Between Power and Principle An Integrated Theory of International Law Oona A hathaway in the Chicago lam reriew (20 In March of 2003, as American tanks rolled toward Baghdad, international lawyers in the United States and abroad decried the action as a violation of the United Nations Charter The invasion, some worried, would strip away the last pretense that international law could constrain state action. Others openly questioned whether the increasingly wounded global legal regime was worth saving. If states so openly flouted it, was international law really worth the trouble? The hand-wringing and condemnation were scarcely new. Well before the invasion of Iraq the tide of events had given pause to all but the staunchest believers in international law. Within six short months of entering office, President George w. Bush had withdrawn from the Kyoto global climate accord, threatened to unilaterally abrogate the 1972 Anti Ballistic Missile Treaty, and revoked the U.S. signature on the treaty creating the International Criminal Court. The U.S. president thus looked ready to make good on the promise that Jesse Helms, then-chairman of the Senate Foreign Relations Committee, had made to the UN Security Council only a year earlier to resist any effort to "impose the UNs power and authority over nation states. 2 t Associate Professor, Yale Law SchooL. J D, Yale Law School. I thank the Carnegie Foundation for its generous support of this project through the Carnegie Scholars Program. My thanks also to Craig Estes, Galit Sarfaty, and Alan Schoenfeld for their research assistance and to Ulrich Wagner and especially Alexandra Miltner for their help with compiling and analyzing the datasets used in this Article. I am grateful to Bruce Ackerman, Yochai Benkler, William Bradford, Jutta Brunnee, Steve Charnovitz, Robert Ellickson, Ryan Goodman, Larry Helfer, Rob Howse, Dan Kahan, Alvin Klevorick, Barbara Koremenos Ariel Lavinbuk, Mike Levine, Jonathan R. Macey, Daniel Markovits, Eric Posner, Kal Raustiala, Roberta romano, Scott Shapiro, Peter Shuck, Alan Schwartz, Jim Whitman, Tim Wu, Kenji Yoshino, the faculty of the University of Bremen, and participants in the University of Southern California Conference on Compliance with International Law, the nternational Law Roundtable at Vanderbilt Law School, the Yale World Fellows program, and the University of Toronoto's workshop on international law for helpful conversations about and comments on earlier drafts. Thanks are also due to Gene Coakley and the rest of the staff of the Yale Law School library for their outstanding assistance. Finally i owe the greatest debt to Jacob S Hacker, for his support at every stage of this project. For an interesting discussion that places the decision of the United States to withdraw from the Kyoto Protocol into a broader context by considering the US approach to international environmental law since 1992, see Jutta Brunnee, The United States and International Environmental Law: Living with an Elephant, 15 EJIL 617(200 Senator Jesse Helms, Speech to the United Nations Security Council (an 19, 2000) onlineathttp://www.sovereignty.net/center/helms.htm(visitedNov30,2004)
Between Power and Principle: An Integrated Theory of International Law Oona A. Hathaway† Forthcoming in the Chicago Law Review (2005) In March of 2003, as American tanks rolled toward Baghdad, international lawyers in the United States and abroad decried the action as a violation of the United Nations Charter. The invasion, some worried, would strip away the last pretense that international law could constrain state action. Others openly questioned whether the increasingly wounded global legal regime was worth saving. If states so openly flouted it, was international law really worth the trouble? The hand-wringing and condemnation were scarcely new. Well before the invasion of Iraq the tide of events had given pause to all but the staunchest believers in international law. Within six short months of entering office, President George W. Bush had withdrawn from the Kyoto global climate accord,1 threatened to unilaterally abrogate the 1972 AntiBallistic Missile Treaty, and revoked the U.S. signature on the treaty creating the International Criminal Court. The U.S. president thus looked ready to make good on the promise that Jesse Helms, then-chairman of the Senate Foreign Relations Committee, had made to the UN Security Council only a year earlier to resist any effort to “impose the UN’s power and authority over nation states.”2 † Associate Professor, Yale Law School. J.D., Yale Law School. I thank the Carnegie Foundation for its generous support of this project through the Carnegie Scholars Program. My thanks also to Craig Estes, Galit Sarfaty, and Alan Schoenfeld for their research assistance and to Ulrich Wagner and especially Alexandra Miltner for their help with compiling and analyzing the datasets used in this Article. I am grateful to Bruce Ackerman, Yochai Benkler, William Bradford, Jutta Brunnée, Steve Charnovitz, Robert Ellickson, Ryan Goodman, Larry Helfer, Rob Howse, Dan Kahan, Alvin Klevorick, Barbara Koremenos, Ariel Lavinbuk, Mike Levine, Jonathan R. Macey, Daniel Markovits, Eric Posner, Kal Raustiala, Roberta Romano, Scott Shapiro, Peter Shuck, Alan Schwartz, Jim Whitman, Tim Wu, Kenji Yoshino, the faculty of the University of Bremen, and participants in the University of Southern California Conference on Compliance with International Law, the International Law Roundtable at Vanderbilt Law School, the Yale World Fellows program, and the University of Toronoto’s workshop on international law for helpful conversations about and comments on earlier drafts. Thanks are also due to Gene Coakley and the rest of the staff of the Yale Law School library for their outstanding assistance. Finally, I owe the greatest debt to Jacob S. Hacker, for his support at every stage of this project. 1 For an interesting discussion that places the decision of the United States to withdraw from the Kyoto Protocol into a broader context by considering the US approach to international environmental law since 1992, see Jutta Brunnee, The United States and International Environmental Law: Living with an Elephant, 15 EJIL 617 (2004). 2 Senator Jesse Helms, Speech to the United Nations Security Council (Jan 19, 2000), online at http://www.sovereignty.net/center/helms.htm (visited Nov 30, 2004)
Between Power and principle Yet the blame for todays crisis atmosphere cannot be laid in Bush's lap. While the Bush administration fanned the flames of concern, the issue of what role international law can play in regulating international relations has bedeviled the world community for decades After World War Il, even as the world pressed ahead with the United Nations and other nev international institutions, widespread dismay over the failure of earlier institutions to prevent the collapse of order prompted a wave of attacks on the Wilsonian ideal of an international system founded on global legal order. As long as there was no sovereign power to manage enforcement, critics argued, international law was meaningless. Regarding it as otherwise was not just unrealistic but dangerous In the face of these attacks, international lawyers have worked assiduously to refine, interpret, and apply international law. But they have not yet done enough to respond to the ever more intense concerns about the fields validity. It is perhaps not surprising, then, that S See, for example, Hans J. Morgenthau, Politics Among Nations(Knopf 3d ed 1966) (offering a realist critique of international law); Edward Hallett Carr, The Twenty Years Crisis: 1919-1932(MacMillan 2d ed 1946)(same); Hans J. Morgenthau, Positivism, Functionalism, and International Law, 34 AmJ Intl L 260(1940)(same) See, for example, Raymond Aron, The Anarchical Order of Power, in Stanley Hoffman, ed, Conditions of World Order 25, 47(Houghton 1968)(concluding that international society is an anarchical order of power in which might is supreme); Charles W Briggs, The Cloudy Prospects for "Peace Through Law, 46 ABA J 490, 493-95(1960) (acknowledging that international law can only be enforced by a world sovereign, but concluding that establishment of a world government is a dream) 6 Louis Henkin writes: "These depreciations of international law challenge much of what the international lawyer does. Indeed, some lawyers seem to despair for international law until there is world government or at least effective international organization. " Lou Henkin, How Nations Behave: Law and Foreign Policy 25-26( Columbia 2d ed 1979)). For more, see Part II. There are, of course, exceptions. For example, the " new stream scholarship has long been critical of traditional approaches to international law. See generally Jason Mark Anderman, Note, Swimming the New Stream: The Disjunctions Between and Within Popular and Academic International Law, 6 Duke J Comp Intl L 293(1996) (criticizing the traditional"new world order?"international law theory and concluding that the "new stream?"academic international law theory is logically and morally superior); Nigel Purvis, Critical Legal Studies in Public International Law, 32 Harv Intl L J 81(1991) (discussing traditional international law theory's reduction to marginality due to its impossibility); Anthony Carty, Critical International Law: Recent Trends in the Theory of International Law, 2 Eur J Intl L 66(1991)(providing an analytic presentation of the main themes of four contemporary international law scholars, all of whom advocate nontraditional concepts of international law and criticize traditional international legal theory); Phillip r. Trimble, International Law, World Order, and Critical Legal Studies, 42 Stan L Rev 811(1990)(reviewing Lung-Chu Chen, An Introduction to Contemporary International Law: A Policy-Oriented Perspective(Yale 1989); Richard A. Falk, Revitalizing International Law(lowa State 1989); David Kennedy, International Legal Structures (Nomos Verlagsgesellschaft 1987): Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument(Finnish Lawyers'1989); David Kennedy, A New Stream of
Between Power and Principle 2 Yet the blame for today’s crisis atmosphere cannot be laid in Bush’s lap. While the Bush administration fanned the flames of concern, the issue of what role international law can play in regulating international relations has bedeviled the world community for decades. After World War II, even as the world pressed ahead with the United Nations and other new international institutions, widespread dismay over the failure of earlier institutions to prevent the collapse of order prompted a wave of attacks on the Wilsonian ideal of an international system founded on global legal order.3 As long as there was no sovereign power to manage enforcement, critics argued, international law was meaningless. Regarding it as otherwise was not just unrealistic but dangerous.4 In the face of these attacks, international lawyers have worked assiduously to refine, interpret, and apply international law. But they have not yet done enough to respond to the ever more intense concerns about the field’s validity.5 It is perhaps not surprising, then, that 3 See, for example, Hans J. Morgenthau, Politics Among Nations (Knopf 3d ed 1966) (offering a realist critique of international law); Edward Hallett Carr, The Twenty Years’ Crisis: 1919–1939 (MacMillan 2d ed 1946) (same); Hans J. Morgenthau, Positivism, Functionalism, and International Law, 34 Am J Intl L 260 (1940) (same). 4 See, for example, Raymond Aron, The Anarchical Order of Power, in Stanley Hoffman, ed, Conditions of World Order 25, 47 (Houghton 1968) (concluding that international society is an anarchical order of power in which might is supreme); Charles W. Briggs, The Cloudy Prospects for “Peace Through Law,” 46 ABA J 490, 493–95 (1960) (acknowledging that international law can only be enforced by a world sovereign, but concluding that establishment of a world government is a dream). 5 Louis Henkin writes: “These depreciations of international law challenge much of what the international lawyer does. Indeed, some lawyers seem to despair for international law until there is world government or at least effective international organization.” Louis Henkin, How Nations Behave: Law and Foreign Policy 25–26 (Columbia 2d ed 1979)). For more, see Part II. There are, of course, exceptions. For example, the “new stream” scholarship has long been critical of traditional approaches to international law. See generally Jason Mark Anderman, Note, Swimming the New Stream: The Disjunctions Between and Within Popular and Academic International Law, 6 Duke J Comp & Intl L 293 (1996) (criticizing the traditional “new world order” international law theory and concluding that the “new stream” academic international law theory is logically and morally superior); Nigel Purvis, Critical Legal Studies in Public International Law, 32 Harv Intl L J 81 (1991) (discussing traditional international law theory’s reduction to marginality due to its impossibility); Anthony Carty, Critical International Law: Recent Trends in the Theory of International Law, 2 Eur J Intl L 66 (1991) (providing an analytic presentation of the main themes of four contemporary international law scholars, all of whom advocate nontraditional concepts of international law and criticize traditional international legal theory); Phillip R. Trimble, International Law, World Order, and Critical Legal Studies, 42 Stan L Rev 811 (1990) (reviewing Lung-Chu Chen, An Introduction to Contemporary International Law: A Policy-Oriented Perspective (Yale 1989); Richard A. Falk, Revitalizing International Law (Iowa State 1989); David Kennedy, International Legal Structures (Nomos Verlagsgesellschaft 1987)); Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Finnish Lawyers’ 1989); David Kennedy, A New Stream of
Between Power and principle much of the public debate over international law has been polarized and unproductive Skeptics argue strenuously that international law is mere window dressing. Advocates frequently assume that states abide by their international legal commitments " almost all of the time More must be done to evaluate critically the role that international law can and does lay in shaping state behavior. Legal and political science scholars have begun to meet this challenge, yet we still remain remarkably ill-equipped to predict or explain the real-world International Law Scholarship, 7 Wis Intl L J 1(1988)(criticizing traditional conceptions of international law and advocating a rhetorical and interactive theory); David Kennedy, International Legal Structures (Nomos Verlagsgesellschaft 1987)(criticizing traditional theories of international law and advocating an internal analysis of international laws doctrinal and rhetorical cohesiveness); James Boyle, Ideals and Things: International Legal Scholarship and the Prison-House of Language, 26 Harv Intl L J 327( 1985)(critiquing attempts to define international law as manifestations of a pervasive reification by legal scholars); David Kennedy, Theses About International Law Discourse, 23 Ger YB Intl L 353(1980)(identifying a crisis in traditional international legal scholarship and advocating ar analytical approach that examines the transformational rules governing discourse for hints about the structure of the international law dilemma) Henkin, How Nations Behave at 25-26(cited in note 5) In recent years, a significant literature has arisen on the topic, among both political scientists and international legal scholars. See William Bradford, International Legal Compliance: An Annotated Bibliography (unpublished manuscript 2004), online at http://papers.ssrn.com/so13/papers.cfmpabstraCt_id=577104(visitedNov25,2004) (examining significant literature that evaluates the role of international law in state behavior) Some notable examples include William Bradford, In the Minds of Men: A Theory of Compliance with the Laws of War(unpublished manuscript on file with author); James Raymond Vreeland, Why Do Governments and the IMF Enter into Agreements:: Statistically Selected Cases, 24 Intl Polit Sci Rev 321(2003)(examining the national considerations of governments in entering into International Monetary Fund(IMF agreements through evaluation of the national motivations in two outlying cases); James Raymond Vreeland, Institutional Determinants of IMF Agreements(Dec 11, 2002), online at http://pantheon.yaleedu/-jrv9/veto.pdfvisitedNov24,2004)(examiningwhether domestic institutions influence decisions to participate in IMF programs); Beth Simmons, Why Commit? Explaining State Acceptance of International Human Rights Obligations (2002)(unpublished manuscrI ipt on file with author); Andrew Moravcsik, The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe, 54 Intl Org 217(2000) (examining why governments allow an international human rights regime to constrain domestic sovereignty); Beth Simmons, International Law and State Behavior: Commitment and Compliance in International Monetary Affairs, 94 Am Polit Sci Rev 819(2000) (examining patterns of commitment to and compliance with international monetary law) Martha Finnemore, National Interests in International Society 69-88( Cornell 1996) (examining the national motivations behind the Geneva Conventions' rules for warfare
Between Power and Principle 3 much of the public debate over international law has been polarized and unproductive. Skeptics argue strenuously that international law is mere window dressing. Advocates frequently assume that states abide by their international legal commitments “almost all of the time.”6 More must be done to evaluate critically the role that international law can and does play in shaping state behavior. Legal and political science scholars have begun to meet this challenge,7 yet we still remain remarkably ill-equipped to predict or explain the real-world International Law Scholarship, 7 Wis Intl L J 1 (1988) (criticizing traditional conceptions of international law and advocating a rhetorical and interactive theory); David Kennedy, International Legal Structures (Nomos Verlagsgesellschaft 1987) (criticizing traditional theories of international law and advocating an internal analysis of international law’s doctrinal and rhetorical cohesiveness); James Boyle, Ideals and Things: International Legal Scholarship and the Prison-House of Language, 26 Harv Intl L J 327 (1985) (critiquing attempts to define international law as manifestations of a pervasive reification by legal scholars); David Kennedy, Theses About International Law Discourse, 23 Ger YB Intl L 353 (1980) (identifying a crisis in traditional international legal scholarship and advocating an analytical approach that examines the transformational rules governing discourse for hints about the structure of the international law dilemma). 6 Henkin, How Nations Behave at 25–26 (cited in note 5). 7 In recent years, a significant literature has arisen on the topic, among both political scientists and international legal scholars. See William Bradford, International Legal Compliance: An Annotated Bibliography (unpublished manuscript 2004), online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=577104 (visited Nov 25, 2004) (examining significant literature that evaluates the role of international law in state behavior). Some notable examples include William Bradford, In the Minds of Men: A Theory of Compliance with the Laws of War (unpublished manuscript on file with author); James Raymond Vreeland, Why Do Governments and the IMF Enter into Agreements?: Statistically Selected Cases, 24 Intl Polit Sci Rev 321 (2003) (examining the national considerations of governments in entering into International Monetary Fund (IMF) agreements through evaluation of the national motivations in two outlying cases); James Raymond Vreeland, Institutional Determinants of IMF Agreements (Dec 11, 2002), online at http://pantheon.yale.edu/~jrv9/Veto.pdf (visited Nov 24, 2004) (examining whether domestic institutions influence decisions to participate in IMF programs); Beth Simmons, Why Commit? Explaining State Acceptance of International Human Rights Obligations (2002) (unpublished manuscript on file with author); Andrew Moravcsik, The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe, 54 Intl Org 217 (2000) (examining why governments allow an international human rights regime to constrain domestic sovereignty); Beth Simmons, International Law and State Behavior: Commitment and Compliance in International Monetary Affairs, 94 Am Polit Sci Rev 819 (2000) (examining patterns of commitment to and compliance with international monetary law); Martha Finnemore, National Interests in International Society 69–88 (Cornell 1996) (examining the national motivations behind the Geneva Conventions’ rules for warfare)
Between Power and principle impact of the over 50,000 international treaties now in force, covering nearly every aspect of international relations and nearly every facet of state authority. This Article offers a theory of international treaty law that helps fill this gap. I call the theory an "integrated"theory of international law because it brings together and builds upon two cross-cutting facets of existing scholarship on international law and politics. First, the theory draws on both political science and legal scholarship, using them together to construct a broader and deeper understanding than is possible working solely within either discipline alone. Second, it operates at the intersection of two distinct theoretical approaches regarding the role of international law-what I term the interest-based and norm-based approaches--that cut across the disciplinary divide between political science and international legal scholarship The theory--and this Article--is integrated in yet another sense as well. It accepts and seeks to respond to the challenge mounted by the critics of international law. B integrating their insights into an analysis of how international law affects what states actually do. Rather than reject altogether the arguments of international law skeptics-as international lawyers and scholars are sometimes want to do-I seek to show when and why their claims have power and when and why they do not. I begin by confronting the root auses of doubt about the power of international law. I focus attention on the voluntary nature of international treaty law(the fact that countries often choose whether to be bound by it) and on the frequent absence of any central it powe to show how despite and at times because of these distinctive features, international treaty law can profoundly shape state behavior. The central goal of this Article is to explain the impact of international treaty law on state behavior(that is, on countries' decisions to comply or not with treaty law). The integrated theory I develop herein begins with the claim that understanding the political interplay between countries' decisions to commit and to comply is essential to a complet picture of the influence of international treaty law. I thus argue that we must pay attention to he interaction of the domestic and transnational levels at each stage of a country's entry into an international legal framework: its decision to commit (or not) to international legal rules; and its decision to comply (or not) with them. When we do so, we find that compliance not only depends upon the decision to commit, but commitment also depends upon the decision tO comp Beginning with this interactive mode of thinking about state decisionmaking, the transnational level. Legal enforcement occulr: terms or bays in which treaties shape what Article proceeds to describe and elaborate the two central countries do: through legal enforcement of the the treaty and by bringing about collateral consequences for state interests. Both operate at the domestic as well use the country's own legal system to enforce the terms of international legal agreements. At the transnational level, legal enforcement occurs when international bodies or other states The United Nations Treaty Series currently contains over 50,000 treaties. United Treaty Overview online http://untreaty.un.org/english/overView.asp(visitedNov24,2004) This Article adopts the definition of"transnational"used by Philip Jessup: he wrote that "transnational law" includes " all law which regulates actions or events that transcend
Between Power and Principle 4 impact of the over 50,000 international treaties now in force, covering nearly every aspect of international relations and nearly every facet of state authority.8 This Article offers a theory of international treaty law that helps fill this gap. I call the theory an “integrated” theory of international law because it brings together and builds upon two cross-cutting facets of existing scholarship on international law and politics. First, the theory draws on both political science and legal scholarship, using them together to construct a broader and deeper understanding than is possible working solely within either discipline alone. Second, it operates at the intersection of two distinct theoretical approaches regarding the role of international law—what I term the interest-based and norm-based approaches—that cut across the disciplinary divide between political science and international legal scholarship. The theory—and this Article—is integrated in yet another sense as well. It accepts and seeks to respond to the challenge mounted by the critics of international law. By integrating their insights into an analysis of how international law affects what states actually do. Rather than reject altogether the arguments of international law skeptics—as international lawyers and scholars are sometimes want to do—I seek to show when and why their claims have power and when and why they do not. I begin by confronting the root causes of doubt about the power of international law. I focus attention on the voluntary nature of international treaty law (the fact that countries often choose whether to be bound by it) and on the frequent absence of any central enforcement power. I go on to show how, despite and at times because of these distinctive features, international treaty law can profoundly shape state behavior. The central goal of this Article is to explain the impact of international treaty law on state behavior (that is, on countries’ decisions to comply or not with treaty law). The integrated theory I develop herein begins with the claim that understanding the political interplay between countries’ decisions to commit and to comply is essential to a complete picture of the influence of international treaty law. I thus argue that we must pay attention to the interaction of the domestic and transnational levels at each stage of a country’s entry into an international legal framework: its decision to commit (or not) to international legal rules; and its decision to comply (or not) with them. When we do so, we find that compliance not only depends upon the decision to commit, but commitment also depends upon the decision to comply. Beginning with this interactive mode of thinking about state decisionmaking, the Article proceeds to describe and elaborate the two central ways in which treaties shape what countries do: through legal enforcement of the terms of the treaty and by bringing about collateral consequences for state interests. Both operate at the domestic as well as transnational level. Legal enforcement occurs at the domestic level when domestic actors use the country’s own legal system to enforce the terms of international legal agreements. At the transnational level,9 legal enforcement occurs when international bodies or other states 8 The United Nations Treaty Series currently contains over 50,000 treaties. United Nations Treaty Series Overview (2003), online at http://untreaty.un.org/English/overview.asp (visited Nov 24, 2004). 9 This Article adopts the definition of “transnational” used by Philip Jessup: he wrote that “transnational law” includes “all law which regulates actions or events that transcend
Between Power and principle that are party to the treaty respond to violations of a treaty in ways provided for in the treaty Collateral consequences, by contrast, arise when domestic and transnational actors premise their actions toward a state on the states decision to accept or not accept international legal rules. The reactions of these actors to the states actions can affect, among other things, foreign investment, aid donations, international trade, domestic political support, and political contributions, and hence create powerful incentives for states to commit to and com Viewing state decisions to commit and comply in with broader lens makes it possible to understand why countries behave in ways that standard theories miss--failing to join treaties, for instance, that they could easily comply with(because they have little to gain and much to lose), or joining treaties that they have little inclination to obey(because they have much to gain and little to lose). For example, it is often thought that countries with poor luman rights records will be reluctant to join treaties that embody higher standards. Yet in fact these countries often have stronger incentives(and weaker disincentives) to join human rights treaties than states with better records--first, because such countries usually have weak rule of law and thus create limited opportunities for domestic legal enforcement; second, because human rights treaties usually lack transnational legal enforcement mechanisms, such as supranational enforcement or credible threats of state-to-state retaliation; and finally, because such countries, by displaying their(sometimes commitment to human rights, increase their standing among other nations, international bodies, private investors, domestic actors, and others and thereby obtain significant collateral benefits. The integrated theory thus predicts that, holding other factors constant, countries with very poor human rights records can be as likely or even more likely to ratify treaties as countries with better records, but that unlike those with better records, they are unlikely to comply with those commitments--which is in fact the pattern found. In short, the theory not only provides a comprehensive vision of the potential and the limits of international law, it also gives rise to unique(and often counterintuitive) predictions that are consistent with the available evidence This Article focuses exclusively on international treaty law. For the purposes of this first effort to articulate the theory, I put customary international law to one side. The focus in this piece is on state decisions to commit to and comply with international treaty law. It is national frontiers. Both public and private international law are included, as are other rules which do not wholly fit into such standard categories. "Philip C.Jessup, Transnational Law 2 (Yale 1956). Hence "transnationaL"is used here in its literal sense: it means across nations, as opposed to "international, "which means between nations. The term "transnational herefore encompasses a larger universe of activity and interactions than does the term international. When applied to law, for example, transnational law includes any law that as cross-border effect, whereas international law refers only to treaties or other law that governs interactions between states io This Article is aimed only at explaining international treaty law. Hence references to"international law?are intended to include only international treaty law and not customary international law, jus cogens norms, private transnational legal interactions, or domestic law that extends across borders
Between Power and Principle 5 that are party to the treaty respond to violations of a treaty in ways provided for in the treaty. Collateral consequences, by contrast, arise when domestic and transnational actors premise their actions toward a state on the state’s decision to accept or not accept international legal rules. The reactions of these actors to the state’s actions can affect, among other things, foreign investment, aid donations, international trade, domestic political support, and political contributions, and hence create powerful incentives for states to commit to and comply with treaties. Viewing state decisions to commit and comply in with broader lens makes it possible to understand why countries behave in ways that standard theories miss—failing to join treaties, for instance, that they could easily comply with (because they have little to gain and much to lose), or joining treaties that they have little inclination to obey (because they have much to gain and little to lose). For example, it is often thought that countries with poor human rights records will be reluctant to join treaties that embody higher standards. Yet in fact these countries often have stronger incentives (and weaker disincentives) to join human rights treaties than states with better records—first, because such countries usually have weak rule of law and thus create limited opportunities for domestic legal enforcement; second, because human rights treaties usually lack transnational legal enforcement mechanisms, such as supranational enforcement or credible threats of state-to-state retaliation; and finally, because such countries, by displaying their (sometimes insincere) commitment to human rights, increase their standing among other nations, international bodies, private investors, domestic actors, and others and thereby obtain significant collateral benefits. The integrated theory thus predicts that, holding other factors constant, countries with very poor human rights records can be as likely or even more likely to ratify treaties as countries with better records, but that unlike those with better records, they are unlikely to comply with those commitments—which is in fact the pattern found. In short, the theory not only provides a comprehensive vision of the potential and the limits of international law; it also gives rise to unique (and often counterintuitive) predictions that are consistent with the available evidence. This Article focuses exclusively on international treaty law. For the purposes of this first effort to articulate the theory, I put customary international law to one side.10 The focus in this piece is on state decisions to commit to and comply with international treaty law. It is national frontiers. Both public and private international law are included, as are other rules which do not wholly fit into such standard categories.” Philip C. Jessup, Transnational Law 2 (Yale 1956). Hence “transnational” is used here in its literal sense: it means across nations, as opposed to “international,” which means between nations. The term “transnational” therefore encompasses a larger universe of activity and interactions than does the term “international.” When applied to law, for example, transnational law includes any law that has cross-border effect, whereas international law refers only to treaties or other law that governs interactions between states. 10 This Article is aimed only at explaining international treaty law. Hence references to “international law” are intended to include only international treaty law and not customary international law, jus cogens norms, private transnational legal interactions, or domestic law that extends across borders
Between Power and principle widely understood that states cannot be bound by a treaty unless they agree thereto Commitment does not operate in the same way for customary law(with limited exceptions, states are regarded to be obligated by international customary law regardless of whether they wish to be). As a consequence, although many of the same factors will likely be important Customary international law does not require the same kind of affirmative act on the part of a state to subject it to the law, but it is generally accepted that states can-with some important exceptions-avoid application of customary international law simply b persistently objecting to it. The persistent objector rule "is an accepted application of the aditional principle that international law essentially depends on the consent of states. Restatement Third) of the Foreign Relations Law of the United States 5 102, Reporters Note 2(1987). On the persistent objector rule, see Ian Brownlie, Principles of Public International Law 10(Oxford 5th ed 1998)(concluding that the persistent objector doctrine is well recognized by international tribunals and in the practice of states); Jonathan Charney Universal International Law, 87 Am J Intl L 529, 538-42(1993)(noting the existence of the ersistent objector rule, but concluding that the rule is open to doubt due to its infrequent use and the existence of several exceptions to it). For an application of the rule, see Fisheri Case United Kingdom v Norway), 1951 IC] 116, 139(holding that the international rule concerning fisheries zones is inapplicable because Norway has always opposed any attempt states to be "bound"by, or have an obligation under, international laip Possible for to apply it to the Norwegian coast). Indeed, some question whether it is even ven sovereignty. Perhaps the most famous statement of the notion that in a world of independent states, sovereignty resides in the states was made by the Permanent Court of International Justice in 1927 in the S.s. Lotus case: " International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law. "The S.S. Lotus(France v Turkey), 1927 PCIj(ser A) No 10, 18. Several works have discussed the dilemma inherent in the notion of obligating a sovereign state, including David Kennedy, International Law and the Nineteenth Century: A History of an Illusion, 17 Quinnipiac L Rev 99, 112-31(1997); Rosalyn Higgins, Problems and Process International Law and How We Use It 13-16(Clarendon 1994); Thomas M. Franck, The Power of legitimacy Among Nations 187-94, 202-07(Oxford 1990); Richard A Falk, The Status of Law in International Society 19-23(Princeton 1970)(concluding that sovereign consent has stalemated attempts to obligate nations to comply with international law derived through consensus, natural law, or consent);JE S. Fawcett, The Law of Nations 6-11 (Oxford 1968)(concluding that international law has a moral basis and an arbitrary structure that is accepted because it makes the conduct of states more constant, more predictable, and so more effectual); Oscar Schachter, Towards a Theory of International Obligation, 8 Vaj Intl L 300, 307(1968)(arguing that obligatory norms, established through the same, consistent five processes, are the basis of obligation in international law); W. Friedmann, Legal Theory 574-80( Columbia 5th ed 1967); James Brierly, The Law of Nations: An Introduction to the International Law of Peace 49-56(Oxford 6th ed 1963); C. Wilfred Jenks, Law, Freedom and Welfare 83-100(Stevens Sons 1963); Hans Kelsen, General Theory of Law and State 341-63(Russell Russell 1961)(Anders Wedberg, transI); James
Between Power and Principle 6 widely understood that states cannot be bound by a treaty unless they agree thereto.11 Commitment does not operate in the same way for customary law (with limited exceptions, states are regarded to be obligated by international customary law regardless of whether they wish to be).12 As a consequence, although many of the same factors will likely be important 11 See Part II.A. 12 Customary international law does not require the same kind of affirmative act on the part of a state to subject it to the law, but it is generally accepted that states can—with some important exceptions—avoid application of customary international law simply by persistently objecting to it. The persistent objector rule “is an accepted application of the traditional principle that international law essentially depends on the consent of states.” Restatement (Third) of the Foreign Relations Law of the United States § 102, Reporters’ Note 2 (1987). On the persistent objector rule, see Ian Brownlie, Principles of Public International Law 10 (Oxford 5th ed 1998) (concluding that the persistent objector doctrine is well recognized by international tribunals and in the practice of states); Jonathan Charney, Universal International Law, 87 Am J Intl L 529, 538–42 (1993) (noting the existence of the persistent objector rule, but concluding that the rule is open to doubt due to its infrequent use and the existence of several exceptions to it). For an application of the rule, see Fisheries Case (United Kingdom v Norway), 1951 ICJ 116, 139 (holding that the international rule concerning fisheries zones is inapplicable because Norway has always opposed any attempt to apply it to the Norwegian coast). Indeed, some question whether it is even possible for states to be “bound” by, or have an obligation under, international law given their sovereignty. Perhaps the most famous statement of the notion that in a world of independent states, sovereignty resides in the states was made by the Permanent Court of International Justice in 1927 in the S.S. Lotus case: “International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law.” The S.S. Lotus (France v Turkey), 1927 PCIJ (ser A) No 10, 18. Several works have discussed the dilemma inherent in the notion of obligating a sovereign state, including David Kennedy, International Law and the Nineteenth Century: A History of an Illusion, 17 Quinnipiac L Rev 99, 112–31 (1997); Rosalyn Higgins, Problems and Process: International Law and How We Use It 13–16 (Clarendon 1994); Thomas M. Franck, The Power of Legitimacy Among Nations 187–94, 202–07 (Oxford 1990); Richard A. Falk, The Status of Law in International Society 19–23 (Princeton 1970) (concluding that sovereign consent has stalemated attempts to obligate nations to comply with international law derived through consensus, natural law, or consent); J.E.S. Fawcett, The Law of Nations 6–11 (Oxford 1968) (concluding that international law has a moral basis and an arbitrary structure that is accepted because it makes the conduct of states more constant, more predictable, and so more effectual); Oscar Schachter, Towards a Theory of International Obligation, 8 Va J Intl L 300, 307 (1968) (arguing that obligatory norms, established through the same, consistent five processes, are the basis of obligation in international law); W. Friedmann, Legal Theory 574–80 (Columbia 5th ed 1967); James Brierly, The Law of Nations: An Introduction to the International Law of Peace 49–56 (Oxford 6th ed 1963); C. Wilfred Jenks, Law, Freedom and Welfare 83–100 (Stevens & Sons 1963); Hans Kelsen, General Theory of Law and State 341–63 (Russell & Russell 1961) (Anders Wedberg, transl); James
Between Power and principle to explaining state compliance with customary law, the way in which the theory operates necessarily will be quite different. The Article proceeds as follows. I begin in Part I by briefly examining the existing international relations and legal literature on the influence of international law on state behavior. I classify the literature into two broad camps--interest-based models and norm- based modelsand seek to trace out in broad outlines the competing explanations offered by each. I conclude this Part by briefly discussing the start of a promising convergence of these two theories upon which this Article seeks to build. Part II begins to delineate my own account of the reach and limits of international law. In this Part, I examine the aspects of international treaty law that have sown the seeds of doubt as to whether it is really "lawat all. I focus particularly on treaty law's largely voluntary nature and the relative absence of central enforcement mechanisms in international law. This discussion forms the foundation for my integrated theory of international law, which I develop in Part Ill. Part IV assesses the theory against existing accounts using new empirical evidence on state behavior under key human rights and environmental treaties, as well as existing empirical studies. Finally, Part V concludes with suggestions for future research and for designing international law arness its real but limited power more effectively Existing literature The divide between advocates and skeptics of international law is in part the legacy of a gradually disappearing schism in scholarship and teaching between students of law and tudents of international relations, manifested institutionally as a split between law schools and political science departments. From the close of World War II through the last decade, scholars at law schools who taught and studied international law ignored many of the questions of context and power relations that had become the central concern of international study in political science departments. Political scientists, for their part, tended to dismiss international law altogether Even within legal academia, international law was, until the last decade, regarded largely as a curiosity-a subject of study truly relevant only to the few who devoted themselves to it. With increased globalization, the isolation of international law has begun to melt away. But what has replaced it is, in many cases, almost equally dismissive. Rather than integrate the work of international legal scholars into the rest of the curriculum, legal academics have instead tended to regard international law merely as an extension of existing areas of domestic law-as simply torts, corporate law, or criminal law that happens to cross Leslie Brierly, The Basis of Obligation in International Law 1-68(Oxford 1958)(Sir Hersch Lauterpacht and C.H.M. Waldock, eds): H. Lauterpacht, The Function of Law in the International Community 3-4(Oxford 1933). For a particularly interesting refutation of the assertion that sovereign states cannot be bound by international law, see H.L.A. Hart, The Concept of Law 215-21(Clarendon 1961). See also Richard L. O'Meara, Note, Applving the Critical urisprudence of International Law to the _ Case Concerning the military and Paramilitary Activities in and against Nicaragua, 71 Va l rev 1183, 1203(1985)(claiming that" a truly independent, sovereign state cannot be bound without its consent")
Between Power and Principle 7 to explaining state compliance with customary law, the way in which the theory operates necessarily will be quite different. The Article proceeds as follows. I begin in Part I by briefly examining the existing international relations and legal literature on the influence of international law on state behavior. I classify the literature into two broad camps—interest-based models and normbased models—and seek to trace out in broad outlines the competing explanations offered by each. I conclude this Part by briefly discussing the start of a promising convergence of these two theories upon which this Article seeks to build. Part II begins to delineate my own account of the reach and limits of international law. In this Part, I examine the aspects of international treaty law that have sown the seeds of doubt as to whether it is really “law” at all. I focus particularly on treaty law’s largely voluntary nature and the relative absence of central enforcement mechanisms in international law. This discussion forms the foundation for my integrated theory of international law, which I develop in Part III. Part IV assesses the theory against existing accounts using new empirical evidence on state behavior under key human rights and environmental treaties, as well as existing empirical studies. Finally, Part V concludes with suggestions for future research and for designing international law to harness its real but limited power more effectively. I. Existing Literature The divide between advocates and skeptics of international law is in part the legacy of a gradually disappearing schism in scholarship and teaching between students of law and students of international relations, manifested institutionally as a split between law schools and political science departments. From the close of World War II through the last decade, scholars at law schools who taught and studied international law ignored many of the questions of context and power relations that had become the central concern of international study in political science departments. Political scientists, for their part, tended to dismiss international law altogether. Even within legal academia, international law was, until the last decade, regarded largely as a curiosity—a subject of study truly relevant only to the few who devoted themselves to it. With increased globalization, the isolation of international law has begun to melt away. But what has replaced it is, in many cases, almost equally dismissive. Rather than integrate the work of international legal scholars into the rest of the curriculum, legal academics have instead tended to regard international law merely as an extension of existing areas of domestic law—as simply torts, corporate law, or criminal law that happens to cross Leslie Brierly, The Basis of Obligation in International Law 1–68 (Oxford 1958) (Sir Hersch Lauterpacht and C.H.M. Waldock, eds); H. Lauterpacht, The Function of Law in the International Community 3–4 (Oxford 1933). For a particularly interesting refutation of the assertion that sovereign states cannot be bound by international law, see H.L.A. Hart, The Concept of Law 215–21 (Clarendon 1961). See also Richard L. O’Meara, Note, Applying the Critical Jurisprudence of International Law to the Case Concerning the Military and Paramilitary Activities in and against Nicaragua, 71 Va L Rev 1183, 1203 (1985) (claiming that “a truly independent, sovereign state cannot be bound without its consent”)
Between Power and principle borders. This vision, while partially accurate, fails to acknowledge the ways in which international law is fundamentally different from its domestic counterpart.+ Nonetheless, over the past decade, two broad theoretical approaches regarding the role of international law in state behavior have started to cut across the disciplinary divide between political science and international legal scholarship. The first, which I term the interest-based approach, argues that states create and comply with international law only when there is some clear objective reward for doing so; in other words, states follow consequentialist reasoning or what has been termed the "logic of consequences. The ond, which I label the norm-based approach, argues that governments create and comply with treaties not only because they expect a reward for doing So, but also because of their commitment(or the commitment of transnational actors that influence them)to the norms or ideas embodied in the treaties. Hence in this view states often follow what has been termed the "logic of appropriateness"rather than that of consequences. Moreover, nonstate and substate actors are the focus of much more attention in the norm-centered account than in the interest-centered one, for they play an important role in constructing state preferences. As I shall show in the brief review that follows, each of the valuable insights into the ways in which states react to international law. />se accounts offers 13 Harold Koh writes: [T]hat reminds me of something a former law school dean told me sixteen ras coming to Yale to teach International H Transactions: that there is no genuinely transnational body of international business law because transnational business law is like that famous non- book, The Law of the Horse, which consists of Chapter I: Contracting for a Horse, " Chapter II: Owning a Horse, Chapter Ill, "Torts by a Horse, and Chapter Iv: "Litigating over a Horse Harold Hongju Koh, The Globalization of Freedom, 26 Yale J Intl L 305, 305 (2001). Moreover, international law is rarely a required course in law school; this reflects a widespread belief among legal academics that an understanding of international law is uperfluous to a solid legal education See discussion in Part IL. A-B James G. March and Johan P. Olsen introduce the terms"logic of consequences" and"logic of appropriateness, which they draw from their study of cognitive psychology in their research on organizations and political institutions. James G. March and Johan P Olsen, Rediscovering Institutions: The Organizational Basis of Politics 160-62 (Free Press 1989)(comparing the logic of consequences-where behavior is willful, fills subjective desires, and is driven by preferences and expectations about consequences-with the logic of appropriateness--where behavior is intentional, fills the obligations of a role in a situation, and stems from a conception of necessity, rather than preference). See also James G. March and Johan P Olsen, The Institutional Dynamics of International Political Orders 52 Intl Org 943, 949-54(1998); John W. Meyer and Brian Rowan, Institutionalized Organizations: Formal Structure as Myth and Ceremony, 83 Am J Sociology 340(1977) (critiquing the reliance on consequentialist logic in the social sciences The line between the interest-based and norm-based approaches is far absolute. Interest-based models often fall back on normative insights in order to explain
Between Power and Principle 8 borders.13 This vision, while partially accurate, fails to acknowledge the ways in which international law is fundamentally different from its domestic counterpart.14 Nonetheless, over the past decade, two broad theoretical approaches regarding the role of international law in state behavior have started to cut across the disciplinary divide between political science and international legal scholarship. The first, which I term the interest-based approach, argues that states create and comply with international law only when there is some clear objective reward for doing so; in other words, states follow consequentialist reasoning or what has been termed the “logic of consequences.”15 The second, which I label the norm-based approach, argues that governments create and comply with treaties not only because they expect a reward for doing so, but also because of their commitment (or the commitment of transnational actors that influence them) to the norms or ideas embodied in the treaties. Hence, in this view, states often follow what has been termed the “logic of appropriateness” rather than that of consequences. Moreover, nonstate and substate actors are the focus of much more attention in the norm-centered account than in the interest-centered one, for they play an important role in constructing state preferences.16 As I shall show in the brief review that follows, each of these accounts offers valuable insights into the ways in which states react to international law.17 13 Harold Koh writes: [T]hat reminds me of something a former law school dean told me sixteen years ago when I said I was coming to Yale to teach International Business Transactions: that there is no genuinely transnational body of international business law, because transnational business law is like that famous nonbook, The Law of the Horse, which consists of Chapter I: “Contracting for a Horse,” Chapter II: “Owning a Horse;” Chapter III, “Torts by a Horse,” and Chapter IV: “Litigating over a Horse.” Harold Hongju Koh, The Globalization of Freedom, 26 Yale J Intl L 305, 305 (2001). Moreover, international law is rarely a required course in law school; this reflects a widespread belief among legal academics that an understanding of international law is superfluous to a solid legal education. 14 See discussion in Part II.A–B. 15 James G. March and Johan P. Olsen introduce the terms “logic of consequences” and “logic of appropriateness,” which they draw from their study of cognitive psychology in their research on organizations and political institutions. James G. March and Johan P. Olsen, Rediscovering Institutions: The Organizational Basis of Politics 160–62 (Free Press 1989) (comparing the logic of consequences—where behavior is willful, fills subjective desires, and is driven by preferences and expectations about consequences—with the logic of appropriateness—where behavior is intentional, fills the obligations of a role in a situation, and stems from a conception of necessity, rather than preference). See also James G. March and Johan P. Olsen, The Institutional Dynamics of International Political Orders, 52 Intl Org 943, 949–54 (1998); John W. Meyer and Brian Rowan, Institutionalized Organizations: Formal Structure as Myth and Ceremony, 83 Am J Sociology 340 (1977) (critiquing the reliance on consequentialist logic in the social sciences). 16 The line between the interest-based and norm-based approaches is far from absolute. Interest-based models often fall back on normative insights in order to explain
Between Power and principle A. Interest-Based Models The interest-based approach has its roots in the realist view of international cooperation, which became dominant in American political science scholarship in the wake of World War II. In this view, states are seen as rational, unitary actors in pursuit of self interest. Early realist accounts used this vision of state action to argue that internationa agreements exist and are enforced only when they serve the interests of the most powerful states. More recent scholarship, by contrast, argues that regimes"including legal otherwise inexplicable state behavior in the human rights arena, and norm-centered accounts do not deny the power of rational self-interest to motivate state behavior. Indeed, Moravcsik has aptly labeled this a"curious convergenceof the two main theoretical accounts in his work on the European Convention on Human Rights. Moravcsik, 54 Intl Org at 224-25 (cited in note 7). Moreover, several scholars have done excellent work at the intersection of interest-based and norm-based accounts. See, for example, Martin Shapiro Alec Stone Sweet, Governing with Judges: Constitutional Powers in Europe(2000). And much work in the so-called English School of international relations cannot be characterized as falling solely within one camp or the other. The goal here is therefore not to exaggerate the differences between the approaches, but simply to outline the prevailing modes of thought on the role of international law in shaping state behavior 17 This outline (as well as what follows) necessarily simplifies what are deeply complex theoretical accounts For a more comprehensive introduction to these theoretical approaches, see Oona A Hathaway and Harold Hongju Koh, Foundations of International Law and Politics(Foundation Press 2004). See also Oona A Hathaway, Do Human Rights Treaties Make a Difference,, 111 Yale L J 1935, 1942-62(2002) 8 Indeed, E H. Carr and Hans Morgenthau, among others, made the case that states are simply rational unitary actors motivated by their geopolitical interests. Law, in this view, is nothing more than one of a variety of tools used by states to enhance their own power See generally Morgenthau, Politics Among Nations(cited in note 3); Carr, The Twenty Years Crisis(cited in note 3); Morgenthau, 34 Am J Intl L 260(cited in note 3). In the 1970s, Kenneth Waltz and others expanded on the realist perspective, arguing that states may pursue a broader set of interests and sometimes make strategic decisions to engage in international cooperation. Nonetheless, even in this "neorealist" approach, states primary motivation remains preservation and accumulation of power. As Waltz put it in his classic book, Theory of International Politics, states are "unitary actors who, at a minimum seek their own preservation and, at a maximum, drive for universal domination. Kenneth N Waltz, Theory of International Politics 118(McGraw-Hill 1979). In this view, the most powerful states create and join treaties that advance their power interests and then force eaker states to join and comply by threatening sanctions or promising benefits defined as "sets of implicit or explicit principles, norms, rules, and decision-making procedures around which actors' expectations converge in a given area of international relations. Stephen D. Krasner, Structural Causes and Regime Consequences: Regimes as Intervening Variables in Stephen D. Krasner, ed, International Regimes 1, 2 (Cornell 1983). Compare Robert O. Keohane and Joseph S. Nye, Power and
Between Power and Principle 9 A. Interest-Based Models The interest-based approach has its roots in the realist view of international cooperation, which became dominant in American political science scholarship in the wake of World War II. In this view, states are seen as rational, unitary actors in pursuit of selfinterest. Early realist accounts used this vision of state action to argue that international agreements exist and are enforced only when they serve the interests of the most powerful states.18 More recent scholarship, by contrast, argues that regimes19—including legal otherwise inexplicable state behavior in the human rights arena, and norm-centered accounts do not deny the power of rational self-interest to motivate state behavior. Indeed, Moravcsik has aptly labeled this a “curious convergence” of the two main theoretical accounts in his work on the European Convention on Human Rights. Moravcsik, 54 Intl Org at 224–25 (cited in note 7). Moreover, several scholars have done excellent work at the intersection of interest-based and norm-based accounts. See, for example, Martin Shapiro & Alec Stone Sweet, Governing with Judges: Constitutional Powers in Europe (2000). And much work in the so-called English School of international relations cannot be characterized as falling solely within one camp or the other. The goal here is therefore not to exaggerate the differences between the approaches, but simply to outline the prevailing modes of thought on the role of international law in shaping state behavior. 17 This outline (as well as what follows) necessarily simplifies what are deeply complex theoretical accounts. For a more comprehensive introduction to these theoretical approaches, see Oona A. Hathaway and Harold Hongju Koh, Foundations of International Law and Politics (Foundation Press 2004). See also Oona A. Hathaway, Do Human Rights Treaties Make a Difference?, 111 Yale L J 1935, 1942–62 (2002). 18 Indeed, E.H. Carr and Hans Morgenthau, among others, made the case that states are simply rational unitary actors motivated by their geopolitical interests. Law, in this view, is nothing more than one of a variety of tools used by states to enhance their own power. See generally Morgenthau, Politics Among Nations (cited in note 3); Carr, The Twenty Years Crisis (cited in note 3); Morgenthau, 34 Am J Intl L 260 (cited in note 3). In the 1970s, Kenneth Waltz and others expanded on the realist perspective, arguing that states may pursue a broader set of interests and sometimes make strategic decisions to engage in international cooperation. Nonetheless, even in this “neorealist” approach, states’ primary motivation remains preservation and accumulation of power. As Waltz put it in his classic book, Theory of International Politics, states are “unitary actors who, at a minimum seek their own preservation and, at a maximum, drive for universal domination.” Kenneth N. Waltz, Theory of International Politics 118 (McGraw-Hill 1979). In this view, the most powerful states create and join treaties that advance their power interests and then force weaker states to join and comply by threatening sanctions or promising benefits. 19 Regimes are defined as “sets of implicit or explicit principles, norms, rules, and decision-making procedures around which actors’ expectations converge in a given area of international relations.” Stephen D. Krasner, Structural Causes and Regime Consequences: Regimes as Intervening Variables in Stephen D. Krasner, ed, International Regimes 1, 2 (Cornell 1983). Compare Robert O. Keohane and Joseph S. Nye, Power and
Between Power and principle regimes--can influence the behavior of international actors. States create and comply with the requirements of international regimes, these scholars claim, because the regimes allow Interdependence: World Politics in Transition 19(Little Brown 1977)(defining internation regimes as " governing arrangements that affect relationships of interdependence, or networks of rules, norms, and procedures that regularize behavior and control its effects") term"regimes"is now commonly used interchangeably with "institutions. See, for example, Ronald B. Mitchell and Patricia M. Keilbach, Situation Structure and Institutional Design: Reciprocity, Coercion, and Exchange, in Barbara Koremenos, Charles Lipson, and Duncan Snidal, eds, The Rational Design of International Institutions 131, 133(2004)(We also use the term regime interchangeably with institution. )(emphasis added In political science, recent variants of this approach are variously labeled"modified tructural realism,”“ intergovernmental institutionalism,”"“ neoliberal institutionalism,”and new institutionalism. See, for example, Robert O. Keohane, Theory of World Politics: Structural Realism and Bevond, in Robert O Keohane, ed, Neorealism and Its Critics_158, 190-97( Columbia 1986)(outlining a research plan for Modified Structural Realism) Friedrich Kratochwil and John Gerard Ruggie, International Organization: A State of the Art on an Art of the State, 40 Intl Org 753, 759-60(1986)(explaining that international regimes can help clarify why in the 1970s states did not respond to the pressure on institutional arrangements in "beggar-thy-neighbor terms"); Robert O. Keohane, After Hegemony: Cooperation and Discord in the World Political Economy 63(Princeton 1984)("Theories of regimes can incorporate realist insights about the role of power and interest, while also indicating the inadequacy of theories that define interests so narrowly that they fail to take he role of institutions into account. ) Modified Structural Realism is the immediate bridge from Structural Realism, often referred to as Neorealism. See, for example, Robert O Keohane, Realism, Neorealism and the Study of World Politics, in Keohane, ed, Neorealism and Its Critics 1, 17. See, for example, Judith Goldstein, et al, eds, Legalization and World Politics (MiT 2001)(examining the legalization of regimes and the impact of regimes on world politics); Barbara Koremenos, Charles Lipson, and Duncan Nidal, The Rational Design of International Institutions, in Barbara Koremenos, Charles Lipson, and Duncan Snidal, eds, The Rational Design of International Institutions 1, 2, 3, 7(2004)(referring to various treaties as included among the institutions the volume examines). Legal scholars have contributed to this reconceptualization by using institutionalist approaches to examine state compliance with international law. See Andrew T Guzman, A Compliance-Based Theory of International Law, 90 Cal L Rev 1823(2002)(putting forward a theory of international legal compliance in which rational, self-interested states and international law punish violations through reputational and direct sanctions); Jack L. Goldsmith and Eric A. Posner, A Theory of Customary International Law, 66 U Chi L Rev 1113(1999)(presenting a theory of customary international law that draws on rational choice theory); John K. Setear, Ar Iterative Perspective on Treaties: A Synthesis of International Relations Theory and International Law, 37 Harv Intl LJ 139(1996)(using an institutional approach to explain the Law of Treaties
Between Power and Principle 10 regimes—can influence the behavior of international actors.20 States create and comply with the requirements of international regimes, these scholars claim, because the regimes allow Interdependence: World Politics in Transition 19 (Little Brown 1977) (defining international regimes as “governing arrangements that affect relationships of interdependence,” or “networks of rules, norms, and procedures that regularize behavior and control its effects”). The term “regimes” is now commonly used interchangeably with “institutions.” See, for example, Ronald B. Mitchell and Patricia M. Keilbach, Situation Structure and Institutional Design: Reciprocity, Coercion, and Exchange, in Barbara Koremenos, Charles Lipson, and Duncan Snidal, eds, The Rational Design of International Institutions 131, 133 (2004) (“We also use the term regime interchangeably with institution.”) (emphasis added). 20 In political science, recent variants of this approach are variously labeled “modified structural realism,” “intergovernmental institutionalism,” “neoliberal institutionalism,” and “new institutionalism.” See, for example, Robert O. Keohane, Theory of World Politics: Structural Realism and Beyond, in Robert O Keohane, ed, Neorealism and Its Critics 158, 190–97 (Columbia 1986) (outlining a research plan for Modified Structural Realism); Friedrich Kratochwil and John Gerard Ruggie, International Organization: A State of the Art on an Art of the State, 40 Intl Org 753, 759–60 (1986) (explaining that international regimes can help clarify why in the 1970s states did not respond to the pressure on institutional arrangements in “beggar-thy-neighbor terms”); Robert O. Keohane, After Hegemony: Cooperation and Discord in the World Political Economy 63 (Princeton 1984) (“Theories of regimes can incorporate realist insights about the role of power and interest, while also indicating the inadequacy of theories that define interests so narrowly that they fail to take the role of institutions into account.”). Modified Structural Realism is the immediate bridge from Structural Realism, often referred to as Neorealism. See, for example, Robert O. Keohane, Realism, Neorealism and the Study of World Politics, in Keohane, ed, Neorealism and Its Critics 1, 17. See, for example, Judith Goldstein, et al, eds, Legalization and World Politics (MIT 2001) (examining the legalization of regimes and the impact of regimes on world politics); Barbara Koremenos, Charles Lipson, and Duncan Snidal, The Rational Design of International Institutions, in Barbara Koremenos, Charles Lipson, and Duncan Snidal, eds, The Rational Design of International Institutions 1, 2, 3, 7 (2004) (referring to various treaties as included among the institutions the volume examines). Legal scholars have contributed to this reconceptualization by using institutionalist approaches to examine state compliance with international law. See Andrew T. Guzman, A Compliance-Based Theory of International Law, 90 Cal L Rev 1823 (2002) (putting forward a theory of international legal compliance in which rational, self-interested states and international law punish violations through reputational and direct sanctions); Jack L. Goldsmith and Eric A. Posner, A Theory of Customary International Law, 66 U Chi L Rev 1113 (1999) (presenting a theory of customary international law that draws on rational choice theory); John K. Setear, An Iterative Perspective on Treaties: A Synthesis of International Relations Theory and International Law, 37 Harv Intl L J 139 (1996) (using an institutional approach to explain the Law of Treaties)
