University of California at Berkeley School of law nternational law A Compliance based Theor by Andrew T Guzman UC Berkeley School of Law Public Law and Legal Theory Working Paper No 47 pril 2001 UC Berkeley Public law and Legal Theory Working Paper Series UC Berkeley School of Law, Boalt Hall, Berkeley, CA 94720-7200 This paper can be downloaded without charge from the Social Science Research Network Paper Collection at http://papers.ssrn.com/paper.taf?abstractid=260257
University of California at Berkeley School of Law International Law: A Compliance Based Theory by Andrew T. Guzman UC Berkeley School of Law Public Law and Legal Theory Working Paper No. 47 April 2001 UC Berkeley Public Law and Legal Theory Working Paper Series UC Berkeley School of Law, Boalt Hall, Berkeley, CA 94720-7200 This paper can be downloaded without charge from the Social Science Research Network Paper Collection at http://papers.ssrn.com/paper.taf?abstract_id=260257
INTERNATIONAL LAW A COMPLIANCE BASED THEORY Andrew T Guzman p Assistant Professor of Law, Boalt Hall School of Law, University of California at Berkeley. I owe thanks to David Caron, Stephen Choi, Jack Goldsmith, Benedict Kingsbury, Eric Posner, Beth Simmons, John Yoo, and participants at the Boalt Hall International Law and Politics Workshop for helpful discussions and comments. Special thanks to Jeannie Sears and Nicholas James Ryan Waterman provided excellent research assistance. I am grateful to the John M. Olin Foundation for financial assistance. Contact: guzman @law. berkeley. edu
INTERNATIONAL LAW: A COMPLIANCE BASED THEORY Andrew T. Guzman* April 2001 * Assistant Professor of Law, Boalt Hall School of Law, University of California at Berkeley. I owe thanks to David Caron, Stephen Choi, Jack Goldsmith, Benedict Kingsbury, Eric Posner, Beth Simmons, John Yoo, and participants at the Boalt Hall International Law and Politics Workshop for helpful discussions and comments. Special thanks to Jeannie Sears and Nicholas James. Ryan Waterman provided excellent research assistance. I am grateful to the John M. Olin Foundation for financial assistance. Contact: guzman@law.berkeley.edu
Abstract This Article examines international law from the perspective of compliance Using insights from international relations theory, the article adopts a theory in which compliance comes about in a model of rational, self-interested states. Specifically, states are concerned about both reputational and direc t sanctions tor their conduct The model allows us to consider international law in a new strikingly, one is forced to reconsider two of the most fundamental doctrinal points in the field -the definitions of customary international law( CIL) and of international law itself. A reputational model of compliance makes it clear that Cil affects the behavio of a state because other states believe that the first state has a commitment that it must honor. A failure to honor that commitment hurts a state's reputation because it signals that it is prepared to breach its obligations. This implies a definition that turns on the existence of an obligation in the eyes of other states rather than the conventional requirements of state practice and a sense of legal obligation felt by the breaching state Classical definitions of international law look to two primary sources of law treaties and CIL. A reputational theory, however, would label as international law any commitment that materially alters state incentives. This includes agreements that fall hort of the traditional definition, including what is often referred to as "soft law. "The Article points out that there is no way to categorize treaties and Cil as " law"without also including soft law. Agreements such as ministerial accords or memoranda of understanding represent commitments by a state which, if breached, will have a reputational impact. For this reason, these soft law agreements should be included in the definition of international law The Article also calls for a refocusing of international law scholarship. Because international law works through reputational and direct sanctions, we must recogni that these sanctions have limited force. As a result, international law is more likely to have an impact on events when the stakes are relatively modest. The implication is that many of the topics that receive the most attention in international law- the laws of war territorial limits, arms agreements, and so on - are unlikely to be affected by international law. On the other hand, issues such as international economic matters, environmental issues, and so on, can more easily be affected by international law. This suggests that the international law academy should focus greater attention on the latter subjects and less on th e former
Abstract This Article examines international law from the perspective of compliance. Using insights from international relations theory, the Article adopts a theory in which compliance comes about in a model of rational, self-interested states. Specifically, states are concerned about both reputational and direct sanctions for their conduct. The model allows us to consider international law in a new light. Most strikingly, one is forced to reconsider two of the most fundamental doctrinal points in the field – the definitions of customary international law (CIL) and of international law itself. A reputational model of compliance makes it clear that CIL affects the behavior of a state because other states believe that the first state has a commitment that it must honor. A failure to honor that commitment hurts a state’s reputation because it signals that it is prepared to breach its obligations. This implies a definition that turns on the existence of an obligation in the eyes of other states rather than the conventional requirements of state practice and a sense of legal obligation felt by the breaching state. Classical definitions of international law look to two primary sources of law – treaties and CIL. A reputational theory, however, would label as international law any commitment that materially alters state incentives. This includes agreements that fall short of the traditional definition, including what is often referred to as “soft law.” The Article points out that there is no way to categorize treaties and CIL as “law” without also including soft law. Agreements such as ministerial accords or memoranda of understanding represent commitments by a state which, if breached, will have a reputational impact. For this reason, these soft law agreements should be included in the definition of international law. The Article also calls for a refocusing of international law scholarship. Because international law works through reputational and direct sanctions, we must recognize that these sanctions have limited force. As a result, international law is more likely to have an impact on events when the stakes are relatively modest. The implication is that many of the topics that receive the most attention in international law – the laws of war, territorial limits, arms agreements, and so on – are unlikely to be affected by international law. On the other hand, issues such as international economic matters, environmental issues, and so on, can more easily be affected by international law. This suggests that the international law academy should focus greater attention on the latter subjects and less on the former
INTERNATIONAL LAW: A COMPLIANCE BASED THEORY Ⅰ. INTRODUCTION.… IL. EXISTING THEORIES OF INTERNATIONAL LAW A. Traditional Legal Theories B. International Relations Theories IIL. A THEORY OF COMPLIANCE 6389 A. A Theory of the Irrelevance of International Law.. B. A Model of International Law C. Applying the Model-Bilateral Investment Treaties D DynamIc Issues E. The Level of Commitment F. International Law and Coordination I VIOLATION AND COMPLIANCE A. Reputational Sanctions B. Direct sanctions C. When Will Sanctions Work best? D. Acceptance of Sanctions V RETHINKING INTERN ATIONAL LAW A. Treaties B. A New Definition of Customary International Law C. A New Definition of international law ......... 60 D. Revisiting Existing Theories E. The Problem of Large Stakes... VI CONCLUSION
INTERNATIONAL LAW: A COMPLIANCE BASED THEORY I. INTRODUCTION.............................................................................1 II. EXISTING THEORIES OF INTERNATIONAL LAW.................5 A. Traditional Legal Theories ..........................................................6 B. International Relations Theories................................................13 III. A THEORY OF COMPLIANCE.................................................18 A. A Theory of the Irrelevance of International Law.....................19 B. A Model of International Law...................................................22 C. Applying the Model – Bilateral Investment Treaties.................29 D. Dynamic Issues..........................................................................31 E. The Level of Commitment.........................................................34 F. International Law and Coordination ..........................................36 IV. VIOLATION AND COMPLIANCE...........................................40 A. Reputational Sanctions..............................................................40 B. Direct Sanctions.........................................................................45 C. When Will Sanctions Work Best? .............................................49 D. Acceptance of Sanctions............................................................51 V. RETHINKING INTERNATIONAL LAW...................................53 A. Treaties ......................................................................................53 B. A New Definition of Customary International Law ..................54 C. A New Definition of International Law.....................................60 D. Revisiting Existing Theories .....................................................65 E. The Problem of Large Stakes.....................................................68 VI. CONCLUSION............................................................................72
I INTRODUCTION International law scholarship has only just begun to feel the influence of the sort of interdisciplinary research that has revolutionized much of the legal academy. Starting with Professor Abbott's 1989 article, Modern Intemational Relations Theory: A Prospectus for Intenational lawyers, scholars with interests in international relations and economics have begun to apply the tools of these other disciplines to international law he resulting scholarship has presented international law in a new light, and posed new hallenges for traditional international law scholars Most legal scholars and practitioners believe that international law matters in the sense that it affects the behavior of states. Conventional theories advanced by legal cholars, however, are considered flawed because they are difficult to reconcile with modern international relations theory, rely heavily on axiomatic claims about national behavior, and lack a coherent theory of compliance with international law. It is fair to say that most conventional international law scholarship does not ask why there is compliance but rather simply assumes as much. International relations theory, on the other hand, offers a set of competing theories and a more satisfying account of nationa behavior. These theories are often skeptical of the role international law has to play in Kenneth W. Abbott, Modern Intemational Relations Theory: A Prospectus for Intenational Lawyers, 14 YALE J. INT'L L 335(1989)(hereinafter Prospectus The most prominent interdisciplinary articles include Kenneth W. Abbott, Intemational Relations Theory, Intemational Law, and the Regime Governing Atrocities in Internal Conflicts, 93 AM. J. INT'L L 361( 1999); Anne-Marie Slaughter, Andrew S. Tulumello Stepan Wood, Intemational Law and Intenational Relations Theory: A New Generations of Interdisciplinary Scholarship, 93 AM. J. NT'L L. 367 (1998); Anne-Marie Slaughter Burley, Intenational Law and International Relations Theory: A Dual Agenda, 87 AM.J. NT'L L. 205(1993); hck L. Goldsmith Eric A. Posner, A Theory of Customary Intemational Law, 66 U. CHI. L. REV. 1113(1999); Jeffrey L. dunoff Joel P. Trachtman, Economic Analysis of Intemational Law, 24 YALE J. NT'L L. 1(1999); John K. Setear, An Iterative Perspective on Treaties: A Synthesis of Intenational Relations Theory and Intenational Law, 37 HARV. J. NT'L L. 139(1996); Harold Koh, Why Do Nations Obey Intemational Law?, 106 YALE L J 2599(1997); John K. Setear, Responses Breach of a Treaty and Rationalist Intenational Relations Theory: The Rules of release and Remediation in the Law of treaties and the Law of state V. 1(1997): Edwin M. Sn Understanding Dynamic Obligations: Arms Control Agreements, 64 S. CAL. L REV. 1549(1991). In ddition, a recent issue of INTERNATIONAL ORGANIZATIONS (Summer 2000)is devoted to an international relations approach to questions of international law 3 See LOUIS HENKIN, HOW NATIONS BEHAVE 46-48(1979); Abram Chayes antonia Chayes, On Compliance, 47 INT'L ORG. 175, 4 See e.g., ABRAM CHAYES ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS 3(1995)(foreign policy practitioners operate on the assumption of a general propensity of states to comply with international obligations")
I. INTRODUCTION International law scholarship has only just begun to feel the influence of the sort of interdisciplinary research that has revolutionized much of the legal academy. Starting with Professor Abbott’s 1989 article, Modern International Relations Theory: A Prospectus for International Lawyers, 1 scholars with interests in international relations and economics have begun to apply the tools of these other disciplines to international law.2 The resulting scholarship has presented international law in a new light, and posed new challenges for traditional international law scholars. Most legal scholars and practitioners believe that international law matters in the sense that it affects the behavior of states.3 Conventional theories advanced by legal scholars, however, are considered flawed because they are difficult to reconcile with modern international relations theory, rely heavily on axiomatic claims about national behavior, and lack a coherent theory of compliance with international law. It is fair to say that most conventional international law scholarship does not ask why there is compliance but rather simply assumes as much.4 International relations theory, on the other hand, offers a set of competing theories and a more satisfying account of national behavior. These theories are often skeptical of the role international law has to play in 1 Kenneth W. Abbott, Modern International Relations Theory: A Prospectus for International Lawyers, 14 YALE J. INT’L L. 335 (1989) (hereinafter Prospectus). 2 The most prominent interdisciplinary articles include Kenneth W. Abbott, International Relations Theory, International Law, and the Regime Governing Atrocities in Internal Conflicts, 93 AM. J. INT’L L. 361 (1999); Anne-Marie Slaughter, Andrew S. Tulumello & Stepan Wood, International Law and International Relations Theory: A New Generations of Interdisciplinary Scholarship, 93 AM. J. INT’L L. 367 (1998); Anne-Marie Slaughter Burley, International Law and International Relations Theory: A Dual Agenda, 87 AM. J. INT’L L. 205 (1993); Jack L. Goldsmith & Eric A. Posner, A Theory of Customary International Law, 66 U. CHI. L. REV. 1113 (1999); Jeffrey L. Dunoff & Joel P. Trachtman, Economic Analysis of International Law, 24 YALE J. INT’L L. 1 (1999); John K. Setear, An Iterative Perspective on Treaties: A Synthesis of International Relations Theory and International Law, 37 HARV. J. INT’L L. 139 (1996); Harold H. Koh, Why Do Nations Obey International Law?, 106 YALE L.J. 2599 (1997); John K. Setear, Responses to Breach of a Treaty and Rationalist International Relations Theory: The Rules of Release and Remediation in the Law of Treaties and the Law of State Responsibility, 83 VA. L. REV. 1 (1997); Edwin M. Smith, Understanding Dynamic Obligations: Arms Control Agreements, 64 S. CAL. L. REV. 1549 (1991). In addition, a recent issue of INTERNATIONAL ORGANIZATIONS (Summer 2000) is devoted to an international relations approach to questions of international law. 3 See LOUIS HENKIN, HOW NATIONS BEHAVE 46-48 (1979); Abram Chayes & Antonia Chayes, On Compliance, 47 INT’L ORG. 175, 176 (1993). 4 See e.g., ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY: COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS 3 (1995) (“foreign policy practitioners operate on the assumption of a general propensity of states to comply with international obligations”)
Compliance-Based Theory the governance of the international system, and often ignore "international law altogether To date, neither conventional international law scholars, nor those adopting an international relations approach, has presented a satisfactory model that is capable of explaining why states comply with international law in some circumstances and violate it in others. International law scholarship assumes a high level of compliance and provides little theoretical framework within which to examine the compliance decision while international relations scholars largely ignore the role of international law in national decision making. The failure to understand the compliance decision is troubling because compliance is one of the most central questions in international law Without a theory of compliance, we cannot examine the role of treaties, customary international law, of other agreements. Nor can we consider how to improve the functioning of the international legal system, or develop a workable theory of international legal and regulatory cooperation This Article uses the insights of international relations scholarship to address the question of compliance. Unlike traditional international law scholarship, the Article adopts a comprehensive theory in which compliance with international law comes about in a model of rational, self-interested states. Compliance exists because states are concerned with the reputational implications and the direct sanctions of violating the law. The model explains not only why nations comply, but also why and when they violate international law. Using the tools of international relations theory and See Beth A. Simmons, Money and the Law: Why Comply with the Public International Law of Money?, 25 YALE J. NT'L L. 323, 323-24(2000)("ILlegal scholars and practitioners believe that the rules at the center of their analysis do indeed matter Scholars of international relation have been far more skeptical. ") George W. Downs, et. al, Is the Good News About Compliance Good News About Cooperation?, 50 INT'L ORG. 379(199 6 See MICHAEL BYERS, CUSTOM. POWER AND THE POWER OF RULES: INTERNATIONAL RELATIONS AND CUSTOMARY INTERNATIONAL LAW 8(1999)(International Relations scholars have traditionally had little time for such questions. Instead, they have regarded international law as something of an epiphenomena, with rules of international law being dependent on power, subject to short-term alteration by power-applying states, and therefore of little elevance to how states actually behave.”) 7 See, e.g., Robert O. Keohane, International Relations and Intemational Law: Two Optics, 38 HARV. INT'L L J. 487, 491( 1997)("We do not yet have a well d or empirically teste instrumentalist theory of compliance with international commitments. ") Beth A. Simmons, Compliance with Intenational Agreements, 1 Al V. POL. SCI. 75, 76( 1998)("far less attention has been devoted to understanding why governments actually comply with such agreements. ); Koh, supra note 2, at 2599 (Why do nations obey international law? This remains among the most perplexing questions in international relations. " ) Thomas M. Franck, Legitimacy in the International System, 82 AM. J. INT'L L. 705, 705(1988)(" The surprising thing about international law is that nations bey its strictures our its mandates. ");Benedict Kingsbury, The Concept of Compliance as a Function of competing Conceptions of International Law, 19 MICH. J. NT'L L 345, 345( 1998)("Compliance'is one of the central concepts in current and proposed research projects using social science methods to study the effect and significan international law. " 2
Compliance-Based Theory 2 the governance of the international system,5 and often ignore “international law” altogether.6 To date, neither conventional international law scholars, nor those adopting an international relations approach, has presented a satisfactory model that is capable of explaining why states comply with international law in some circumstances and violate it in others.7 International law scholarship assumes a high level of compliance and provides little theoretical framework within which to examine the compliance decision while international relations scholars largely ignore the role of international law in national decision making. The failure to understand the compliance decision is troubling because compliance is one of the most central questions in international law. Without a theory of compliance, we cannot examine the role of treaties, customary international law, of other agreements. Nor can we consider how to improve the functioning of the international legal system, or develop a workable theory of international legal and regulatory cooperation. This Article uses the insights of international relations scholarship to address the question of compliance. Unlike traditional international law scholarship, the Article adopts a comprehensive theory in which compliance with international law comes about in a model of rational, self-interested states. Compliance exists because states are concerned with the reputational implications and the direct sanctions of violating the law. The model explains not only why nations comply, but also why and when they violate international law. Using the tools of international relations theory and 5 See Beth A. Simmons, Money and the Law: Why Comply with the Public International Law of Money?, 25 YALE J. INT’L L. 323, 323-24 (2000) (“[L]egal scholars and practitioners believe that the rules at the center of their analysis do indeed matter . . . . Scholars of international relations . . . have been far more skeptical.”); George W. Downs, et. al., Is the Good News About Compliance Good News About Cooperation?, 50 INT’L ORG. 379 (1996). 6 See MICHAEL BYERS, CUSTOM, POWER AND THE POWER OF RULES: INTERNATIONAL RELATIONS AND CUSTOMARY INTERNATIONAL LAW 8 (1999) (“International Relations scholars have traditionally had little time for such questions. Instead, they have regarded international law as something of an epiphenomena, with rules of international law being dependent on power, subject to short-term alteration by power-applying states, and therefore of little relevance to how states actually behave.” ) 7 See, e.g., Robert O. Keohane, International Relations and International Law: Two Optics, 38 HARV. INT’L L. J. 487, 491 (1997) (“We do not yet have a well-specified or empirically tested instrumentalist theory of compliance with international commitments.”); Beth A. Simmons, Compliance with International Agreements, 1 ANN. REV. POL. SCI. 75, 76 (1998) (“far less attention has been devoted to understanding why governments actually comply with such agreements.”); Koh, supra note 2, at 2599 (“Why do nations obey international law? This remains among the most perplexing questions in international relations.”); Thomas M. Franck, Legitimacy in the International System, 82 AM. J. INT’L L. 705, 705 (1988) (“The surprising thing about international law is that nations ever obey its strictures or carry our its mandates.”); Benedict Kingsbury, The Concept of Compliance as a Function of Competing Conceptions of International Law, 19 MICH. J. INT’L L. 345, 345 (1998) (“‘Compliance’ is one of the central concepts in current and proposed research projects using social science methods to study the effect and significance of international law.”)
Compliance-Based Theory economics, the article focuses explicitly on international law, explaining why countries care about it, and why they will expend resources in order to avoid violating it(or being perceived to violate it) The Article offers a reply to critics who argue that international law does not matter. To the extent those arguments are based on a theoretical claim, this Article demonstrates that it is possible to construct a theory of rational self-interested states in which international law does, in fact matter. Because the model is consistent with both conventional wisdom and empirical evidence showing that international law matters, as ll as the observation that the law is sometimes violated, it offers support to the longstanding claims of international legal scholars that international law affects the behavior of states On the other hand, the model also raises fundamental questions about international law as it is currently studied. By taking the question of compliance seriously, we gain a new perspective on international law, and that new perspective forces us to question some of the central issues in international law First, the analysis suggests the need for a new definition of customary international law(CIL). The existing definition of Cil has been the subject of a great deal of criticism, and some have gone so far as to suggest that no such law exists. 9 Rather than attempting to salvage the traditional definition, this article proposes a new one that focuses on whether or not a rule of customary international law affects behavior. It is shown that the requirements of widespread state practice and a sense of legal obligation do not contribute to a useful understanding of CIL. By studying CiL within a reputational model, and with a focus on compliance, it is possible to achieve a deeper understanding of that form of international law. Second, the Article proposes a new, functional definition of international law Once international law is considered from the perspective of compliance, it is clear that the classical definition of international lay w Is under- inclusive, and should be broadened to include not only treaties and customary international law, but also agreements such as ministerial accords, memoranda of understanding, and so on. Like treaties and customary international law, these instruments affect the incentives of countries and, therefore, should be considered international law Including them allows us to study the full range of international obligations within a single theoretical framework, and, unlike traditional theories, explains why such agreements exist and why Third, it is demonstrated that international law is most likely to affect outcome when there are many repeated interactions and each of those interactions involves See, e.g., Beth A. Simmons and the Law: Why Comply with the Public International Law of Money, 25 YALE J NT'L L 323(presenting empirical evidence that intermational law impacts government behavior See infra v B
Compliance-Based Theory 3 economics, the article focuses explicitly on international law, explaining why countries care about it, and why they will expend resources in order to avoid violating it (or being perceived to violate it). The Article offers a reply to critics who argue that international law does not matter. To the extent those arguments are based on a theoretical claim, this Article demonstrates that it is possible to construct a theory of rational self-interested states in which international law does, in fact, matter. Because the model is consistent with both conventional wisdom and empirical evidence showing that international law matters,8 as well as the observation that the law is sometimes violated, it offers support to the longstanding claims of international legal scholars that international law affects the behavior of states. On the other hand, the model also raises fundamental questions about international law as it is currently studied. By taking the question of compliance seriously, we gain a new perspective on international law, and that new perspective forces us to question some of the central issues in international law. First, the analysis suggests the need for a new definition of customary international law (CIL). The existing definition of CIL has been the subject of a great deal of criticism, and some have gone so far as to suggest that no such law exists.9 Rather than attempting to salvage the traditional definition, this Article proposes a new one that focuses on whether or not a rule of customary international law affects behavior. It is shown that the requirements of widespread state practice and a sense of legal obligation do not contribute to a useful understanding of CIL. By studying CIL within a reputational model, and with a focus on compliance, it is possible to achieve a deeper understanding of that form of international law. Second, the Article proposes a new, functional definition of international law. Once international law is considered from the perspective of compliance, it is clear that the classical definition of “international law” is under-inclusive, and should be broadened to include not only treaties and customary international law, but also agreements such as ministerial accords, memoranda of understanding, and so on. Like treaties and customary international law, these instruments affect the incentives of countries and, therefore, should be considered international law. Including them allows us to study the full range of international obligations within a single theoretical framework, and, unlike traditional theories, explains why such agreements exist and why they are so popular. Third, it is demonstrated that international law is most likely to affect outcomes when there are many repeated interactions and each of those interactions involves 8 See, e.g., Beth A. Simmons, Money and the Law: Why Comply with the Public International Law of Money, 25 YALE J. INT’L L. 323 (presenting empirical evidence that international law impacts government behavior). 9 See infra V.B
Compliance-Based Theory relatively small stakes. Although this claim is not new, it leads to the conclusion that the topics which have traditionally held center stage in international law - such as the laws of war, neutrality, arms control, and so on - are precisely the topics in which international law is least likely to be relevant. This conclusion has two lessons for international law scholarship. The first is that international law scholarship may be unduly focused on these topics. The fact they are arguably the most important issues in international relations does not imply that they should form the centerpiece of international law because international law will often be unable to affect outcomes Scholars may have a greater impact on human well-being if they devote more energy to areas in which international law can alter outcomes more reliably. These include a range of important areas including economic issues, environmental issues, labor issues and so on. The second, somewhat more subtle, lesson is that the study of these issues and the design of international institutions should proceed with an understanding of the limits of international law. International law can play a role in encouraging cooperation, but can only do so if obligations are structured in a fashion that reduces the importance of each compliance decision. For example, an arms treaty, by itself may have little success but a treaty that provides for periodic inspections by a neutral third party may stand a much greater chance of achieving the goal of arms control Fourth, it is shown that sanctions for violations of international law are generally not optimal. Because sanctions consist primarily of weak military or economic punishment and reputational losses, they are often too weak to achieve optimal compliance. Under certain circumstances, however, sanctions can be rationalized and states can be given better incentives. In particular, states can at times be induced to voluntarily submit to dispute resolution procedures and accept sanctions. This is possible where a failure to accept a sanction leads to an even greater loss. The article discusses the circumstance in which that can occur. and how international interactions can be structured to encourage it. Understanding how to encourage participation in dispute resolution procedures sheds light on the role of international organizations. These bodies have an important role because they can be used to coordinate international interactions in such a way as to increase the likelihood that states will submit themselves to the authority of dispute resolution bodies. The obvious example of this sort of behavior is seen at the World Trade Organization (WTO). Although certainly not a flawless process, the WTo is able to resolve disputes among embers and impose sanctions closer to the optimal In summary, the Article seeks to ad dress th critics and proponents of international law It demonstrates to critics that the existence of international law does not present a theoretical problem, and that attacks on the discipline that proceed from a to See Chayes Chayes, supra note 4, at 29-33. Even when they are effective, direct punitive sanctions such as embargoes may at time be too harsh, which also fails to generate optimal complian
Compliance-Based Theory 4 relatively small stakes. Although this claim is not new, it leads to the conclusion that the topics which have traditionally held center stage in international law -- such as the laws of war, neutrality, arms control, and so on -- are precisely the topics in which international law is least likely to be relevant. This conclusion has two lessons for international law scholarship. The first is that international law scholarship may be unduly focused on these topics. The fact they are arguably the most important issues in international relations does not imply that they should form the centerpiece of international law because international law will often be unable to affect outcomes. Scholars may have a greater impact on human well-being if they devote more energy to areas in which international law can alter outcomes more reliably. These include a range of important areas including economic issues, environmental issues, labor issues, and so on. The second, somewhat more subtle, lesson is that the study of these issues, and the design of international institutions should proceed with an understanding of the limits of international law. International law can play a role in encouraging cooperation, but can only do so if obligations are structured in a fashion that reduces the importance of each compliance decision. For example, an arms treaty, by itself may have little success but a treaty that provides for periodic inspections by a neutral third party may stand a much greater chance of achieving the goal of arms control. Fourth, it is shown that sanctions for violations of international law are generally not optimal. Because sanctions consist primarily of weak military or economic punishment and reputational losses, they are often too weak to achieve optimal compliance.10 Under certain circumstances, however, sanctions can be rationalized and states can be given better incentives. In particular, states can at times be induced to voluntarily submit to dispute resolution procedures and accept sanctions. This is possible where a failure to accept a sanction leads to an even greater loss. The Article discusses the circumstance in which that can occur, and how international interactions can be structured to encourage it. Understanding how to encourage participation in dispute resolution procedures sheds light on the role of international organizations. These bodies have an important role because they can be used to coordinate international interactions in such a way as to increase the likelihood that states will submit themselves to the authority of dispute resolution bodies. The obvious example of this sort of behavior is seen at the World Trade Organization (WTO). Although certainly not a flawless process, the WTO is able to resolve disputes among members and impose sanctions closer to the optimal level. In summary, the Article seeks to address both critics and proponents of international law. It demonstrates to critics that the existence of international law does not present a theoretical problem, and that attacks on the discipline that proceed from a 10 See Chayes & Chayes, supra note 4, at 29-33. Even when they are effective, direct punitive sanctions such as embargoes may at time be too harsh, which also fails to generate optimal compliance
Compliance-Based Theory theoretical perspective are not persuasive. On the other hand, the Article acknowledges that some of the views held by international law scholars are inconsisten with a theoretical model in which international law matters. it demonstrates to proponents of international law that we must devote greater attention to the compliance question, and we must rethink much of the discipline if we are to provide a coherent response to the claim that international law is irrelevant The Article proceeds as follows. Part lI discusses the most prominent theories of international law from both traditional legal scholarship and international relations erspectives. Part Ill presents the model of compliance. Any theory of compliance must come to terms with the fact that international law. however that terms is defined has virtually no enforcement mechanism. When a state violates international law there are few formal procedures through which other countries can invoke sanctions That is not to say, however, that the violation of international law is without cost. two costs are of central importance and will be the focus of this article. First, following a country's breach of an international obligation, other states may choose to impose some form of sanction. This may range from criticism of the offending state to economic or even military sanction. The second cost of violating an international obligation reputational. If a country violates international law, other states may refuse to enter into future agreements, may demand greater concessions when entering into such agreements, or may lose faith in the strength of existing agreements Part IV presents a detailed discussion of how reputational and direct sanctions affect states and how the magnitude of those sanctions changes depending on the circumstances of the violation. Part V develops some of the implications of the the explaining how it affects our understanding of treaties and customary international law and explaining why the definition of international law should be expanded. The interaction of this theory of compliance with other theories of international law is also explored. Finally, the Article discusses the fact that some of the traditional ODICS interest to international legal scholars are unlikely to be affected by international law, and calls for a refocusing of scholarship on other areas, where international law can have a greater impact. I. EXISTING THEORIES OF INTERNATIONAL LAW Compliance is central to international law and its role in regulating the interaction of nations. Unless international law provides an incentive toward oercion cosme franc k, apra noe l ao ice forwhy sheuld rss s icis upported b an tective structu ainst perceived self-interest, on the part of sovereign states? " See abram chayes antonia handler chayes. the new sovereignty: compliance WITH INTERNATIONAL REGULATORY AGREEMENTS 2-3: 29-108 (discussing the weakness of punitive sanctions for violation of international law)
Compliance-Based Theory 5 theoretical perspective are not persuasive. On the other hand, the Article acknowledges that some of the views held by international law scholars are inconsistent with a theoretical model in which international law matters. It demonstrates to proponents of international law that we must devote greater attention to the compliance question, and we must rethink much of the discipline if we are to provide a coherent response to the claim that international law is irrelevant. The Article proceeds as follows. Part II discusses the most prominent theories of international law from both traditional legal scholarship and international relations perspectives. Part III presents the model of compliance. Any theory of compliance must come to terms with the fact that international law, however that terms is defined, has virtually no enforcement mechanism.11 When a state violates international law there are few formal procedures through which other countries can invoke sanctions.12 That is not to say, however, that the violation of international law is without cost. Two costs are of central importance and will be the focus of this Article. First, following a country’s breach of an international obligation, other states may choose to impose some form of sanction. This may range from criticism of the offending state to economic or even military sanction. The second cost of violating an international obligation is reputational. If a country violates international law, other states may refuse to enter into future agreements, may demand greater concessions when entering into such agreements, or may lose faith in the strength of existing agreements. Part IV presents a detailed discussion of how reputational and direct sanctions affect states and how the magnitude of those sanctions changes depending on the circumstances of the violation. Part V develops some of the implications of the theory, explaining how it affects our understanding of treaties and customary international law and explaining why the definition of international law should be expanded. The interaction of this theory of compliance with other theories of international law is also explored. Finally, the Article discusses the fact that some of the traditional topics of interest to international legal scholars are unlikely to be affected by international law, and calls for a refocusing of scholarship on other areas, where international law can have a greater impact. II. EXISTING THEORIES OF INTERNATIONAL LAW Compliance is central to international law and its role in regulating the interaction of nations. Unless international law provides an incentive toward 11 See Franck, supra note 7, at 707 (“Why should rules, unsupported by an effective structure of coercion comparable to a national police force, nevertheless elicit so much compliance, even against perceived self-interest, on the part of sovereign states?”). 12 See ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY: COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS 2-3; 29-108 (discussing the weakness of punitive sanctions for violation of international law)
Compliance-Based Theory compliance, the time, energy and other resources devoted to the creation and maintenance of international legal structures is wasted and the study of that subject is a futile endeavor that should be abandoned. Despite the fundamental importance of the ompliance question, and the deep faith that international legal scholars have in the mportance of international law, the legal academy has failed to develop a satisfactory theory to explain it. This Part presents the most prominent attempts of the international law literature to explain compliance. It also presents theories from ncluding the institutionalist theory that this article builds upolz. tional law literature international relations that have begun to filter into the interna A. Traditional Legal Theories Although a great deal of ink has been spilled in the dis law and its impact on states, international legal scholarship still lacks a satisfactory theory of compliance. This section presents four prominent theories advanced by legal scholars. The first, the managerial model, is a useful and well reasoned theory, but only applies to that subset of international agreements that resolve coordination problems The remaining three theories are less useful and really do not offer sufficient theoretical structure to further our understanding of international law and compliance 1. The managerial model Perhaps the most satisfying of the traditional legal theories of international law and compliance is provided by Chayes Chayes. They argue that the"enforcement model"of compliance in which compliance is achieved through coercive mechanisms such as sanctions should be replaced with what they term the managerial model which relies primarily on a cooperative, problem-solving approach. Chayes Chayes claim that states have a general propensity to comply with international law that is the product of three factors. First, compliance avoids the need to recalculate the costs and benefits of a decision, and therefore, saves transaction costs, generating an fficiency based rationale for compliance. Second, they argue that treaties are consent-based instruments that, therefore, serve the interests of the participating states. Finally, they argue that compliance is furthered by a general norm of compliance Is For an account of"ancient and primitive"international law, which predates the traditional views described herein, see Koh, supra note 2, at 2604-2606 and corresponding notes I+ See Dunoff Trachtman, supra note 2, at 28("Past efforts to identify an underlying structure for the law of treaties have proven unsatisfactory" ). Koh, supra note 2, at 2599-2560; Setear, supra note 2, at 147(criticizing two theoretical justifications for the law of treaties) See supra note 12. 6 Id. at 3 17 See id at 4 18"[IIf the agreement is well designed -sensible, comprehensible, and with a practical eye probable patterns of conduct and interaction -compliance problems and enforcement issues are likely D
Compliance-Based Theory 6 compliance, the time, energy and other resources devoted to the creation and maintenance of international legal structures is wasted and the study of that subject is a futile endeavor that should be abandoned. Despite the fundamental importance of the compliance question, and the deep faith that international legal scholars have in the importance of international law, the legal academy has failed to develop a satisfactory theory to explain it. This Part presents the most prominent attempts of the international law literature to explain compliance. It also presents theories from international relations that have begun to filter into the international law literature, including the institutionalist theory that this article builds upon. A. Traditional Legal Theories13 Although a great deal of ink has been spilled in the discussion of international law and its impact on states, international legal scholarship still lacks a satisfactory theory of compliance.14 This section presents four prominent theories advanced by legal scholars. The first, the managerial model, is a useful and well reasoned theory, but only applies to that subset of international agreements that resolve coordination problems. The remaining three theories are less useful and really do not offer sufficient theoretical structure to further our understanding of international law and compliance. 1. The Managerial Model Perhaps the most satisfying of the traditional legal theories of international law and compliance is provided by Chayes & Chayes.15 They argue that the “enforcement model” of compliance – in which compliance is achieved through coercive mechanisms such as sanctions – should be replaced with what they term the managerial model, which relies primarily on “a cooperative, problem-solving approach.”16 Chayes & Chayes claim that states have a general propensity to comply with international law that is the product of three factors. First, compliance avoids the need to recalculate the costs and benefits of a decision, and therefore, saves transaction costs, generating an efficiency based rationale for compliance.17 Second, they argue that treaties are consent-based instruments that, therefore, serve the interests of the participating states.18 Finally, they argue that compliance is furthered by a general norm of compliance. 13 For an account of “ancient and primitive” international law, which predates the traditional views described herein, see Koh, supra note 2, at 2604-2606 and corresponding notes. 14 See Dunoff & Trachtman, supra note 2, at 28 (“Past efforts to identify an underlying structure for the law of treaties have proven unsatisfactory”). Koh, supra note 2, at 2599-2560; Setear, supra note 2, at 147 (criticizing two theoretical justifications for the law of treaties). 15 See supra note 12. 16 Id. at 3. 17 See id. at 4. 18 “[I]f the agreement is well designed – sensible, comprehensible, and with a practical eye to probable patterns of conduct and interaction – compliance problems and enforcement issues are likely to
