¹ Byers, Michael, Custom, Powerand the Power of Rules: International Relations and Customary International Law (Cambridge: Cambridge University Press, 1999) at xiii.CrossRefGoogle Scholar

² James Crawford, “Foreward,” in ibid, at ix.

³ Byers, supra note 1 at 53–126. Canadian readers are likely to find special interest in Byers’s complete discussions of the 1970 Arctic Waters Pollution Prevention Act, which is now consolidated in [1985] RSC 1, c. A-ia, pp. ga-5 and 100-1 and the Act to Amend the Coastal Fisheries Protection Act, [ 1994] SC, c. 14, pp. 97101 — two exercises of Canadian jurisdiction that arguably undercut the country’s consistent objection to United States assertions of extra-territoriality.

⁴ Byers, supra note 1 at 7.

⁵ Ibid, at 5–6.

⁶ Ibid, at 9–10.

⁷ Ibid, at 147.

⁸ Ibid, at 13–15 and 216–21.

⁹ Morgenthau, Hans, Politics among Nations, 2d ed. (New York: Alfred Knopf, 1954)Google Scholar; Waltz, Kenneth, Theory of International Politics (New York: McGraw-Hill, 1979).Google Scholar I do not think that Byers is careful enough to distinguish between the strands of classical realism represented by Morgenthau and neo-realism delineated by Waltz. See Katzenstein, Peter J., Keohane, Robert O., and Krasner, Stephen J., “International Organization and the Study of World Politics” (1998) 52 Int’l Org. 645 at 653, and 658–62Google Scholar; and Martin, Lisa L. and Simmons, Beth, “Theories and Empirical Studies of International Institutions” (1998) 52 Int’l Org. 729.CrossRefGoogle Scholar

¹⁰ Byers, supra note 1 at 13.

¹¹ Ibid, at 13–15. It is important to specify that the consent-based theory that Byers proposes is attenuated by the assumption that consent to be bound by custom may take place in general and need not be assessed in relation to each rule. See also ibid, at 142–46.

¹² Ibid, at 14–15.

¹³ The power of realism and rationalism is well captured in Katzenstein et al., supra note 9. “Rationalism” is used to encompass neo-realist theorists, who explain the behaviour of states by emphasizing their autonomous rational assessment of individuated interests and neo-liberals who posit the behavioural influence of formal and informal institutions upon states.

¹⁴ See Ruggie, John Gerard, “What Makes the World Hang Together? Neo-Utilitarianism and the Social Constructivist Challenge” (1998) 52 Int’l Org. 855 CrossRefGoogle Scholar; Wendt, Alexander, “The Agent-Structure Problem in International Relations Theory” (1987) 41 Int’l Org. 335 CrossRefGoogle Scholar; and Wendt, Alexander, “Collective Identity Formation and the International State” (1994) 88:2 Am. Pol. Sci. Rev. 384.CrossRefGoogle Scholar

¹⁵ Byers, supra note 1 at 218: “Realism purports, above all, to describe things as they are, which is precisely the task an interdisciplinary approach also seeks to facilitate.”

¹⁶ Wendt, “Collective Identity Formation,” supra note 14 at 393: arguing that the essence of realism is materialism, “not a willingness to confront the ugliness of world politics as its proponents would have it.” On the need to remain open to plural explanations of international politics, see Wendt, , “Anarchy Is What States Make of It: The Social Construction of Power Politics” (1992) 46 Int’l Org. 391 at 423–4CrossRefGoogle Scholar and Ruggie, supra note 14 at 882.

¹⁷ Byers, supra note 1 at 217 [emphasis in original].

¹⁸ Wendt, , “Anarchy is What States Make of It,” supra note 16 at 412 Google Scholar; and Ruggie, supra note 14 at 870.

¹⁹ See Kelsen, Hans, General Theory of Law and State (New York: Russell and Russell, 1961).Google Scholar

²⁰ Byers, supra note 1 at a 18.

²¹ Ibid. at 8, following Fitzmaurice, Gerald, “The Foundations of the Authority of International Law and the Problem of Enforcement” (1956) 19 Modern Law Review 1 at 9,CrossRefGoogle Scholar who argues that consent cannot itself be the basis of obligation, but must rest on some underlying foundation. It is not at all far-fetched to imagine generalized consent as being the basis of a legal system. Such an idea finds expression in social contract theory and even, potentially, in the “grundnorm” of Kelsen or the rule of recognition of H.L.A. Hart. See Kelsen, supra note 19 and Hart, H. L. A., The Concept of Law (Oxford: Clarendon Press, 1961).Google Scholar I do not accept this explanation, but I think that Byers does, even though he does not say so expressly. How else could one explain the persistence of consent in his analysis and his refusal to question consent in any precise way during his reconsideration of assumptions? See Byers, supra note 1 at 14 and 21. The best evidence of Byers’s complete reliance upon the explanatory power of consent in the creation of international law is found in his excellent discussion of legitimate expectations. In an aside, he suggests that the principle of legitimate expectations may well underlie all rules of international law. This assertion can only make sense in a universe in which states are bound only by that to which they consent. Otherwise, rules could be imposed upon states even when they did not expect them to apply, on a basis analogous to “ignorance of the law is no excuse.” For a detailed discussion of various theories of law in their international application, see Jutta Brunnée and Stephen J. Toope, “International Law and Constructivism: Elements of an Interactional Theory of International Law” (forthcoming 2000).

²² Wendt, Collective Identity Formation, supra note 14 at 384 and 393; and Ruggie, supra note 14 at 855. Both argue that these traits are also characteristic of neoliberal institutionalists, such as Robert Keohane. See Keohane, Robert, “The Analysis of International Regimes,” in Rittberger, Volker, ed., Regime Theory and International Relations (Oxford: Clarendon Press, 1993) at 23.Google Scholar

²³ Byers, supra note 1: “States act in more-or-less self-interested ways and … the primary way in which they promote their self-interest is through applications of power” (at 14); “In some ways, the process of customary international law is like a negotiating process in which States seek to maximize their interests by offering the same rights to others that they seek for themselves” (at 101); and accepting the analytical power of the interest analysis pursued by Myres McDougal and other members of the New Haven School (at 208).

²⁴ Ibid.: “[Τ] he customary process operates to maximise the interests of most if not all States by creating rules which protect and promote their common interests” (at 19); see also 147–57, and 163.

²⁵ Ibid, at 88–9.

²⁶ For a detailed discussion of relational approaches to legal normativi ty, see Brun-née and Toope, supra note 21.

²⁷ Katzenstein et al., supra note g at 647 and 678–80. The term “constructivism” was first used by Nicholas Onuf in the late 1980s. See Greenwood Onuf, Nicholas, World of Our Making: Rules and Rule in Sodai Theory (Columbia, SC: University of South Carolina Press, 1989) at Chapter 1.Google Scholar

²⁸ For excellent introductions, see Greenwood Onuf, Nicholas, “Constructivism: A User’s Manual,” in Kubàlkovà, Vendulka, Greenwood Onuf, Nicholas, and Kowert, Paul, eds, International Relations in a Constructed World (Armonk, N.Y.: M.E. Sharpe, 1998) 58 Google Scholar; Ruggie, supra note 14; and Wendt, “Collective Identity Formation,” supra note 14.

²⁹ See, for example, Finnemore, Martha, National Interests in International Society (Ithaca, NY: Cornell University Press, 1996)Google Scholar; Finnemore, Martha, “International Organizations as Teachers of Norms: The United Nations Education, Scientific and Cultural Organization and Science Policy” (1993) 47 Int’l Org. 565 CrossRefGoogle Scholar; and Adler, Emanuel, “Imagined (Security) Communities: Cognitive Regions in International Relations” (1997) 26 Millenium: J. Int’l Stud. 249.CrossRefGoogle Scholar

³⁰ Byers is both lucky and unlucky in the timing of his book. He rides the crest of a wave of interest in the interplay between international law and IR theory. See, for example, Slaughter Burley, Anne-Marie, “International Law and International Relations: A Dual Agenda” (1993) 87 Am. J. Int’l L. 204 Google Scholar; Slaughter, Anne-Marie, Tulumello, Andrew S., and Wood, Stepan, “International Law and International Relations Theory: A New Generation of Interdisciplinary Schol-arship” (1998) 92 Am. J. Int’l L. 367 CrossRefGoogle Scholar; and Arend, Anthony Clark, “Do Legal Rules Matter? International Law and International Politics” (1998) 38 Virginia J. Int’ 1 L. 125 Google Scholar. Byers’s review of realism, neo-liberal institutionalism, and regime theory generally is engaging and thoughtful. Yet his sources begin to thin out as of 1996–97, just as an explosion of new treatments of the subject began to find their way out of publishing houses and journal offices.

³¹ Byers, Supra note 1 at 151.

³² Ibid, at 19

³³ Ibid, at 141, 148–49, and 205. Constructivism does indeed trace its roots to the sociological theories of Weber and Durkheim. See Ruggie, supra note 14 at 857–62. The most direct inspiration from sociology is the structuration theory of Anthony Giddens. See Giddens, Anthony, The Constitution of Society (1984), especially at 281–84Google Scholar (where he summarizes a complex set of arguments). However, other constructivists are more directly inspired by the philosophy of language and communications, notably the work of Jürgen Habermas. See Habermas, Jürgen, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, translated by Rehg, William (Cambridge, MA: MIT Press, 1996)Google Scholar; and Habermas, Jürgen, Moral Consciousness and Communicative Action, translated by Lenhart, Christian and Nicholson, Shierry Weber (Cambridge, MA: MIT Press, 1990).Google Scholar

³⁴ Byers, supra note 1 at 152.

³⁵ See, for example, Alexander Wendt, quoted in ibid., who argues that “[a]n institution is a relatively stable set or ‘structure’ of identities and interests. Such structures are often codified in formal rules and norms, but they have motivational force only in virtue of actors’ [i.e., states’] socialization to and participation in collective knowledge” (at 148) [emphasis added].

³⁶ Byers, supra note 1 at 3, 49, 129–30, and 210. I am in full agreement with this point and therefore find it surprising that Byers would adopt the definition of “institution” offered by Robert Keohane and apply it to customary international law. Keohane’s definition is “purely sociological.” See ibid, at 147 and 154. It seems that it is Keohane’s neo-liberal focus upon state interests that attracts Byers. See Keohane, Robert, “Neoliberal Institutionalism: A Perspective on World Politics,” in Keohane, Robert, ed., International Institutions and State Power (Boulder, CO: Westview Press, 1989) at 2–3.Google Scholar For an alternative approach to upholding the relative autonomy of the law, see Brunnée and Toope, supra note 21.

³⁷ Byers, supra note 1 at 8–9, 19–20, and 89.

³⁸ This is the burden of the entire second part of the book. See ibid, at 53–126. See also pp. 33–4.

³⁹ Ibid, at 16, 35, and 39.

⁴⁰ See Finnemore, Martha and Sikkink, Kathryn, “International Norm Dynamics and Political Change” (1998) 52 Int’l Org. 887;CrossRefGoogle Scholar and Brunnée and Toope, supra note 21.