makes three principal contributions. First, it describes and analyzes the interpretive entrepreneurship phenomenon through a collection of case studies relating to diverse areas of public and private international law.¹⁷ 17.SeeinfraSections II.A & B.Show More The case studies are based on both original research and a cross-disciplinary literature review. They cast a wide net, ranging from aircraft financing¹⁸ 18.Seeinfra Subsection II.A.1.Show More to the meaning of “modern slavery”¹⁹ 19.Seeinfra Subsection II.A.4.Show More for the purpose of supply chain due diligence. They address private sector interpretations in trade and investment law²⁰ 20.Seeinfra Subsection II.A.3 & Section II.B.Show More as well as the Outer Space Treaty’s application to commercial mining.²¹ 21.SeeinfraSubsection II.A.2.Show More

The case studies show how, why, and by whom interpretive entrepreneurship unfolds.²² 22.For all the points in this paragraph, see thediscussion in Section II.C.Show More The methods of interpretation are both formal and informal; they are sometimes facilitated by the apparatus of the state, and sometimes take place in purely private fora. Targets of persuasive campaigns, the “audiences” for these private sector interpretations, can be state parties to a treaty, domestic courts or international tribunals, subnational regulators, shareholders, or the public. The case studies show that private actors can engage in interpretive entrepreneurship for a variety of purposes, including to entrench commerce-friendly interpretations, forestall regulation, secure reputational benefits, or demonstrate compliance.

The Article’s second contribution is to show how the interpretive entrepreneurship phenomenon contributes to and re-frames existing debates on international legal interpretation. Many debates focus on interpretive rules found in the Vienna Convention on the Law of Treaties (“VCLT” or Vienna Convention),²³ 23.Vienna Convention on the Law of Treaties arts. 31–33, opened for signature May 23, 1969, 1155 U.N.T.S. 331; see, e.g., Duncan B. Hollis, The Existential Function of Interpretation in International Law, in Interpretation in International Law, supra note 12, at 78, 80 (“Conventional wisdom focuses almost entirely on . . . a single interpretive method—Articles 31 and 32 of the VCLT.”); Peat & Windsor, supranote 14, at 4 (noting that the “state of play” when it comes to interpretation in international legal scholarship and practice “is characterized by a myopic focus on the rules of treaty interpretation in Articles 31–33 of the VCLT”).Show More and on the best methods to apply those rules.²⁴ 24.As any international lawyer can explain, the Vienna Convention rules instruct that treaties should be “interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.” Vienna Convention on the Law of Treaties, supra note 23, at art. 31, ¶ 1. The vast majority of legal scholarship on international legal interpretation addresses the proper use of these rules. Seediscussion infraSubsection I.B.1. Their apparent simplicity masks myriad questions, which have spawned a variety of interpretive approaches, including textualism, purposivism, and a teleological approach, among others. SeeHollis, supra note 23, at 81 (noting that “proponents of different interpretive methods claim that the VCLT accommodates, or privileges, their method”).Show More A “retrievalist” view suggests that applying the rules correctly will produce a correct interpretation.²⁵ 25.Joseph Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason 241–64 (2009) (“Interpretation is therefore often thought to be retrieval, a process of retrieving and elucidating the meaning the original has.”).Show More But the Vienna Convention rules themselves require interpretation,²⁶ 26.SeeHollis, supra note 23, at 84 (noting that the VCLT rules themselves require interpretation); see alsoJohn Tobin, Seeking to Persuade: A Constructive Approach to Human Rights Treaty Interpretation, 23 Harv. Hum. Rts. J. 1, 3 (2010) (“[The Vienna Convention] is ultimately unable to resolve the question of how to choose a meaning . . . from among the inevitable range of potential meanings.”).Indeed, twentieth century American legal realists observed that all law might be indeterminate. See, e.g., Karl Lewellyn, Some Realism About Realism—Responding to Dean Pound, 44 Harv. L. Rev. 1222, 1237 (1931) (arguing that one of the hallmarks of realism is “distrust of the theory that traditional prescriptive rule-formulations are the heavily operative factor in producing court decisions”); Felix S. Cohen, Transcendental Nonsense and the Functional Approach,35 Colum. L. Rev. 809, 843 (1935) (“A truly realistic theory of judicial decisions must conceive every decision as . . . a product of social determinants and an index of social consequences.”); see alsoH.L.A. Hart, The Concept of Law 204(2d ed. 1994) (“[T]he open texture of law leaves a vast field for creative activity which some call legislative.”).Show More and critical theorists reject the formalist project as blinkered, observing that legal interpretation is infused with ideology and reflects and embeds power.²⁷ 27.See, e.g., Phillip Allott, Interpretation—An Exact Art, in Interpretation in International Law, supranote 12, at 373, 375 (noting that “[t]o anyone who knows anything about . . . epistemology” the idea that treaties have meaning “may seem comical in its naivety”); Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument 8 (2006) (“Meaning is not . . . present in the expression itself.”); Ian Johnstone, Introduction, 102 Am. Soc’y Int’l L. Proc. 411, 411 (2008) (noting debates over whether interpreters are “making law, based on values and policy choices”); see alsoNote,’Round and ‘Round the Bramble Bush: From Legal Realism to Critical Legal Scholarship,95 Harv. L. Rev. 1669, 1678 (1982) (noting that critical scholars recognize the “historical contingency of law” and doctrinal first principles “represent mere choices of one set of values over another”); discussion infraSubsection I.B.2 (developing these points).Show More A third, “constructivist,” approach proposes that interpretation is necessarily a creative process, as interpreters use various tools to try to persuade others within interpretive communities.²⁸ 28.Crawford, supra note 14, at v (“[I]nternational lawyers think that their interpretations are right, and they play the game [of interpretation] by trying to convince others of this.”). The term “constructivist” is appropriate here because the term “epistemic community” arose out of constructivist international relations theory. Michael Waibel, Interpretive Communities in International Law, in Interpretation in International Law, supranote 12, at147, 149.Show More Interpretation is a contest, a game, or a staging ground for bargaining.²⁹ 29.SeeWaibel, supra note 28, at 148 (calling interpretation a “contest”); Crawford, supra note 14, at v (calling interpretation a “game”); Andrea Bianchi, The Game of Interpretation in International Law: The Players, the Cards, and Why the Game is Worth the Candle, in Interpretation in International Law, supra note12,at34, 34 (calling interpretation a “game”); Yanbai Andrea Wang, The Dynamism of Treaties, 78 Md. L. Rev. 828, 837 (2019) (calling treaties “departure points for further bargaining”).Show More This Article re-focuses these debates, showing how, for each of the dominant theoretical approaches to international legal interpretation, the process of interpretation has real stakes. It also gives credence to critical and constructivist understandings that the identity of the interpreter matters to the interpretation.

Third, the Article frames these interpretive processes as a form of post hoc lawmaking,³⁰ 30.Seeinfra Part III.Show More which develop the meaning of laws over time. The phenomenon is worth studying alongside activities like lobbying and agency capture that exert pressure on lawmaking ex ante.³¹ 31.SeeEyal Benvenisti, Exit and Voice in the Age of Globalization, 98 Mich. L. Rev. 167, 170–71 (1999) (conceiving of the sovereign state as an agent of small interest groups); Rachel Brewster, The Domestic Origins of International Agreements, 44 Va. J. Int’l L. 501, 539 (2004) (noting that governments make international agreements in response to domestic needs); Melissa J. Durkee, International Lobbying Law, 127 Yale L.J. 1742, 1747 (2018) (describing the “quotidian reality of international lobbying”). The fact that international lawmakers face pressures from domestic constituencies has long been a matter of interest within international relations. See, e.g.,Andrew Moravcsik, Taking Preferences Seriously: A Liberal Theory of International Politics, 51 Int’l Org. 513, 518 (1997) (arguing that in liberal international relations theory, domestic constituencies construct state interests); Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 Int’l Org. 427, 433–34 (1988) (theorizing that the negotiating behavior of national leaders reflects the dual and simultaneous pressures of international and domestic political games).Show More The project therefore contributes to literatures that investigate how multinational entities wield their power to shape international law.³² 32.These conversations are playing out in multiple disciplines. See, e.g., John Braithwaite & Peter Drahos, Global Business Regulation 5–7, 27–33 (2000) (sociology); Walter Mattli & Ngaire Woods, Introduction to The Politics of Global Regulation, at ix, x–xii (Walter Mattli & Ngaire Woods eds., 2009) (political science); A. Claire Cutler, Virginia Haufler & Tony Porter, Private Authority and International Affairs, in Private Authority and International Affairs 3, 4 (A. Claire Cutler, Virginia Haufler & Tony Porter eds., 1999) (international relations); Tim Büthe & Walter Mattli, The New Global Rulers: The Privatization of Regulation in the World Economy 5 (2011) (law); Joshua Barkan, Corporate Sovereignty: Law and Government Under Capitalism 8–14 (2013) (political geography).Show More It is also in conversation with a literature that explores the role of “regulatory intermediaries” in developing international law,³³ 33.Kenneth W. Abbott, David Levi-Faur & Duncan Snidal, Theorizing Regulatory Intermediaries: The RIT Model, 670 Annals Am. Acad. Pol. & Soc. Sci. 14 (2017). This literature seeks to understand how “state actors, private organizations, and civil society actors mediate the meaning of legal rules in regulatory governance arrangements that they participate in.” Shauhin Talesh, Rule-Intermediaries in Action: How State and Business Stakeholders Influence the Meaning of Consumer Rights in Regulatory Governance Arrangements, 37 Law & Pol’y 1, 2 (2015).Show More and a literature that conceives of international law as the product of “norm cascades” produced in part by norm entrepreneurs.³⁴ 34.Martha Finnemore & Katheryn Sikkink, International Norm Dynamics and Political Change, 52 Int’l Org. 887, 893 (1998) (introducing the idea that norms “cascade” through an international system after a sufficient number of states adopt the norm; advocacy groups can help initiate this process by serving as “norm entrepreneurs”). The “norm cascade” literature has focused on advocacy groups, id., rather than private sector norm entrepreneurs, and has focused on the role of non-governmental organizations in the emergence of a norm rather than the interpretation of that norm once a treaty has been adopted. See Heidi Nichols Hadad, After the Norm Cascade: NGO Mission Expansion and the Coalition for the International Criminal Court, 19 Glob. Governance 187, 187 (2013) (noting the assumption that “NGOs exercise their greatest impact on norm change during the early stages of norm emergence”).Show More Understanding interpretive entrepreneurship as one way private actors influence the law clarifies the practice of international legal interpretation, helps evaluate its effects on the legitimacy and effectiveness of international law, and develops a foundation for potential reforms.

The practical context is important. Despite existential global threats like climate change, the risk of pandemic, and regional conflicts, the early twenty-first century is not an era of multilateral lawmaking. Rather, the tools at hand are principally the laws on the books. As the Article shows, because interpretation can develop those laws over time,³⁵ 35.Rahim Moloo, Changing Times, Changing Obligations? The Interpretation of Treaties Over Time, 106 Am. Soc’y Int’l L. Proc. 261, 261, 264 (2012) [hereinafter Moloo, Changing Times?] (noting that while treaties are hard to amend, treaty interpretation can adapt treaties to changing circumstances).Show More they attract contests for meaning by those who would develop or erode them. Interpretive entrepreneurship can drive legal change.

Part I develops the argument that a process-based account of international legal interpretation has both theoretical and practical salience. Part II describes the interpretive entrepreneurship phenomenon through a series of case studies and organizes and analyzes this activity. Part III characterizes interpretive entrepreneurship as post hoc lawmaking and identifies its implications.

1. * Allen Post Professor of Law, University of Georgia. Thanks to Erez Aloni, Julian Arato, Martin Bjorkland, Christopher Borgen, Nathan Chapman, Harlan Grant Cohen, Tim Dorlach, James Gathii, Catherine Hardee, David Hughes, Brian Israel, John Linarelli, Margaret McGuinness, Jide Nzelibe, Lori Ringhand, Usha Rodriguez, Peter B. Rutledge, Alvaro Santos, Galit Sarfaty, Yahli Shereshevsky, Richard Steinberg, and participants at workshops at the ASIL Biennial International Economic Law Workshop, the American Society of International Law Research Forum, the UGA-Emory works-in-progress workshop, and the St. John’s University School of Law International Law Colloquium. Special thanks to Andrew Hedin, Matheus Teixeira, and the UGA Law Library for research assistance. ↑
2. Clayton M. Christensen, Michael E. Raynor & Rory McDonald, What Is Disruptive Innovation?, Harv. Bus. Rev., Dec. 2015, https://hbr.org/2015/12/what-is-disruptive-innovation [https://perma.cc/S84Z-8RE5] (“‘Disruption’ describes a process whereby a smaller company with fewer resources is able to successfully challenge established incumbent businesses.”); see also André Spicer, Disruptor Has Become a Dirty Word. And Not Just When Applied to Donald Trump, The Guardian, (June 11, 2019), https://www.theguardian.com/‌commentisfree/2019/jun/11/disruptor-dirty-word-donald-trump-scientists-engineers [https://perma.cc/P34D-HGY5] (“Now being [a] ‘disruptor’ is a positive. Entrepreneurs such as Elon Musk are lauded when they seek to ‘disrupt’ established industries . . . .”). ↑
3. See Elizabeth Pollman & Jordan M. Barry, Regulatory Entrepreneurship, 90 S. Cal. L. Rev. 383, 398 n.63 (2017) (describing how Uber relied on changing the law as part of its business plan). ↑
4. Id. ↑
5. Id. at 401–02. ↑
6. While Uber’s interpretations have often been successful in the United States, these results have not consistently been replicated elsewhere. See, e.g., Case C-434/15, Asociación Profesional Elite Taxi v. Uber Sys. Spain SL, ECLI:EU:C:2017:981 (Dec. 20, 2017) (defining Uber as a “service in the field of transport” under European Union Law and thus subject to normal regulation as a taxi). This observation builds on and departs from an account developed by Elizabeth Pollman and Jordan Barry, who define “regulatory entrepreneurship” as “[w]ell-funded, scalable, and highly connected startup businesses” who “target state and local laws and litigate them in the political sphere instead of in court.” Pollman & Barry, supra note 2, at 383. This Article identifies Pollman and Barry’s legal disruption as one mode of entrepreneurial interpretation. ↑
7. See discussion infra Subsection II.A.1. ↑
8. See discussion infra Subsection II.A.2. ↑
9. See discussion infra Section II.C. ↑
10. See, e.g., William N. Eskridge, Jr., Federal Lobbying Regulation: History Through 1954, in The Lobbying Manual 5 (William V. Luneburg, Thomas M. Susman & Rebecca H. Gordon eds., 4th ed. 2009) (history of U.S. federal lobbying laws); Samuel Issacharoff, On Political Corruption, 124 Harv. L. Rev. 118, 121, 134–42 (2010) (reviewing efforts to redress the “financial vulnerabilities of democracy,” including through campaign-finance reform efforts); Thomas M. Susman & William V. Luneburg, History of Lobbying Disclosure Reform Proposals Since 1955, in The Lobbying Manual, supra, at 23 (history of U.S. federal lobbying reform proposals). ↑
11. See, e.g., Heather K. Gerken & Alex Tausanovitch, A Public Finance Model for Lobbying: Lobbying, Campaign Finance, and the Privatization of Democracy, 13 Election L.J. 75, 87–90 (2014) (proposing reforms that would subsidize lobbying activity by public interest groups); Richard L. Hasen, Lobbying, Rent-Seeking, and the Constitution, 64 Stan. L. Rev. 191, 226–36 (2012) (proposing a “national economic welfare” rationale for lobbying regulation); Maggie McKinley, Lobbying and the Petition Clause, 68 Stan. L. Rev. 1131, 1199 (2016) (asserting that current lobbying regulation and practice violates the First Amendment’s Petition Clause); Zephyr Teachout, The Forgotten Law of Lobbying, 13 Election L.J. 4, 6 (2014) (noting that the scope of the constitutional lobbying right is unclear). ↑
12. See, e.g., discussion infra Subsection II.A.1 (describing how industry efforts to develop the Cape Town Convention on International Interests in Mobile Equipment began at the drafting stage and continue with efforts on implementation, interpretation, and compliance). ↑
13. Consider the problem of interpretation in the international context. For example, the key operative provision of the Paris Agreement on climate change provides that “[e]ach Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions.” Paris Agreement art. 4, ¶ 2, Dec. 12, 2015, T.I.A.S. No. 16-1104 (emphasis added). What is the meaning of the italicized portion? Have parties obligated themselves to engage in mitigation measures? For a careful defense of this interpretation, see Daniel Bodansky, Jutta Brunée & Lavanya Rajamani, International Climate Change Law 231 (2017) (arguing that the imperative “shall” relates both to the national contributions and the pursuit of mitigation measures). Or have parties merely committed to “pursuing” measures, with no obligation to actually carry them out? See, e.g., Richard Falk, “Voluntary” International Law and the Paris Agreement, Commentary on Global Issues (Jan. 16, 2016), https://richardfalk.wordpress.com/2016/01/16/voluntary-international-law-and-the-paris-agreement/ [https://perma.cc/ZTH6-C3UV] (arguing that the Paris Agreement is “voluntary” international law with no binding commitments). Which reading is best? Which is law? The Paris Agreement does not designate any international court or tribunal as a neutral arbitrator of disputes. Even if it had done so, international law has no official system of precedent to carry one tribunal’s interpretation forward with the force of law. See Harlan Grant Cohen, Theorizing Precedent in International Law, in Interpretation in International Law 268, 269 (Andrea Bianchi, Daniel Peat & Matthew Windsor eds., 2015) [hereinafter Cohen, Theorizing Precedent].

    In the United States, federal courts will interpret treaties, deferring in some instances to the executive branch. Curtis A. Bradley & Jack L. Goldsmith, Presidential Control over International Law, 131 Harv. L. Rev. 1201, 1204 (2018) (observing that “Presidents . . . have come to dominate the creation, alteration, and termination of international law for the United States”); see also Restatement (Third) of the Foreign Relations Law of the United States § 326(2) (Am. L. Inst. 1986) (noting that courts “give great weight to an interpretation made by the Executive Branch”). But many treaties do not offer private rights and so their meanings are not litigated in the United States. See id. § 907 cmt. a (“International agreements . . . generally do not create private rights or provide for a private cause of action in domestic courts . . . .”); see also United States v. Emuegbunam, 268 F.3d 377, 389 (6th Cir. 2001) (“As a general rule, however, international treaties do not create rights that are privately enforceable in the federal courts.”). Even if they are litigated in the United States, the interpretation produced by a U.S. court is just one competing interpretation on the international stage. Treaty meaning is not often litigated before international tribunals like the International Court of Justice. See Eric A. Posner, The Decline of the International Court of Justice 5 (Univ. Chi. John M. Olin L. & Econ., Working Paper No. 233, 2004), https://chicagounbound.‌uchicago.edu/cgi/viewcontent.cgi?article=1499&context=law_and_economics [https://perma.cc/77P8-RYK3] (noting that states frequently refuse to submit to the jurisdiction of the International Court of Justice). ↑

14. Cohen, Theorizing Precedent, supra note 12, at 268, 269–70 (“International law today . . . generally denies international precedents doctrinal force.”); see also sources cited infra Section I.A. (developing these points). ↑
15. Daniel Peat & Matthew Windsor, Playing the Game of Interpretation: On Meaning and Metaphor in International Law, in Interpretation in International Law, supra note 12, at 3, 3–4, 8 (identifying these gaps and setting out to remedy this shortcoming by “highlight[ing] the practice and process of interpretation as well as the professional identity of those involved”); see also James Crawford, Foreword to Interpretation in International Law, supra note 12, at v, v (“Legal scholarship has tended to tackle the issue of interpretation either from an abstract, quasi-philosophical perspective, or by focusing on the Vienna Convention on the Law of Treaties . . . .”). ↑
16. See Jesse H. Choper, Introduction to The Political Question Doctrine and The Supreme Court of the United States 1, 1–2 (Nada Mourtada-Sabbah & Bruce E. Cain eds., 2007) (outlining debates about the political question doctrine); Bradley & Goldsmith, supra note 12, at 1252–56 (examining consequences of presidential control over international lawmaking and interpretation). ↑
17. The approach places this Article within the “empirical turn” in international legal scholarship, which focuses on “midrange theorizing,” or building theory from the study of facts. Gregory Shaffer & Tom Ginsburg, The Empirical Turn in International Legal Scholarship, 106 Am. J. Int’l L. 1, 1 (2012). ↑
18. See infra Sections II.A & B. ↑
19. See infra Subsection II.A.1. ↑
20. See infra Subsection II.A.4. ↑
21. See infra Subsection II.A.3 & Section II.B. ↑
22. See infra Subsection II.A.2. ↑
23. For all the points in this paragraph, see the discussion in Section II.C. ↑
24. Vienna Convention on the Law of Treaties arts. 31–33, opened for signature May 23, 1969, 1155 U.N.T.S. 331; see, e.g., Duncan B. Hollis, The Existential Function of Interpretation in International Law, in Interpretation in International Law, supra note 12, at 78, 80 (“Conventional wisdom focuses almost entirely on . . . a single interpretive method—Articles 31 and 32 of the VCLT.”); Peat & Windsor, supra note 14, at 4 (noting that the “state of play” when it comes to interpretation in international legal scholarship and practice “is characterized by a myopic focus on the rules of treaty interpretation in Articles 31–33 of the VCLT”). ↑
25. As any international lawyer can explain, the Vienna Convention rules instruct that treaties should be “interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.” Vienna Convention on the Law of Treaties, supra note 23, at art. 31, ¶ 1. The vast majority of legal scholarship on international legal interpretation addresses the proper use of these rules. See discussion infra Subsection I.B.1. Their apparent simplicity masks myriad questions, which have spawned a variety of interpretive approaches, including textualism, purposivism, and a teleological approach, among others. See Hollis, supra note 23, at 81 (noting that “proponents of different interpretive methods claim that the VCLT accommodates, or privileges, their method”). ↑
26. Joseph Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason 241–64 (2009) (“Interpretation is therefore often thought to be retrieval, a process of retrieving and elucidating the meaning the original has.”). ↑
27. See Hollis, supra note 23, at 84 (noting that the VCLT rules themselves require interpretation); see also John Tobin, Seeking to Persuade: A Constructive Approach to Human Rights Treaty Interpretation, 23 Harv. Hum. Rts. J. 1, 3 (2010) (“[The Vienna Convention] is ultimately unable to resolve the question of how to choose a meaning . . . from among the inevitable range of potential meanings.”).

    Indeed, twentieth century American legal realists observed that all law might be indeterminate. See, e.g., Karl Lewellyn, Some Realism About Realism—Responding to Dean Pound, 44 Harv. L. Rev. 1222, 1237 (1931) (arguing that one of the hallmarks of realism is “distrust of the theory that traditional prescriptive rule-formulations are the heavily operative factor in producing court decisions”); Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809, 843 (1935) (“A truly realistic theory of judicial decisions must conceive every decision as . . . a product of social determinants and an index of social consequences.”); see also H.L.A. Hart, The Concept of Law

    204

    (2d ed. 1994) (“[T]he open texture of law leaves a vast field for creative activity which some call legislative.”). ↑

28. See, e.g., Phillip Allott, Interpretation—An Exact Art, in Interpretation in International Law
    

    ,

    supra

    note 12, at 373, 375 (noting that “[t]o anyone who knows anything about . . . epistemology” the idea that treaties have meaning “may seem comical in its naivety”); Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument 8 (2006) (“Meaning is not . . . present in the expression itself.”); Ian Johnstone, Introduction, 102 Am. Soc’y Int’l L. Proc. 411, 411 (2008) (noting debates over whether interpreters are “making law, based on values and policy choices”); see also Note, ‘Round and ‘Round the Bramble Bush: From Legal Realism to Critical Legal Scholarship, 95 Harv. L. Rev. 1669, 1678 (1982) (noting that critical scholars recognize the “historical contingency of law” and doctrinal first principles “represent mere choices of one set of values over another”); discussion infra Subsection I.B.2 (developing these points). ↑

29. Crawford, supra note 14, at v (“[I]nternational lawyers think that their interpretations are right, and they play the game [of interpretation] by trying to convince others of this.”). The term “constructivist” is appropriate here because the term “epistemic community” arose out of constructivist international relations theory. Michael Waibel, Interpretive Communities in International Law, in Interpretation in International Law
    

    ,

    supra note 12, at

    147, 149.

    ↑

30. See Waibel, supra note 28, at 148 (calling interpretation a “contest”); Crawford, supra note 14, at v (calling interpretation a “game”); Andrea Bianchi, The Game of Interpretation in International Law: The Players, the Cards, and Why the Game is Worth the Candle, in Interpretation in International Law
    

    ,

    supra note

    12

    ,

    at

    34, 34 (

    calling interpretation a “game”); Yanbai Andrea Wang, The Dynamism of Treaties, 78 Md. L. Rev. 828, 837 (2019) (calling treaties “departure points for further bargaining”). ↑

31. See infra Part III. ↑
32. See Eyal Benvenisti, Exit and Voice in the Age of Globalization, 98 Mich. L. Rev. 167, 170–71 (1999) (conceiving of the sovereign state as an agent of small interest groups); Rachel Brewster, The Domestic Origins of International Agreements, 44 Va. J. Int’l L. 501, 539 (2004) (noting that governments make international agreements in response to domestic needs); Melissa J. Durkee, International Lobbying Law, 127 Yale L.J. 1742, 1747 (2018) (describing the “quotidian reality of international lobbying”). The fact that international lawmakers face pressures from domestic constituencies has long been a matter of interest within international relations. See, e.g., Andrew Moravcsik, Taking Preferences Seriously: A Liberal Theory of International Politics, 51 Int’l Org. 513, 518 (1997) (arguing that in liberal international relations theory, domestic constituencies construct state interests); Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 Int’l Org. 427, 433–34 (1988) (theorizing that the negotiating behavior of national leaders reflects the dual and simultaneous pressures of international and domestic political games). ↑
33. These conversations are playing out in multiple disciplines. See, e.g., John Braithwaite & Peter Drahos, Global Business Regulation 5–7, 27–33 (2000) (sociology); Walter Mattli & Ngaire Woods, Introduction to The Politics of Global Regulation, at ix, x–xii (Walter Mattli & Ngaire Woods eds., 2009) (political science); A. Claire Cutler, Virginia Haufler & Tony Porter, Private Authority and International Affairs, in Private Authority and International Affairs 3, 4 (A. Claire Cutler, Virginia Haufler & Tony Porter eds., 1999) (international relations); Tim Büthe & Walter Mattli, The New Global Rulers: The Privatization of Regulation in the World Economy 5 (2011) (law); Joshua Barkan, Corporate Sovereignty: Law and Government Under Capitalism 8–14 (2013) (political geography). ↑
34. Kenneth W. Abbott, David Levi-Faur & Duncan Snidal, Theorizing Regulatory Intermediaries: The RIT Model, 670 Annals Am. Acad. Pol. & Soc. Sci. 14 (2017). This literature seeks to understand how “state actors, private organizations, and civil society actors mediate the meaning of legal rules in regulatory governance arrangements that they participate in.” Shauhin Talesh, Rule-Intermediaries in Action: How State and Business Stakeholders Influence the Meaning of Consumer Rights in Regulatory Governance Arrangements, 37 Law & Pol’y 1, 2 (2015). ↑
35. Martha Finnemore & Katheryn Sikkink, International Norm Dynamics and Political Change, 52 Int’l Org. 887, 893 (1998) (introducing the idea that norms “cascade” through an international system after a sufficient number of states adopt the norm; advocacy groups can help initiate this process by serving as “norm entrepreneurs”). The “norm cascade” literature has focused on advocacy groups, id., rather than private sector norm entrepreneurs, and has focused on the role of non-governmental organizations in the emergence of a norm rather than the interpretation of that norm once a treaty has been adopted. See Heidi Nichols Hadad, After the Norm Cascade: NGO Mission Expansion and the Coalition for the International Criminal Court, 19 Glob. Governance 187, 187 (2013) (noting the assumption that “NGOs exercise their greatest impact on norm change during the early stages of norm emergence”). ↑
36. Rahim Moloo, Changing Times, Changing Obligations? The Interpretation of Treaties Over Time, 106 Am. Soc’y Int’l L. Proc. 261, 261, 264 (2012) [hereinafter Moloo, Changing Times?] (noting that while treaties are hard to amend, treaty interpretation can adapt treaties to changing circumstances). ↑
37. See infra Section I.A. (reviewing this debate). ↑
38. See Joseph J. Ellis, The Supreme Court Was Never Meant to Be Political, Wall St. J. (Sept. 14, 2018), https://www.wsj.com/articles/stop-pretending-the-supreme-court-is-above-politics-1536852330 [https://perma.cc/TU2G-95XW] (examining the importance of presidential nominations of Justices to the Supreme Court by pointing to the growth of seemingly political 5-4 decisions since 1954); see also Carl Hulse, Political Polarization Takes Hold of the Supreme Court, N.Y. Times (July 5, 2018), https://www.nytimes.com/2018/07/05/us/politics/political-polarization-supreme-court.html [https://perma.cc/P6SK-KNGR] (observing perceptions that the Supreme Court is becoming more politically polarized and less neutral). ↑
39. E.g., Most Americans Trust the Supreme Court, but Think It Is ‘Too Mixed Up in Politics,’ Associated Press (Oct. 16, 2019), https://apnews.com/PR%20Newswire/ca162cc‌03b3261ff608ab7d8cfc31a25 [https://perma.cc/7U2X-VURA] (reporting on surveys that reflect that a growing number of the American public views the Supreme Court as partisan). ↑
40. Joseph William Singer, Legal Realism Now, 76 Calif. L. Rev. 465, 470 (1988) (book review) (“Social context, the facts of the case, judges’ ideologies, and professional consensus critically influence individual judgments and patterns of decisions over time. The realists felt that study of such factors could improve predictability of decisions.”); Lewellyn, supra note 26, at 1237 (arguing that one of the hallmarks of realism is “distrust . . . that traditional prescriptive rule-formulations are the heavily operative factor in producing court decisions”); Cohen, supra note 26, at 843 (“A truly realistic theory of judicial decisions must conceive every decision as . . . a product of social determinants and an index of social consequences.”). ↑
41. Bradley & Goldsmith, supra note 12, at 1203 (arguing that “Presidents have come to dominate the making, interpretation, and termination of international law for the United States”). ↑
42. Harlan Grant Cohen, The Death of Deference and the Domestication of Treaty Law, 2015 BYU L. Rev. 1467, 1469 (2015) [hereinafter Cohen, Death of Deference]. ↑
43. Restatement (Third) of the Foreign Relations Law of the United States § 326 (Am. L. Inst. 1986). ↑
44. Cohen, Death of Deference, supra note 41, at 1467. ↑
45. See, e.g., Linda D. Jellum, The Theories of Statutory Construction and Legislative Process in American Jurisprudence, in Logic in the Theory and Practice of Lawmaking
    

    173, 174 (Michał Araszkiewicz & Krzysztof Płeszka eds., 2015) (introducing the competing theories of statutory interpretation as applied in American jurisprudence). Debates implicate theories like originalism, textualism, and intentionalism, and include familiar questions about whether interpretation should privilege the specific intent of the drafters or render the text adaptable to new circumstances. See id. at 181–94. ↑

46. See id.at 180 (explaining that judges use canons of construction to discern legislative meaning; some of these have at times been highly controversial, and their use has changed over time). ↑
47. See Choper, supra note 15, at 1–2 (describing debates, perspectives, and issues). ↑
48. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803); see also Bernard W. Bell, Marbury v. Madison and the Madisonian Vision, 72 Geo. Wash. L. Rev.
    

    197, 197 (2003) (“[T]hat the Court in at least some instances has the power to enforce the Constitution by invalidating the actions of all government officials, even Congress and the [P]resident acting through the legislative process—is no longer seriously contested.”). ↑

49. See Posner, supra note 12, at 1–2 (examining potential theories for why the ICJ’s light caseload has declined over the long term relative to the number of states). ↑
50. See Cohen, Theorizing Precedent, supra note 12, at 269 (“International law today . . . generally denies international precedents doctrinal force. . . . [J]udicial decisions construing international law are not in and of themselves law—decisions are not binding on future parties in future cases, even before the same tribunal.”). ↑
51. Ulrich Fastenrath, Relative Normativity in International Law, 4 Eur. J. Int’l L. 305, 335 (1993). ↑
52. See Curtis A. Bradley & Judith G. Kelley, The Concept of International Delegation, 71 Law & Contemp. Probs. 1, 1, 14 (2008) (“[T]he individual state surrenders some autonomy to international bodies . . . by authorizing them to participate in decision-making processes and to take actions that affect the state. . . . A regulatory delegation grants authority to create administrative rules to implement, fill gaps in, or interpret preexisting international obligations.”). ↑
53. See, e.g., Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, ¶ 3, WTO Doc. WT/DS58/AB/RW (adopted Nov. 21, 2001) (deciding whether the United States could prohibit the importation of certain shrimp and shrimp products under Article XX(g) of the GATT 1994). ↑
54. Convention Relating to the Status of Refugees art. 1, July 28, 1951, 189 U.N.T.S. 150 (entered into force Apr. 22, 1954) (defining “refugee”); see also M. Akram Faizer, America First: Improving a Recalcitrant Immigration and Refugee Policy, 84 Tenn. L. Rev. 933, 953–54 (2017) (“Refugees are entitled to claim protection under the Refugee Convention while economic migrants are excludable and deportable . . . .”). ↑
55. See David N. Cinotti, How Informed is Sovereign Consent to Investor-State Arbitration?, 30 Md. J. Int’l L. 105, 113 (2015) (discussing Philip Morris’s arbitrations against Uruguay for requiring graphic images on the warning labels on cigarette cartons). ↑
56. Melissa J. Durkee, Interstitial Space Law, 97 Wash. U. L. Rev. 423, 452 (2019) (noting that the answer to whether companies may legally make commercial use of outer space resources depends on interpretation of the Outer Space Treaty). ↑
57. Jeffrey L. Dunoff & Mark A. Pollack, Reviewing Two Decades of IL/IR Scholarship: What We’ve Learned, What’s Next, in Interdisciplinary Perspectives on International Law and International Relations 626, 637–38 (Jeffrey L. Dunoff & Mark A. Pollack eds., 2013) (“[M]ost legal interpretation takes place outside of courts. . . . But this activity has largely fallen outside the purview of IL/IR scholarship. . . . The methodological challenges of studying dispute settlement outside the judicial arena are substantial . . . .”). But see Ingo Venzke, How Interpretation Makes International Law: On Semantic Change and Normative Twists (2012) (exploring how actors who hold semantic authority can shift the meanings of international legal texts through discourse about them). ↑
58. See Cohen, Theorizing Precedent, supra note 12, at 269 (international judicial decisions lack precedential value); Posner, supra note 12, at 1 (international courts do not decide many cases). ↑
59. See, e.g., Anthony Aust, Modern Treaty Law and Practice 233 (2d ed. 2007) (“[W]hatever the mechanism by which a dispute about the interpretation or application of a treaty is determined, the body will be guided by the principles and rules in Articles 31 and 32 [of the Vienna Convention].”); Richard K. Gardiner, Treaty Interpretation 9 (2d ed. 2015) (“This book is not about theory. It is about the practical use of the Vienna rules.”); The Oxford Guide to Treaties 475–550 (Duncan Hollis ed., 2012) (focusing three chapters on interpretation on the Vienna Convention rules and special circumstances where it is necessary to diverge from them); Christian J. Tams, Antonios Tzanakopoulous & Andreas Zimmermann, Research Handbook on the Law of Treaties, at xi–xii (Christian J. Tams, Antonios Tzanakopoulous & Andreas Zimmermann eds., 2014). ↑
60. Peat & Windsor, supra note 14, at 6–7. ↑
61. Raz, supra note 25, at 264. ↑
62. Peat & Windsor, supra note 14, at 9 (quoting Raz, supra note 25, at 241–64). ↑
63. It should be noted that some who advance purposive or evolutive theories of treaty interpretation may chafe at being placed in the “formalist” camp. These thinkers consider only stricter textualists to be formalists and call themselves something else, perhaps “functionalists.” The point of lumping all these positions together here is not to eliminate these important distinctions, but to show that much of the international legal scholarship on interpretation focuses on how to apply the rules of the game, the Vienna Convention rules, as each of these positions does. See infra notes 69–78 and accompanying text. ↑
64. Vienna Convention on the Law of Treaties, supra note 23, 1155 U.N.T.S. at 340. Even states that have not joined the Vienna Convention, like the United States, usually consider the treaty’s rules to be legally binding through customary international law. See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Treaties, Human Rights and Conditional Consent, 149 U. Pa. L. Rev. 399, 424 (2000) (noting that U.S. scholars and executive branch officials accept that many provisions of the Vienna Convention have entered into custom). The International Court of Justice has also treated the Vienna Convention’s interpretive rules as binding through custom. Frederic L. Kirgis, Jr., Custom on a Sliding Scale,
    

    81

    Am. J. Int’l L. 146, 149 n.16 (1987) (observing “the readiness of international tribunals,” including the ICJ, “to accept, as custom, the major substantive provisions of the Vienna Convention on the Law of Treaties”). ↑

65. Vienna Convention on the Law of Treaties, supra note 23, 1155 U.N.T.S. at 340. ↑
66. Id. (defining the context to include the preamble and annexes, among other things). ↑
67. Id. Note that the preparatory work of the treaty is the international version of legislative history. ↑
68. Id. ↑
69. Peat & Windsor, supra note 14, at 6. ↑
70. See, e.g., Isabelle Buffard & Karl Zemanek, The “Object and Purpose” of a Treaty: An Enigma?, 3 Austrian Rev. Int’l & Eur. L. 311, 315 (1998); David S. Jonas & Thomas N. Saunders, The Object and Purpose of a Treaty: Three Interpretive Methods, 43 Vand. J. Transnat’l L.
    

    565, 577 (2010).

    ↑

71. See Rebecca Crootof, Change Without Consent: How Customary International Law Modifies Treaties, 41 Yale J. Int’l L. 237, 252 (2016) (identifying these as the “three primary schools of thought on treaty interpretation”). ↑
72. See, e.g., Julian Arato, Treaty Interpretation and Constitutional Transformation: Informal Change in International Organizations, 38 Yale J. Int’l L. 289, 294 (2013) (discussing approaches to treaty interpretation based on the original and subsequent intent of state parties). ↑
73. See, e.g., Georg Nolte, Introduction to Treaties and Subsequent Practice 1–2 (Georg Nolte ed., 2013); Crootof, supra note 70, at 240; Rahim Moloo, When Actions Speak Louder Than Words: The Relevance of Subsequent Party Conduct to Treaty Interpretation, 31 Berkeley J. Int’l L. 39, 57 (2013) [hereinafter Moloo, Subsequent Party Conduct] (discussing the type of subsequent conduct relevant to treaty interpretation according to the Vienna convention). ↑
74. See, e.g., Yahli Shereshevsky & Tom Noah, Does Exposure to Preparatory Work Affect Treaty Interpretation? An Experimental Study on International Law Students and Experts, 28 Eur. J. Int’l L.
    

    1287, 1310 (2017) (finding that “preparatory work can play a significant role in decision making”). ↑

75. See Julian Arato, Accounting for Difference in Treaty Interpretation Over Time, in Interpretation in International Law
    

    ,

    supra note 12, at 205, 205–06 (collecting evidence that courts have taken a distinctive approach to the interpretation of human rights treaties). ↑

76. E.g., Neha Jain, Interpretive Divergence, 57 Va. J. Int’l L. 45, 47–48 (2017) (challenging an “orthodox” position of treaty interpretation through an examination of the Rome Statute of the International Criminal Court). ↑
77. E.g., Isabelle Van Damme, Treaty Interpretation by the WTO Appellate Body, at lxiii (2009) (examining interpretive methods in WTO jurisprudence). ↑
78. E.g., Rebecca M. Kysar, Interpreting Tax Treaties, 101 Iowa L. Rev. 1387, 1389–91 (2016) (arguing that because of the distinctive features of tax treaties, courts are justified in relying on extrinsic materials when interpreting them). ↑
79. E.g., Joanna Jemielniak, Legal Interpretation in International Commercial Arbitration 61–64 (2014). ↑
80. Another question formalists may care about, which lies beyond the scope of this project, is whether real-world processes of international legal interpretation moves take place outside of the ambit of national sovereignty or delegated authority. Are non-state interpreters competing with sovereigns or displacing authoritative interpretations? ↑
81. After all, as the previous discussion illustrated, questions about how properly to apply the Vienna Convention are what fuel the voluminous scholarly debates. See supra Subsection I.B.1. ↑
82. The critical legal studies movement has developed and amplified the critique, but it began much earlier. See Hersch Lauterpacht, Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties, 26 Brit. Y.B. Int’l L. 48, 53 (1949) (noting that rules are “not the determining cause[s] of judicial decision, but the form in which the judge cloaks a result arrived at by other means”). ↑
83. Peat & Windsor, supra note 14, at 12; see also, Johnstone, supra note 27, at 411 (2008) (querying whether interpreters are “making law, based on values and policy choices”). ↑
84. Owen Fiss famously called this the “nihilist challenge” to law. See Owen M. Fiss, Objectivity and Interpretation, 34 Stan. L. Rev. 739, 741 (1982) (“The nihilist would argue that for any text . . . there are any number of possible meanings, that interpretation consists of choosing one of those meanings, and that in this selection process the judge will inevitably express his own values.”). ↑
85. Koskenniemi
    

    ,

    supra note 27, at 18. ↑

86. Id. at 531 (emphasis added). ↑
87. Ingo Venzke, Is Interpretation in International Law a Game?, in Interpretation in International Law
    

    ,

    supra note 13, at 352, 353. ↑

88. Id. at 359. ↑
89. Id. at 353. See also id. at 352–53 (describing three common ways of understanding “what it means to play the interpretive game”). ↑
90. Fiss, supra note 83, at 741; see also Martti Koskenniemi, International Law and Hegemony: A Reconfiguration, 17 Cambridge Rev. Int’l Affs. 197, 199 (2004) (finding that international actors use legal meaning as a tool to “challenge each other by invoking legal rules and principles on which they have projected meanings that support their preferences and counteract those of their opponents”). ↑
91. Hilary Charlesworth, Christine Chinkin & Shelley Wright, Feminist Approaches to International Law, 85 Am. J. Int’l L. 613, 614–15 (1991). ↑
92. See id. at 621–22 (“In both states and international organizations the invisibility of women is striking. . . . [W]omen have significant positions of power in very few states, and in those where they do, their numbers are minuscule.”). This results in legal regimes where “issues traditionally of concern to men become seen as general human concerns” and “women’s concerns” are marginalized. Id. at 625. ↑
93. See Moshe Hirsch, The Sociology of International Law: Invitation To Study International Rules in Their Social Context, 55 U. Toronto L.J. 891, 929–30 (2005) (summarizing this literature). ↑
94. For example, feminist thinkers have proposed that treaty interpretation should recognize the omission of women in lawmaking. Since men have held privileged positions in developing treaty texts, the interpretation of treaties should favor women, as the weaker parties. Id. at 930. For example, “treaty rules that protect women’s rights . . . should be interpreted expansively, and rules that prejudice women’s legal interests should be narrowly construed.” Id. ↑
95. A recent volume on “Feminist Judgments in International Law” makes both the explicit and implicit point that identity of the interpreter shapes the legal interpretation. Editors of the volume claim that a feminist chamber may, among other things, “place greater emphasis on the context of a dispute; highlight the impact of power and politics on international law decision-making; foreground the experiences of individuals; [or] offer a different interpretation of rules and rights . . . .” Feminist Judgments in International Law 14 (Loveday Hodson & Troy Lavers eds., 2019). The authors make this point implicitly as well, as the conceit of the book is to rewrite a number of different judicial decisions in international law from a feminist perspective, demonstrating that the perspective of the interpreter matters. See id. at 8 (explaining that “the aim of the project . . . [is] to take the feminist re-writing methodology and apply it to the decisions of international tribunals,” thereby “telling the story differently”). ↑
96. B.S. Chimni, Third World Approaches to International Law: A Manifesto, 8
    

    Int’l. Cmty. L. Rev.

    3

    , 15 (2006). ↑

97. Id. at 12–13. ↑
98. See id. at 13 (noting that “the WTO Appellate Body has interpreted the texts in a manner as to upset the balance of rights and obligations agreed to by third world States”). Chimni offers as an example the Appellate Body’s interpretation of the balance between trade and environmental concerns, an interpretation that, he claims, “was never envisaged by third world States” and has brought detrimental consequences. Id. ↑
99. Id. at 22 (“[B]oth feminist and third world scholarship address the question of exclusion by international law.”). ↑
100. Ian Johnstone, Treaty Interpretation: The Authority of Interpretive Communities, 12 Mich. J. Int’l L. 371, 378 (1991) [hereinafter Johnstone, Interpretive Communities]. ↑
101. See id; cf. J.M. Balkin & Sanford Levinson, Interpreting Law and Music: Performance Notes on “The Banjo Serenader” and “The Lying Crowd of Jews,” 20 Cardozo L. Rev. 1513, 1519–20 (1999) (discussing the role of the audience in determining whether an interpretation of a text is “authentic or faithful”). ↑
102. See Waibel, supra note 28, at 147. ↑
103.  See Stanley Fish, Is There a Text in This Class? The Authority of Interpretive Communities 14 (1980) (offering a literary theory argument that it is interpretive communities who determine the meanings of texts); see also Peat & Windsor, supra note 14, at 10 n.48. The idea is that “[t]he text is not an object entirely independent of its reader, nor is interpretation an entirely individual and subjective activity; meaning is produced by neither the text nor the reader but by the interpretive community in which both are situated.” Johnstone, Interpretive Communities, supra note 99, at 378. ↑
104. Johnstone, Interpretive Communities, supra note 99, at 374 (noting Fiss’s proposal that, as in the case of literary interpretation, “legal interpretation is constrained by a set of disciplining rules recognized as authoritative by an interpretive community”). ↑
105. See id. at 375 (“Fiss emphasizes that the interpretive community of judges has authority to confer on particular interpretations because judges belong to the community . . . .”). Judges do not claim that their interpretation is authoritative by arguing for its superior merits as an intellectual matter but rather by “by virtue of their office[s]” as judges. Id. “[T]he interpretive community of judges has authority to confer on particular interpretations because judges belong to the community” that holds the societal mandate to make authoritative interpretations. Id. ↑
106. Id. at 385. ↑
107. Id. ↑
108. Id. at 378 (noting that it is these practices and conventions that constrain interpretive discretion). ↑
109. See id. at 380. The interpretive process is relational, as parties “generate, elaborate and refine shared understandings and expectations.” Id. at 381. That idea that interpretation is a persuasive endeavor blossomed inevitably into the idea that interpretation is a game with players, strategies, objectives, and rules of play. A recent edited volume on interpretation by Andrea Bianchi and coauthors explicitly adopts the metaphor of the game. Bianchi, supra note 29. ↑
110. Tobin, supra note 26, at 9. ↑
111. Id. at 3–4. ↑
112. Id. at 49 (“The task of interpretation must therefore be seen not simply as the attribution of meaning to a legal text but also as an attempt to persuade the relevant interpretive community that a particular meaning from within a suite of potential meanings should be adopted.”). ↑
113. Id. at 14–48 (offering suggestions for how non-judicial actors might persuasively interpret human rights norms for audiences such as domestic government officials). ↑
114. See generally id. (focusing on non-governmental organizations, academics, and international organizations as among the non-judicial actors concerned with human rights norms). ↑
115. See Frederick Schauer, Pitfalls in the Interpretation of Customary Law, in The Nature of Customary Law: Legal, Historical and Philosophical Perspectives 13, 13 (Amanda Perreau-Saussine & James Bernard Murphy eds., 2007) (“Much has been written on the legal status of customary law, but considerably less attention has been devoted to the question of determining the content of the customary law whose legal status (or not) is at issue.”); Orfeas Chasapis Tassinis, Customary International Law: Interpretation from Beginning to End, 31 Eur. J. Int’l L. 235, 235 (2020) (“International lawyers seldom think of customary law and interpretation under the same heading.”). ↑
116. See, e.g., Chasapis Tassinis, supra note 114, at 236 (“[T]he dominant approach has largely reduced the analysis of customary international law to its identification through the collection of appropriate evidence.”); Curtis A. Bradley, Customary International Law Adjudication as Common Law Adjudication, in Custom’s Future: International Law in a Changing World 34, 34–39 (Curtis A. Bradley ed., 2016) (collecting debates, including whether custom requires both elements of practice and opinio juris; how it is possible to discern opinio juris; that there is no standard as to how much state practice is necessary; how to weigh various evidences of custom formation; how much evidence is necessary to determine whether custom has formed; whether custom is undemocratic; and so forth); Monica Hakimi, Making Sense of Customary International Law, 115 Mich. L. Rev. 1487, 1505 (2020) (arguing that a proposed customary international legal rule acquires force based on “how the group of actors who participate in a given domain of global governance interact with the position”); J. Patrick Kelly, The Twilight of Customary International Law, 40 Va. J. Int’l L.
     

     449, 452 (2000) (contending that the use of customary international law should be disfavored); Joel P. Trachtman, The Growing Obsolescence of Customary International Law, in Custom’s Future

     ,

     supra, at 172,

     172

     (noting that many areas once covered by custom should now be codified in treaties); Andrew T. Guzman, Saving Customary International Law, 27 Mich. J. Int’l L. 115, 119 (2005) (weighing relative usefulness of custom and treaties). ↑

117. Schauer, supra note 114, at 13. ↑
118. In practice, critical, formal, or constructive views tend to focus on the identification rather than the interpretation of custom. Chasapis Tassinis, supra note 114, at 236. That is, the theoretical debates are often channelled into questions about whether a customary international legal norm exists rather than debates about how to interpret an existing norm. See, e.g., B.S. Chimni, Customary International Law: A Third World Perspective, 112 Am. J. Int’l L. 1, 7 (2018) (claiming that “CIL rules embody ‘hegemonic’ ideas and beliefs”); Daniel H. Joyner, Why I Stopped Believing in Customary International Law, 9 Asian J. Int’l L. 31, 39 (2019) (“[A]ll of us—international courts, the ILC, and academics—in fact use our corrupted methodologies for determining the presence of CIL in order to serve our own instrumentalist ends.”); Bradley, supra note 115 (collecting critiques). ↑
119. Custom therefore offers parallels to the common law in the United States and Commonwealth nations. See Bradley, supra note 115, at 34 (developing the theory that “[t]he application of CIL by an international adjudicator . . . is best understood in terms similar to the judicial development of the common law”); see also Chasapis Tassinis, supra note 114, at 237 (noting that “interpretation . . . can be applied not just to words and text but also to social practices and unwritten rules”). ↑
120. Thus, one way to describe custom is as “the generalization of the practice of States,” as Judge Read did in the ICJ’s Fisheries Case. Fisheries (U.K. v. Nor.), Judgment, 1951 I.C.J. Rep. 116, 191 (Dec. 18) (Read, J., dissenting); see also Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14, ¶ 207 (June 27) (“[F]or a new customary rule to be formed, not only must the acts concerned ‘amount to a settled practice,’ but they must be accompanied by the opinio juris sive necessitatis. . . . [Relevant States] must have behaved so that their conduct is ‘evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.’”); North Sea Continental Shelf (Ger./Den.; Ger./Neth.), Order, 1969 I.C.J. Rep. 3, ¶ 77 (Feb. 20) (“The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even the habitual character of the acts is not in itself enough.”); Statute of the International Court of Justice art. 38(1)(b) (providing that the Court “shall apply . . . international custom, as evidence of a general practice accepted as law”). ↑
121. Schauer, supra note 114, at 13. ↑
122. Id. at 15 (arguing that interpretive questions are “no less relevant when the question is the interpretation . . . of customary law”). ↑
123. Id. at 16. ↑
124. Custom is also susceptible to the critique from American legal realism that law may not substantially constrain decision makers; it is also susceptible to questions about whether interpretation is a coherence-based process that develops within communities or a deductive one that produces a single correct answer. Chimni, supra note 117, at 15–16; see also Chasapis Tassinis, supra note 114, at 237–38 (pointing out that acknowledging that using customary international law requires “interpretive choices at every juncture of custom’s life” reveals the challenge of plasticity, or the idea that “legal analysis may theoretically yield rules of different . . . scope while using the exact same evidence”). ↑
125. Schauer, supra note 114, at 16. ↑
126. See, e.g., Andrea Bianchi, The International Regulation of the Use of Force: The Politics of Interpretive Method, 22 Leiden J. Int’l L. 651, 653–54 (2009) (proposing that interpretive communities can include “the handful of academics” that specialize in a particular rule’s application, “non-governmental organizations, lobbies, and pressure groups that may have an interest in particular instances, and intellectuals and opinion-makers who influence public opinion by publicly voicing their position on any given matter”); Johnstone, Interpretive Communities, supra note 99, at 385 (identifying two interpretive communities for treaties: first, officials directly responsible for treaty interpretation; and second, the broader international legal community consisting of “all experts and officials engaged in the various professional activities associated with treaty practice”). ↑
127. See, e.g., Gardiner, supra note 58 (focusing on international entities that hold formal or delegated authority to interpret, such as international organizations, international courts and tribunals, and national legal systems; omitting mention of non-state actors); Dunoff & Pollack, supra note 56, at 637 (noting international legal scholarship’s “almost exclusive emphasis on judicial behavior and its relative neglect of legal interpretation per se”). ↑
128. Daniel Peat and Matthew Windsor have proposed a similar set of questions, including: What is the “purpose of interpretation in the international legal system”? Do “actors’ interpretations differ according to their professional identities”? Does “strategy motivate[] interpretive choice”? Peat & Windsor, supra note 14, at 4. ↑
129. E.g., Shaffer & Ginsburg, supra note 16, at 1 (“What matters now is the study of the conditions under which international law is formed and has effects.”). The lack of attention to these questions on the international stage contrasts with attention to these interpretive questions in the domestic context, as in U.S. domestic law. See, e.g., Kent Greenawalt, Statutory and Common Law Interpretation 4 (2013); Lawrence M. Solan, The Language of Statutes: Laws and Their Interpretation 1–3 (2010); Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation 1 (2006). It also contrasts with scrutiny of these questions in other disciplines. See, e.g., Fish, supra note
     

     102

     , at 13–14 (literary theory). ↑

130. See, e.g., Paul Schiff Berman, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders 7–9 (2012) (global legal pluralism); Büthe & Mattli, supra note 32, at 1–2 (private sector standard setting organizations); Terence C. Halliday & Gregory Shaffer, Transnational Legal Orders, in Transnational Legal Orders 3, 3 (Terence C. Halliday & Gregory Shaffer eds., 2015) (transnational legal orders); Kenneth W. Abbott & David Gartner, Reimagining Participation in International Institutions, 8 J. Int’l L. & Int’l Rel. 1, 4 (2012) (multi-stakeholder structures); Kenneth W. Abbott & Duncan Snidal, Strengthening International Regulation Through Transnational New Governance: Overcoming the Orchestration Deficit, 42 Vand. J. Transnat’l L. 501, 504–06 (2009) (cooperative public-private mechanisms and projects). ↑
131. See generally Kishnathi Parella, Treaty Penumbras, 38 U. Penn. J. Int’l L. 275, 303–11 (2017) (reviewing the robust literature that responds to institutionalized efforts to engage the business sector through the Global Compact, the Ruggie Principles, and other efforts); see also supra note 32 and accompanying text (gathering a multidisciplinary literature on global corporate influence). ↑
132. See generally sources cited supra notes 9–10 (lobbying and campaign contributions); Adam Winkler, We the Corporations: How American Businesses Won Their Civil Rights 62 (2018) (personhood). ↑
133. See Gregory C. Shaffer, How Business Shapes Law: A Socio-Legal Framework, 42 Conn. L. Rev. 147, 150 (2009) (proposing this area of research); Paul B. Stephan, Privatizing International Law, 47 Va. L. Rev. 1573, 1595–1601 (2011) (noting a lack of information about the degree and effect of corporate participation in international lawmaking). ↑
134. Finnemore & Sikkink, supra note 34, at 893–94. ↑
135. Id. at 893–98. ↑
136. Id. ↑
137. Id. at 899; see also Erica Sandhu, Completing the Norm Life Cycle: The Post-Treaty Involvement of NGOs in the Mine Ban Treaty and Chemical Weapons Convention 5–7 (Aug. 2014) (M.A. thesis, University of British Columbia), https://open.library.ubc.ca/cIRcle/‌collections/ubctheses/24/items/1.0166964 [https://perma.cc/4K4C-4BDB]. ↑
138. See Sandhu, supra note 136, at 1. ↑
139. Heidi Nichols Haddad, After the Norm Cascade: NGO Mission Expansion and the Coalition for the International Criminal Court, 19 Glob. Governance 187, 196 (2013). ↑
140. See, e.g., Abbott, Levi-Faur & Snidal, supra note 33, at 14. ↑
141. Id. ↑
142. Id. at 15. ↑
143. Talesh, supra note 33, at 4 (2015). ↑
144. Crootof, supra note 70, at 252 (identifying as “[a]daptive interpretations” those that are “not immediately suggested by the treaty, but which attempt to reconcile outdated text with actual (or sometimes desired) state action”). ↑
145. Moloo, Changing Times?, supra note 35, at 261 (noting that treaties are hard to amend and suggesting “we look to treaty interpretation tools to adapt treaties to evolving circumstances”). ↑
146. Wang, supra note 29, at 837. ↑
147. Id. ↑
148. See Karen J. Alter, The Future of International Law, in A New Global Agenda: Priorities, Practices, and Pathways of the International Community, at 25,
     

     30–31 (

     Diana Ayton-Shenker ed., 2018) (tracing a variety of forms of backlash against the international liberal order). ↑

149. See id. ↑
150. See generally Eskridge, supra note 9, at 5 (developing a history of U.S. federal lobbying regulation through 1954); Susman & Luneburg, supra note 9, at 23 (offering a history of U.S. lobbying law since 1955). ↑
151. See generally Durkee, supra note 31, at 1747 (describing the “quotidian reality of international lobbying”). ↑
152. See generally Melissa J. Durkee, The Business of Treaties, 63 UCLA L. Rev. 264 (2016) [hereinafter Durkee, Business of Treaties] (describing business influence in international treaty making). ↑
153. Convention on International Interests in Mobile Equipment, Nov. 16, 2001, 2307 U.N.T.S. 285. ↑
154. See Roy Goode, From Acorn to Oak Tree: The Development of the Cape Town Convention and Protocols, 17 Unif. L. Rev. 599, 599–601 (2012) (providing aims of Cape Town Convention). ↑
155. See Mark J. Sundahl, The “Cape Town Approach”: A New Method of Making International Law, 44 Colum. J. Transnat’l L. 339, 345 (2006) (offering background on the default rules in security interests law). ↑
156. Id. at 345–46. ↑
157. See Sandeep Gopalan, Comment, Harmonization of Commercial Law: Lessons from the Cape Town Convention on International Interests in Mobile Equipment, 9 Law & Bus. Rev. Ams. 255 (2003) (discussing the role of the Cape Town Convention in harmonizing regulatory law for the aviation industry). ↑
158. See Roy Goode, The Cape Town Convention on International Interests in Mobile Equipment: A Driving Force for International Asset-Based Financing, 7 Unif. L. Rev. 3, 7–9 (2002) (describing the priority rules and international registry). ↑
159. See id. at 7. ↑
160. See Durkee, Business of Treaties, supra note 151, at 294 (describing how business actors were involved in drafting language and structure of the treaty as well as a ratification campaign); Goode, supra note 153, at 606 (noting that a business working group mounted a substantial campaign that proved indispensable to the development of the Cape Town Convention). ↑
161. See Durkee, Business of Treaties, supra note 151, at 294; Goode, supra note 153, at 606. ↑
162. See Durkee, Business of Treaties, supra note 151, at 295–96. ↑
163. Convention on International Interests in Mobile Equipment (Cape Town, 2001) – Status, International Institute for the Unification of Private Law (UNIDROIT), https://www.unidroit.org/status-2001capetown [https://perma.cc/PL5L-UGDJ] (last visited Feb. 20, 2021). ↑
164. See Gopalan, supra note 156, at 255. ↑
165. Inside AWG: Members, Aviation Working Group, http://www.awg.aero/inside-awg/members/ [https://perma.cc/3J5X-LWM8] (last visited Jan. 31, 2021). ↑
166. Inside AWG: Who We Are, Aviation Working Group, http://www.awg.aero/inside-awg/who-we-are/ [https://perma.cc/ZU8T-4B7G] (last visited Jan. 31, 2021). ↑
167. Inside AWG: Members, Aviation Working Group, http://www.awg.aero/inside-awg/members/ [https://perma.cc/3J5X-LWM8] (last visited Jan. 31, 2021). ↑
168. Our Projects: Cape Town Convention, Aviation Working Group, http://www.awg.aero/‌project/cape-town-convention/ [https://perma.cc/FC3F-AL6W] (last visited Jan. 31, 2021). ↑
169. Id. ↑
170. See id. ↑
171. See, e.g., id. (encouraging states to ensure that any declaration under the Convention restricts preferred non-consensual liens and rights to those that are customary). ↑
172.  Aviation Working Group, Self-Instructional Materials 15 (1st ed. 2014), http://awg.aero/wp-content/uploads/2019/10/Self%20Instructional%20Materials.pdf [https://perma.cc/DTW2-235D] (emphasis added). ↑
173. Id. at 28 (emphasis added) (clarifying that the Convention may not override national law on remedies). ↑
174. See id. ↑
175. Id. at 19. ↑
176. Id. at 28 (emphasis added). ↑
177. Id. at 15. ↑
178. Id. at Foreword. ↑
179. Id. at Foreword. ↑
180. Id. at 15. ↑
181.  Cape Town Convention Compliance Index, Aviation Working Group, http://www.awg.aero/wp-content/uploads/2019/10/CTC-Compliance-Index-Website-updated-October-2019.pdf [https://perma.cc/36FY-CLA3] (last visited Feb. 21, 2021). ↑
182. Id. (noting that the index is expected to come online in early 2020). ↑
183. The Group has released a methodology summary, but this does not offer information as to how the Group defines the terms and intent of the treaty for the purposes of its assessment. See Our Projects: Cape Town Convention, Aviation Working Group, http://www.awg.‌aero/project/cape-town-convention/ [https://perma.cc/2ARS-99XD] (last visited Feb. 21, 2021). ↑
184. Id. ↑
185. Id. ↑
186. Id. ↑
187. Id. ↑
188. See, e.g., Private Sector Lunar Exploration: Hearing Before the Subcomm. on Space of the H. Comm. on Sci., Space, & Tech., 115th Cong. 75, 87 (2017) (exploring, inter alia, debate about international law that applies to private sector lunar exploration); Reopening the American Frontier: Reducing Regulatory Barriers and Expanding American Free Enterprise in Space: Hearing Before the Subcomm. on Space, Sci., & Competitiveness of the S. Comm. on Com., Sci., & Transp., 115th Cong. 37 (2017) (same, with an expanded focus on various outer space activities); Comm. on the Peaceful Uses of Outer Space, Rep. on Its Sixtieth Session, ¶¶ 227–37, U.N. Doc. A/72/20 (2017) (recording debate between nations in an international forum). ↑
189. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies art. II, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty] (emphasis added). ↑
190. See, e.g., Zachos A. Paliouras, The Non-Appropriation Principle: The Grundnorm of International Space Law, 27 Leiden J. Int’l L.
     

     37, 50 (2014) (“[A]s a matter of international law, the appropriation of any part of outer space . . . by private individuals is precluded by Article II of the Outer Space Treaty. Hence, any state that confers proprietary rights in outer space would commit an internationally wrongful act . . . .”); Int’l L. Ass’n, Space Law, in Report of the Fifty-Fourth Conference Held at The Hague 405, 429 (1971) (“[T]he draftsmen of the principle of non-appropriation never intended this principle to be circumvented by allowing private entities to appropriate areas of the Moon and other celestial bodies.”); Leslie I. Tennen, Enterprise Rights and the Legal Regime for Exploitation of Outer Space Resources, 47 U. Pac. L. Rev.

     281, 288 (2016) (“State recognition of claims to extraterrestrial property by its nationals is national appropriation ‘by any other means’ prohibited by Article II, no matter what euphemistic label is employed to mask the obvious.”). See generally Abigail D. Pershing, Note, Interpreting the Outer Space Treaty’s Non-Appropriation Principle: Customary International Law from 1967 to Today, 44 Yale J. Int’l L.

     149, 154–57 (2019) (gathering sources to argue that the non-appropriation principle was originally intended to be construed broadly and to unambiguously prohibit any appropriation of outer space resources). ↑

191. See, e.g., Virgiliu Pop, Who Owns the Moon?: Extraterrestrial Aspects of Land and Mineral Resources Ownership 48–58 (2009) (suggesting that the treaty intended to bar only national appropriation of outer space resources); Leslie I. Tennen, Towards a New Regime for Exploitation of Outer Space Mineral Resources, 88 Neb. L. Rev. 794, 799 (2010) (claiming that use of resources does not require appropriation of property, but can instead be based on a right to engage in a particular enterprise—enterprise rights, not ownership rights). See generally Julie Randolph, Fly Me to the Moon and Let Me Mine an Asteroid: A Primer on Private Entities’ Rights to Outer Space Resources, 59 For Defense, Dec. 2017, at 41, 43–47 (collecting sources). ↑
192. See supra note 189. ↑
193. See supra note 187 (legislative debates in the United States and at the United Nations Committee on the Peaceful Uses of Outer Space). ↑
194. See infra notes 199–209 and accompanying text. ↑
195. See Pollman & Barry, supra note 2, at
     

     385.

     ↑

196. Reopening the American Frontier: Reducing Regulatory Barriers and Expanding American Free Enterprise in Space: Hearing Before the Subcomm. on Space, Sci., & Competitiveness of the S. Comm. on Com., Sci., & Transp., 115th Cong. 40–41 (2017). ↑
197. Id. ↑
198. Private Sector Lunar Exploration: Hearing Before the Subcomm. on Space of the H. Comm. on Sci., Space, & Tech., 115th Cong. 76 (2017) (statement of Bretton Alexander, Director of Business Development and Strategy, Blue Origin). ↑
199. Id. (emphasis added). Alexander quite explicitly urged the U.S. government to shop around his industry’s favored interpretation of the Outer Space Treaty to international counterparts:

     I think it’s important for the U.S. government through the State Department to be talking internationally with its counterparts, particularly in the U.N. Committee on Peaceful Uses of Outer Space about what the Space Treaty, Outer Space Treaty, allows and how we’re interpreting that. It’s important for us as an industry to have the certainty that . . . it’s founded in the Outer Space Treaty, which basically say[s] that those resources are available to everybody so that when we go, let’s say, to the Moon and discover water ice there, we’re not saying now we own every piece of resource on the Moon and every bit of water ice on the Moon; we’re saying, you know, we are able to utilize what we are able to extract and be able to sell that and have property rights over that but not rights to the entire Moon.

     Id. (emphasis added). ↑

200. Reopening the American Frontier: Reducing Regulatory Barriers and Expanding American Free Enterprise in Space: Hearing Before the Subcomm. on Space, Sci., & Competitiveness of the S. Comm. on Com., Sci., & Transp., 115th Cong. 22 (2017) (statement of George Whitesides, CEO, Galactic Ventures). ↑
201. Id. at 13 (statement of Robert Meyerson, President, Blue Origin). ↑
202. Private Sector Lunar Exploration: Hearing Before the Subcomm. on Space of the H. Comm. on Sci., Space, & Tech., 115th Cong. 23–35 (2017) (statement of Bob Richards, Founder and CEO, Moon Express, Inc.). ↑
203. See Pollman & Barry, supra note 2, at 384–85 (describing “regulatory entrepreneurship” as advancing a business model on the prospect of legal change, and then pushing for that change)
     

     .

     ↑

204. Private Sector Lunar Exploration: Hearing Before the Subcomm. on Space of the H. Comm. on Sci., Space, & Tech., 115th Cong. 26 (2017) (statement of Bob Richards, Founder and CEO, Moon Express, Inc.). ↑
205. See Mike Wall, Asteroid Mining May Be a Reality by 2025, Space (Aug. 11, 2015), https://www.space.com/30213-asteroid-mining-planetary-resources-2025.html [https://perma.cc/92C2-9PPN]. ↑
206. Todd Bishop, Mining a $20 Trillion Asteroid? New Clues Emerge About Space Robot Startup, GeekWire (Apr. 19, 2012), https://www.geekwire.com/2012/mining-20-trillion-asteroid-clues-space-robot-startup/ [https://perma.cc/EVW9-W5WN] (reporting on plans announced by Planetary Resources Chairman Peter Diamandis in a TED talk to “go out and grab one of these [asteroids],” which he estimated to be “worth something like $20 trillion”). ↑
207. Kenneth Chang, If No One Owns the Moon, Can Anyone Make Money Up There?, N.Y. Times
     

     (Nov. 26, 2017), https://www.nytimes.com/2017/11/26/science/moon-express-outer-space-treaty.html [https://perma.cc/2D4Q-FHUB] (reporting that investors included a co-founder of Google, a former chief software architect at Microsoft, and the Grand Duchy of Luxembourg). ↑

208. Jamie Carter, A Japanese Startup is Set To Go Hunting for Ice . . . on the Moon, Techradar (Feb. 22, 2019), https://www.techradar.com/news/japanese-startup-set-to-go-hunting-for-ice-on-the-moon [https://perma.cc/5XHL-LSK2] (noting the company intends to “kick-start a new commercial space industry” by laying groundwork for other countries to engage in activities on the moon). ↑
209. Id. (reporting that the company wants “to identify where water ice exists and map that out so that we can eventually learn how to use it as a resource . . . to create basic rocket fuel for spacecraft”). ↑
210. Id. Another example is a UK startup called the Asteroid Mining Corporation, which seeks “to extract resources from asteroids to boost the Earth’s economy and kick start the Space Based Economy.” Our Values, Asteroid Mining Corp.
     

     ,

     https://asteroidminingcorporation.‌co.uk/our-vision [https://perma.cc/YP34-ZXAM] (last visited Feb. 21, 2021). The company is currently seeking investors and lobbying in the UK for introduction of legislation “clarifying” private rights over outer space resources. UK Space Resources Activities Bill, Asteroid Mining Corp.

     ,

     https://asteroidminingcorporation.co.uk/uk-space-resources-activities-bill [https://perma.cc/54NU-DRS7] (last visited Feb. 21, 2021). ↑

211. International Institute of Space Law
     

     ,

     https://iislweb.org/ [https://perma.cc/TSR7-7BLY] (last visited Jan. 31, 2021). ↑

212. Id. ↑
213. International Institute of Space Law Directorate of Studies, Does International Space Law Either Permit or Prohibit the Taking of Resources in Outer Space and on Celestial Bodies, and How Is This Relevant for National Actors? What Is the Context, and What Are the Contours and Limits of This Permission or Prohibition? 31 (Stephan Hobe ed., 2016), https://iislweb.org/docs/IISL_Space_Mining_Study.pdf [https://perma.cc/387R-5L3L] (industry group white paper on debate). ↑
214. Id. at 30–31. ↑
215. Id. at 31–35. ↑
216. Id. at 35 (acknowledging that there must be some sort of societal benefit to commercial use but proposing creative understandings of how these societal benefits might accrue; for example, they could “flow to all sectors of society through spinoffs” or “a greater and deeper understanding of space”). ↑
217. Tim Dorlach & Paul Mertenskötter, Interpreters of International Economic Law: Corporations and Bureaucrats in Contest over Chile’s Nutrition Label, 54 Law & Soc’y Rev
     

     .

     571 (2020). ↑

218. See id. at 586–87. ↑
219. Id. at 590–91. ↑
220. Id. at 571. ↑
221. Id. at 571, 583. ↑
222. Id. at 585. ↑
223. Id. at 586. ↑
224. Id. at 586–87 (explaining that the Chilean health ministry launched the consultation procedure by giving notice of its draft implementing regulations to the World Trade Organization, as required by the WTO’s Technical Barriers to Trade Agreement). ↑
225. Id. at 587. ↑
226. Id. ↑
227. Id. at 587 n.12. ↑
228. Id. at 586. ↑
229. Id. at 587, 587 n.12. ↑
230. Id. at 587 (including the Trade-Related Aspects of Intellectual Property Rights Agreement and the Technical Barriers to Trade (“TBT”) Agreement). ↑
231. Id. (opining that the nutrition label “would most likely survive a formal challenge”). ↑
232. Id. at 590 (referring to TBT Article 2.4). ↑
233. Id. ↑
234. Id. at 591. The authors explain that other outlying interpretations include that the “TRIPS Agreement grants a property right in trademarks,” meaning that any regulation to restrict them would “effectively expropriate trademark holders and therefore violate TRIPS,” id. at 588, and that Article 2.2 of the TBT Agreement requires regulators to “affirmatively disqualify all existing alternative[]” regulations that may be less trade restrictive, rather than putting the burden of proof on any ultimate challenger to offer evidence of a suitable alternative that is less trade restrictive, id. at 590. ↑
235. Id. at 591. ↑
236. Id. ↑
237. Id. at 591–92 (observing that these outlying interpretations appeared in submissions by foreign governments to Chile’s public consultation process, and in submissions to the TBT Committee’s Specific Trade Concerns mechanism). ↑
238. Id. at 593. ↑
239. Galit A. Sarfaty, Translating Modern Slavery into Management Practice, 45 Law & Soc. Inquiry 1027, 1027 (2020) (noting that these jurisdictions include, inter alia, the United Kingdom, California, and Australia). ↑
240. Id. ↑
241. Id. at 1031–32 (footnotes omitted). ↑
242. Id. at 1032. ↑
243. Id. at 1033. ↑
244. Id. at 1035. ↑
245. Id. at 1036. Safarty notes that some governments do provide a measure of guidance on how to define this norm and are now being pushed to provide more. For example, the United Kingdom agreed to offer more guidance on what must be disclosed. Id. at 1047. ↑
246. Id. at 1036. ↑
247. See id. at 1029 (noting that modern slavery is undefined both under international law and within the legislative definitions). ↑
248. Id. ↑
249. Id. at 1028–29. ↑
250. Id. at 1043. ↑
251. Id. at 1045. ↑
252. See id. at 1039 n.6 (noting that Sedex acknowledges the ambiguity in authoritative international sources for the “modern slavery” norm like guidance by the International Labor Organization). ↑
253. Id. at 1039. ↑
254. Id. ↑
255. Id. ↑
256. Id. ↑
257. Id. at 1030. ↑
258. Id. ↑
259. Id. at 1045. ↑
260. Id. at 1029. ↑
261. Anthea Roberts, State-to-State Investment Treaty Arbitration: A Hybrid Theory of Interdependent Rights and Shared Interpretive Authority, 55 Harv. Int’l L.J. 1, 6 (2014) [hereinafter Roberts, State-to-State]; see also Anthea Roberts, Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States, 104 Am. J. Int’l L. 179, 179 (2010) (“As investment treaties create broad standards rather than specific rules, they must be interpreted before they can be applied. Investor-state tribunals have accordingly played a critical role in interpreting, hence developing, investment treaty law.”). ↑
262. Roberts, State-to-State, supra note 260, at 11–13. Investment treaties include Bilateral Investment Treaties (BITs) and Free Trade Agreements (FTAs). See id. ↑
263. Anthea Roberts, Clash of Paradigms: Actors and Analogies Shaping the Investment Treaty System, 107 Am. J. Int’l L.
     

     45, 76–77 (2013) [hereinafter Roberts, Clash of Paradigms] (arguing that because “investment treaties traditionally coupled short and broadly worded obligations with strong enforcement mechanisms . . . (for example, the promise to treat investors fairly and equitably) . . . the tribunal charged with interpreting and applying the standard is given wide discretion”). ↑

264. Roberts, Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States, supra note 260, at 179 (finding that the jurisprudence of the tribunals “resembles a house of cards built largely by reference to other tribunal awards and academic opinions, with little consideration of the views and practices of states in general or the treaty parties in particular”); Roberts, Clash of Paradigms, supra note 262, at 77 (noting how this “lead[s] to much investment treaty law being developed through a body of de facto precedents”). ↑
265. Anthea Roberts, Recalibrating Interpretive Authority
     

     1

     (Columbia FDI Persps., Working Paper No. 113, 2014), http://ccsi.columbia.edu/files/2014/01/FDI_No113.pdf [https://perma. ‌cc/A8BK-NWQF] (“As a result, much of the content of investment treaties was forged by tribunals, often in ways going beyond the intentions of the treaty parties.”). ↑

266. See, e.g., Julian Arato, Corporations as Lawmakers, 56 Harv. Int’l L.J
     

     .

     229, 247 (2015) (finding that the effort of multinational corporations to secure protection of favorable investment terms “has been helped along, to be sure, by a great many favorable interpretations of the broad and malleable provisions incorporated in BITs and FTAs”); Roberts, State-to-State, supra note 260, at 25 (noting concerns that “investor-state tribunals were interpreting broad and vague treaty language in ways that were overly protective of investors’ commercial interests”). Note that the investment disputes offer a unique context in international law in which private parties may bring disputes against nations directly. See generally Roberts, State-to-State, supra note 260, at 2 (reviewing these circumstances). ↑

267. Roberts, State-to-State, supra note 260, at 25 (also noting that arbitrators were “selected by the disputing parties, rather than the treaty parties, which meant that the tribunals often were not conscious that they were agents of the treaty parties” in performing these interpretive functions). ↑
268. Id. ↑
269. Id. at 25 n.111 (paraphrasing Gus Van Harten, Investment Treaty Arbitration and Public Law 96–99 (2007)). ↑
270. Id. (quoting Robert O. Keohane, Andrew Moravcsik & Anne-Marie Slaughter, Legalized Dispute Resolution: Interstate and Transnational, 54 Int’l Org. 457, 459 (2000)). ↑
271. Roberts, Clash of Paradigms, supra note 262, at 78 (characterizing these more precise treaties as “second generation” investment treaties, “characterized by states seeking to recalibrate this balance of power by increasing the specificity of their treaty commitments and reasserting their interpretive rights as treaty parties”).

     The fact that investment treaty arbitration offers considerable room for interpretive contests by the litigants has also inspired non-governmental organizations and respondent states to try to introduce outside norms into the interpretive process, demonstrating that the interpretations that prevail are products of lively contests for meaning. See, e.g., Stephen W. Schill, The OECD Guidelines for Multinational Enterprises and International Investment Agreements: Converging Universes, in 40 Years of the OECD Guidelines for Multinational Enterprises 63, 70–76 (Nicola Bonucci & Catherine Kessedjian eds., 2018) (exploring how respondent states and non-governmental organizations as amici have raised environmental, human rights, and corporate accountability standards in investment arbitrations to try to convince investment tribunals to interpret investment treaty obligations in reference to those standards). ↑

272. Michael L. Barnett, One Voice, But Whose Voice? Exploring What Drives Trade Association Activity, 52 Bus. & Soc’y 213, 221 (2012). ↑
273. See id. at 213–14 (describing trade associations). See generally Sarah Dadush, The Internal Challenges of Associational Governance, 111 AJIL Unbound 125, 125 (2017) (analyzing relationships between trade associations and their members). ↑
274. Barnett, supra note 271, at 214 (internal citation omitted). ↑
275. Dorlach & Mertenskötter, supra note 216, at 600. ↑
276. Id. ↑
277. See discussion supra at Subsection II.A.1. ↑
278. This would be a productive question for further research. After all, “we have little systematic understanding” of trade associations and “[t]he lack of research . . . is lamentable.” Barnett, supra note 271, at 214. ↑
279. See discussion supra at Subsection II.A.4. ↑
280. Sarfaty, supra note 238, at 1028. ↑
281. Id. at 1029. The impact of platform businesses is an emerging area of scholarly attention; this case study shows that one productive target for further analysis is their impacts on law through legal interpretation. See id. ↑
282. See Moloo, Subsequent Party Conduct, supra note 72, at 57–78 (evaluating what subsequent conduct is relevant to treaty interpretation according to the Vienna Convention); Restatement (Third) of the Foreign Relations Law of the United States
     

     § 326 (

     Am. L. Inst.

     1987) (

     instructing U.S. courts to

     “

     give great weight to an interpretation made by the Executive Branch”); Johnstone, Interpretive Communities, supra note 99, at 385 (defining the principal interpretive community for a treaty is “interpreters directly responsible for the conclusion and implementation of a particular treaty”). ↑

283. See Kishanthi Parella, The Information Regulation of Business Actors, 111 AJIL Unbound 130, 130 (2017) (finding that business actors associate with reputable organizations as they seek to avoid negative reputational consequences). ↑
284. See supra Subsection II.A.1. ↑
285. See Sarfaty, supra note 238, at 1048 (noting that the disclosures are meant to allow stakeholders to “evaluate and compare corporate performance”). ↑
286. Pollman & Barry, supra note 2, at 384–85. ↑
287. Note that this spectrum is not intended to suggest that some strategies are more effective than others, but merely to simplify and organize a wide range of activity. ↑
288. Vienna Convention on the Law of Treaties, supra note 23, at art. 31, ¶ 3(b). ↑

289. Aust, supra note 58, at

     241

     . ↑

290. Gardiner, supra note 58, at 253. Subsequent practice is also “well-established in the jurisprudence of international tribunals.” Kasikili/Sedudu Island (Bots./Namib.), Judgment, 1999 I.C.J. 1045, ¶ 49 (Dec. 13) (quoting Int’l L. Comm’n, Reps. on the Work of Its Seventeenth and Eighteenth Sessions, U.N. Doc. A/CN.4/SER.A/1966/Add.1, ¶ 15 (1966)). ↑
291. Gardiner,
     

     supra note 58, at 253 (noting that subsequent practice in treaty interpretation “is one of the features of the Vienna rules which marks out a difference from the approach taken in some legal systems to interpretation of legal texts of purely domestic origin”). ↑

292. Wang, supra note 29, at 834–35. ↑
293. Id. at 879. ↑
294. Outer Space Treaty, supra note 188 (entered into force Oct. 10, 1967). ↑
295. Hakimi, supra note 115, at 1492. ↑
296. Alter, supra note 147, at 30–31 (tracing a variety of forms of backlash against the international liberal order). ↑
297. See Moloo, Changing Times?, supra note 35, at 261 (suggesting that treaty interpretation can adapt treaties to changing circumstances). ↑
298. See Durkee, supra note 31, at 1788–96 (exploring proposals for lobbying reform by the Organisation for Economic Co-operation and Development and other sources). ↑
299. See supra Subsection II.A.1. ↑
300. See supra Subsection II.A.2. ↑
301. See supra Subsection II.A.3. ↑
302. A Private Sector View of International Trade Negotiations, 91 Am. Soc’y Int’l. L. Proc. 89, 91 (1997) (remarks of Maureen Smith, Vice President for International Affairs, American Forest and Paper Association). ↑
303. See Durkee, supra note 31, at 1742. ↑
304. Id. at 1759 (citing Kenneth Anderson, Global Governance: The Problematic Legitimacy Relationship Between Global Civil Society and the United Nations 16 (Am. Univ. Wash. Coll. L. Rsch. Paper Series, Working Paper No. 2008-71, 2013), https://ssrn.com/abstract=1265839 [https://perma.cc/PE76-5ZL8] (for a description of this position)). ↑
305. Durkee, supra note 31, at 1759. ↑
306. See Tobin, supra note 26, at 1–4 (recognizing that public interest non-governmental organizations participate in interpreting human rights treaties; proposing ways for them to do so more effectively). ↑
307. Pollman & Barry, supra note 2, at 384–85. ↑
308. See supra Subsection II.A.2. ↑
309. See id. ↑
310. See supra Subsection II.A.1. ↑
311. See, e.g., Abbott & Gartner, supra note 129, at 26 (examining these questions); Daniel Esty, Good Governance at the Supranational Scale: Globalizing Administrative Law, 115 Yale L.J. 1490, 1498 (2006) (same); Benedict Kingsbury, Nico Krisch & Richard B. Stewart, The Emergence of Global Administrative Law, 68 Law & Contemp. Probs. 15, 18 (2005) (same). ↑
312. See, e.g., Moravcsik, supra note 31, at 513 (explaining liberal theory in international relations); Brewster, supra note 31, at 502 (showing how interest group lobbying at the national level shapes national approaches to international law); see also Benvenisti, supra note 31, at 170–72 (conceiving of the sovereign state as an agent of small interest groups). ↑
313. See supra notes 133–42 and accompanying text. ↑
314. See, e.g., W. Michael Reisman, Siegfried Wiessner & Andrew R. Willard, The New Haven School: A Brief Introduction, 32 Yale J. Int’l L. 575, 575–77 (2007) (offering a brief primer on the New Haven School approach). ↑
315. See, e.g., Ralf Michaels, Global Legal Pluralism, 5 Ann. Rev. L. & Soc. Sci. 243, 243–45 (2009) (reviewing literature). ↑
316. Halliday & Shaffer, supra note 129, at
     

     3, 11

     . ↑

317. See generally International Law as Behavior (Harlan Grant Cohen & Timothy Meyer eds., 2021) (highlighting a “behavioral approach” to legal scholarship); Hakimi, supra note 115, at 1489 (taking a process-based approach to customary international law); Wang, supra note 29, at 828 (analyzing treaty implementation as a product of domestic interactions); Harlan Grant Cohen, International Precedent and the Practice of International Law, in Negotiating State and Non-State Law: The Challenge of Global and Local Legal Pluralism
     

     172, 174–75 (Michael A. Helfand ed., 2015) (taking a “communities of practice” approach to accounts of international precedent); Yahli Shereshevsky, Back in the Game: International Humanitarian Lawmaking by States, 37 Berkeley J. Int’l L. 1, 4 (2019) (showing how states sometimes adopt non-state actors’ strategies to influence lawmaking processes); Susan Block-Lieb & Terence C. Halliday, Global Lawmakers: International Organizations in the Crafting of World Markets 13 (2017) (examining the UN Commission on International Trade Law as the “site of struggles for influence and power”). ↑

318. See, e.g., Anthea Roberts, Is International Law International?

     1

     (2017) (examining how “different national communities of international lawyers construct their understandings of international law”); Lianne J.M. Boer & Sofia Stolk, Backstage Practices of Transnational Law, in Backstage Practices of Transnational Law 1, 2 (Lianne J.M. Boer & Sofia Stolk eds., 2019) (exploring the “practices, habits and routines that make up the lives of those involved in the field of transnational law”). ↑