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Excerpted From: Veronika Fikfak, Daniel Peat and Eva van der Zee, Bias in International Law, 23 German Law Journal 281 (April, 2022) (88 Footnotes) (Full Document)


FikfakPeatVanDerZeeThe “behavioural movement has become one of the most influential developments in legal scholarship in general” in recent years. Instead of assuming how actors taking part in the international legal process behave, the focus of inquiry has shifted to analyze their actual behavior. The central idea of this approach is that human cognitive capacities are limited--or bounded--by a variety of cognitive, emotional and social, or group-based biases. These shape our understanding of international rules, affect the manner in which we apply these rules, and influence outcomes of international adjudicatory processes. In this Symposium, our aim is to flesh out how these biases operate on the individual, group, and state level in various spheres of international law. In this regard, the issue builds on the extensive work in behavioural analysis of two psychologists, Tversky and Kahneman, who radically revolutionized cognitive and social psychology by revealing the common human errors that arise from human decision-making. Tversky and Kahneman found that human behaviour is not always purely rational, but could be influenced by cognitive biases--shortcuts made by humans in judgment and decision-making that lead to suboptimal decisions. Since then, a growing legal scholarship of experimental and empirical studies has shown that people's decisions are influenced by irrelevant information, by how the information is presented, and who is involved in the process. Scholars have also shown that people make common sense moral decisions, and that they are motivated by fairness and altruism. Throughout the world, the behavioral movement and the insights it has generated have influenced legal policymaking and regulation.

This Symposium therefore looks beyond the traditional understanding of international law as applying between states, but instead focus on individuals as actors in the international sphere. Specifically, the Issue explores several aspects in which international law frames our decisions and triggers individual cognitive biases and emotional and moral responses. From international trade law to human rights, our authors look at how legal language potentially affects social attitudes, preferences, and policy. Through large computational studies and experiments, as well as theoretical interventions, we see the multitude of ways in which international law is infused in our lives and how it affects our decisions and behaviour. The Symposium shows that apparently neutral international norms may not be neutral in their application, that cognitive errors affect our understanding and drafting of these norms, and that this influences how we understand and apply international rules. In addition, the Symposium looks closely at how different international law actors operate in their communities and the specific heuristics and biases that are born out of operation in those communities. In this regard, the articles in this Symposium seek to broaden the scope of addressees of international law.

In many respects, the Symposium is a call to a different study of international law. It wishes to draw attention to the hidden and the unsaid, but the ever present--to our bias. It seeks to lift the veil on how we-- individuals, groups and states--actually behave in response to international law norms and how we use international law to influence other people, create communities, and shape identities.

This Introduction proceeds in three parts: In the next section, we explain the type of shortcuts we make in our decision-making. This description of biases is followed by an overview of behavioural literature in international law that has thus far examined how bias operates in different aspects of international law--in relation to sources, to compliance, to individuals taking part in the international legal process. We then turn to introduce the Symposium and explain its contribution to the existing literature.

[. . .]

This Symposium is a call to a different study of international law. It wishes to draw attention to the hidden and the unsaid, but the ever-present--to our bias. It seeks to lift the veil in how international law rules and applied, perceived and how they influence our behavior. It does this by first showing that apparently neutral international norms may not be neutral in their application and that regulators, legislators and others should think of our cognitive biases and heuristic errors when drafting such norms; secondly, by revealing that international law labels such as “human rights,” “refugees,” 'international crimes” may have an impact that goes beyond the envisaged or intended by the law; thirdly, by underlining that when we study international law, this is not an abstract, theoretical discussion of judgments, laws, and scholarly writing. Instead, it is a domain filled with people--judges, arbitrators, scholars, practitioners, but also individual human rights victims, everyday consumers, and others. By looking at how bias in international law is exhibited and expressed, the articles in this Symposium seek to broaden the scope of addressees of international law. In the end, we argue that when we study international law, we should always think about who we study.

Veronika Fikfak is a Fellow and Lecturer at the University of Cambridge and an ESRC Future Research Leader

Daniel is an Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies at Leiden Law School, and Academic Coordinator of the Advanced LL. M. on International Dispute Settlement and Arbitration.

 Eva van der Zee is a junior professor (tenure-track) in international law with a focus on behavioural law and economics at Hamburg University, Institute of Law and Economics

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