Kyle Rapp

Ph.D. Candidate

Working Papers (Available Upon Request)

The Power of Law: Legal Rhetoric, Human Rights, and the Universal Periodic Review
(Under Review)

What is the language of effective human rights argumentation? When challenging a state’s human rights practices, actors can draw on a range of discursive options from the ethical and moral to the political and legal. Current research on human rights argumentations highlights the strategic use of rhetoric to create political outcomes largely on a case-by-case basis. However, little scholarship to date has applied quantitative methodologies to systematically analyze the use of law-based arguments, and their acceptance or rejection, in global human rights argumentation. This study uses data on all recommendations made at the first two cycles of the Universal Periodic Review, a United Nations mechanism by which all states are reviewed regularly on their human rights practices. Using an original coding of legal and nonlegal recommendations, I show that legal claims have the greatest likelihood of success, outperforming nonlegal arguments. Elite interviews are then used to determine how actors understand, employ, and interpret legal arguments. These findings deepen our understand of why actors employ legal rhetoric, how international legal arguments are understood in human rights, and the broader strategic uses of rhetoric in international law and international relations.

Who States Up for the ICC? Explaining State Responses to U.S. Sanction Threats, with M.P. Broache (UNC-Greensboro)
(Revise & Resubmit)

On June 11, 2020, U.S. President Donald Trump issued an executive order authorizing sanctions against International Criminal Court (ICC) officials and their families. This order directly followed the authorization by the ICC Appeals Chamber, in March 2020, of an investigation into the situation in Afghanistan, including alleged war crimes involving American forces. Within ten days of the announcement of the executive order, 22 ICC States Parties issued individual statements directly condemning the U.S. sanctions and/or expressing support for the Court. Then, on June 23, 2020, a group of 67 States Parties (including all 22 that had issued individual statements) released a collective statement affirming “unwavering support for the Court as an independent and impartial judicial institution.” Even so, this constituted just slightly over half of the Court’s 123 States Parties. Why did some ICC States Parties condemn the U.S. sanctions or otherwise express support for the Court while others did not? This paper explores this question by first documenting variation in the content, format, and timing of statements concerning U.S. sanctions. We then propose and test a series of hypotheses to explain this variation, focusing on factors such as susceptibility to U.S. pressure and domestic rule of law, inter alia. We find that domestic rule of law is the main factor driving states decision to speak out – outweighing material concerns and security dependence on the U.S., contributing to broader understandings about the motivations for – and roles of – public statements in international relations, as well as scholarship on the development of the ICC.

Subject or Skill? Teaching (and Learning) International Law in International Relations
(Under Review)

How should international law be taught in international relations graduate programs? Substantively, international law and international relations overlap on a range of topics and IR graduate students are often interested in studying - and analyzing - questions related to international law. However, time constraints mean that a student may be lucky to have a single semester-long course dedicated to international law. Given this tension between substantive interest and limited time, how should IL be taught in IR graduate programs? In contrast to traditional approaches that focus on the substantive areas of international law and its role as a variable in global politics, this paper argues for a skills-based approach focused on the skills needed to interpret international law and engaging with how IL is used and understood by practitioners. This may, in turn, allow IR scholars to engage more deeply with international law in their research, better equip scholars for long-term study, and allow for greater interdisciplinary engagement between the fields of law and international relations.

Citations and Legal Reasoning at the International Criminal Court, with Joshua Turner (University at Buffalo)

How does the International Criminal Court justify its decisions? Given the ICC's range of applicable law - from the Rome Statute to codified and uncodified international law and even domestic standards - how does the court justify its decisions, what references do they make, and what might this mean for the Court's effectiveness? To address this question, this paper examines the legal references and citations made by the ICC in its verdicts, focusing on one central question – are some categories of law cited more than others? This paper argues that we should expect the ICC to draw more heavily on codified references over uncodified principles and international standards over regional or domestic standards. Doing so may allow the ICC to more broadly justify its decisions, connecting its rulings to international standards as a way to build legitimacy. This paper elaborates on the nature of legal references at the ICC, and how these references may help or hinder the court's development. At the same time, the ICC’s unique combination of domestic and international legal references allows for new theorizing as to how these bodies of law are drawn together - and pitted against each other - in international criminal law.

On What Grounds? Legal References and Reasoning at the International Criminal Court
(Revise & Resubmit)

What makes an argument effective at the International Criminal Court? Given the ICC's range of applicable law – from the Rome Statute to codified and customary international law and even domestic standards – how do the prosecution and defense craft their arguments, what references do they make, and what effect does this have on the success or failure of their arguments? To address these questions, this paper examines the legal references made by the prosecution and defense at the ICC in their arguments before the court, focusing on two questions. What sources do the prosecution and defense base their arguments on and are some references more effective in shaping the court's decisions? In short - what makes an effective argument at the ICC? This paper argues that arguments with more codified references will be preferred and that international references will succeed over domestic ones. This paper elaborates on the role of legal references in shaping effective argumentation at the ICC, and in international courts more broadly. At the same time, the ICC’s unique combination of domestic and international legal references allows for new theorizing as to how these bodies of law are drawn together - and pitted against each other - in international criminal law, in particular by highlighting how the ICC's judgments mix legal reasoning from the a range of sources, presented by both the prosecution and defense, with important implications for the development of international criminal law.

Constructing Compliance: Creating Legal Meaning in the 1949 Geneva Conventions

What does compliance mean in international law and how is this meaning constructed? At its core, international law represents standards that states and other actors are expected to comply with in their words and deeds, shaping how international relations are constituted and carried out. But how do actors decide what behaviors or words comply with international law and which ones are forbidden? Drawing on theories of rhetoric and compliance in international law, this paper argues that compliance is often a spectrum where many behaviors may be arguably compliant at any given time, but that the scope of this spectrum is open to construction and contestation by states and other actors. In particular, when drafting a treaty, actors have a unique opportunity to construct the meaning of compliance. Drawing on qualitative and quantitative text analysis approaches, this paper analyzes how actors constructed – through repeated social interactions and argumentation – the scope, or meaning, of compliance with the 1949 Geneva Conventions. In doing so, this paper illustrates how argumentation and social interaction are key to constructing and reconstructing the meaning of compliance in international law, challenging binary views of compliance, and calling attention to the different scopes of compliance contained even within the same treaty.

Selected Works in Progress

Rapp, K. (2021). Social Media and Genocide: The Case for Home State Responsibility. Forthcoming, Journal of Human Rights

Who bears responsibility when social media platforms are used to incite genocide? While courts and scholarship have recognized the role of mass media in past mass atrocities, social media poses a unique challenge. Its transnational nature, with companies and infrastructure often located in different jurisdictions from where the crimes are committed, makes determining responsibility challenging. This article argues that the prohibition of genocide obligates home states - those where companies are headquartered - to act in such cases. In particular, home states may be obligated to restrict social media access in the state in question and are permitted to do so under the laws of state responsibility. Finally, this paper discusses how possible domestic or international arrangements may be used to realize these obligations and the relative merits of each. A discussion of Myanmar demonstrates how these domestic and international options may function and emphasizing the urgency of the question.

The Myth of Selection: The Language of Justification in Case Study Research

Picking cases is central to case study research, shaping the inferences that we might draw from the analysis and how we might apply them to a broader population. To structure the process of identifying cases, a significant body of methodological work has explored the idea of case selection – outlining various criteria for identifying cases within a population based on different sets of criteria. While different approaches to case selection draw on differing logics, they offer a similar promise – to help the researcher choose cases based on a set of rules and standards, reducing the risk of bias. While these techniques have much to offer, this paper argues that the language of case selection is misleading as it minimizes the realities of how a researchers positionality shapes the cases they may choose. Instead, a language of justification – one that recognizes the limitations the research faces in picking cases and which situates the chosen cases not just in a language of selection but also reflexivity – offers a more honest language for discussing case study research.

Bipartisanship in U.S. Foreign Policy: Explaining Congressional Criticism of the International Criminal Court, with M.P. Broache (UNC-Greensboro)

In May 2020, bipartisan groups of U.S. representatives (91 Democrats, 171 Republicans) and senators (26 Democrats, 43 Republicans) joined public letters criticizing the International Criminal Court (ICC) for proceeding with inquiries in Afghanistan, including allegations of war crimes by U.S. military personnel, and Palestine, covering alleged war crimes by nationals of Israel, a close American ally. While smaller groups of legislators—all Democratic members—issued statements defending the ICC, the bipartisan criticism of the Court was particularly notable, given the significant polarization in American domestic politics. Why did some U.S. legislators—across party lines—join statements criticizing the ICC, while some defended the Court, and many others said nothing? We develop a theory focused on the interaction of constituency-level characteristics, including military population and electoral competitiveness, and the individual legislator’s ideology and national-level profile, to address these questions. We test this theory using original data on public statements on the ICC by U.S. legislators in May 2020 and around other key developments in the U.S.-ICC relationship. Our analysis has implications for understanding the sources of U.S. policy toward the ICC and international organizations, as well as the broader domestic determinants of, and the role of Congress in U.S. foreign policy.

What Regulatory Framework Prevails? Evidence from the EU-Mercosur Trade Negotiations, with Nicolas Albertoni (Universidad Católica del Uruguay) & Sebastián Vallejo (University of Houston)

When regional groups enter trade negotiations, what texts do they draw on? Previous scholarship has noted the importance of text in trade agreements as a reflection of the relative power of the parties, with more powerful actors securing more favorable texts in final agreements. What happens when negotiations occur between two large regional groups? Using a text-as-date approach, we analyze negotiations between the European Union and Mercosur to see if there is an EU or Mercosur 'way' to creating trade negotiations, or if disputes are instead resolved by borrowing text from WTO agreements. In doing so, we contribute to scholarship on trade agreements and negotiations, as well as literatures on the creation and structure of international agreements, emphasizing the importance of reference texts in resolving trade disagreements.