Tuesday, 06 April 2010
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International Agreements 101
International agreements exhibit a wide range of variation. Many are negotiated as legally binding agreements, while others are expressly nonbinding.
Some contain substantive obligations requiring deep, demanding policy changes; others demand little or simply ratify the status quo ante.
Some specify institutions to monitor and sanction noncompliance; others create no review structure at all.
Thus, there is considerable variation both in the form of international agreements-in their legal bindingness, as well as in the range of structural provisions for monitoring and addressing noncompliance-and in the substantive obligations they impose.
This variation in form and substance raises several fundamental questions about the role of international agreements in world politics. '
Why do states differentiate commitments into those which are legally binding and those which are not?
What relationship exists between legality and the substantive provisions of an accord, and between legality and structural provisions for monitoring behavior?
What is the relationship between substantive obligations and monitoring provisions?
Finally, what difference, if any, do these choices make as to the effectiveness of an agreement?
This article presents a conceptual framework for analyzing the architecture of international agreements. Using the concepts of form and substance, it examines three features of agreements, two related to form and one to substance. Legality refers to the choice between legally binding and nonlegally binding accords (for simplicity, I term this a choice between contracts and pledges).
Substance refers to the deviation from the status quo that an agreement demands. Structure refers to provisions for monitoring and penalizing violators. Each of these terms represents a distinct design element. Yet there are systematic trade-offs among them. Only by understanding these trade-offs can we understand the design and operation of agreements.
The framework advanced in this article makes these trade-offs clear, while also reorienting current research in international law. For example, one area that recent scholarship has focused on is compliance with pledges. But without attention to the relationships between legality, substance, and structure, much of this work is inconclusive. In other areas where progress has been made, as in the choice of legal form, the prevailing explanations are incomplete and can be improved by accounting systematically for the connections between design features.
Using this framework, I make several claims about the architecture of agreements. First, I argue that the notion of "soft law" agreements is incoherent. Under the prevailing approach, pledges are being smuggled into the international lawyer's repertoire by dubbing them soft law. Just as frequently, scholars declare that contracts containing vague or imprecise commitments are actually soft. In so doing, these commentators are conflating the legality of agreements with structure (in particular, enforcement features) or substance (e.g., rule precision), or effects with causes (i.e., looking to behavioral effects to demonstrate international law's existence). Both sets of moves elaborate a conceptual category-soft law agreements-that has no compelling basis in state practice or legal theory. I argue instead for a sharp demarcation between pledge and contract. I show why this demarcation makes sense and how it unlocks puzzles in agreement design.
Second, I provide a causal account of the choice between pledges and contracts. States choose on the basis of a combination of functional concerns of credibility and flexibility, the configuration of power, and the demands of domestic interest groups and the structure of domestic institutions. These factors roughly correspond to three theories of international relations: institutionalism, realism, and liberalism. I also argue that pledges, though nonlegal agreements, are emphatically the province of international lawyers: to understand how nonlegal agreements work, one must understand how legal agreements work.
Third, I sketch the relationships between legality, structure, and substance. Prevailing accounts of the choice between pledge and contract focus on a functional trade-off between ex ante credibility and ex post flexibility, and are consistent with two contradictory ways that legality influences the content of substantive obligations. I argue that liberal theory, which privileges domestic political variables and institutions, helps explain when contracts are substantively deep and demanding and when they are shallow and weak. Likewise, legality influences the structure of compliance review, as does the nature of substantive obligations. The core point is twofold. We cannot understand the form or substance of an international accord in isolation because the connections between the various elements shape empirical outcomes. And we cannot understand the connections between form and substance without looking to domestic politics and institutions.
Finally, I conclude with some prescriptive claims about the design of agreements. The central thrust of my analysis-that there are systematic trade-offs between form and substance-suggests that advocates as well as analysts should pay more attention to the complex architecture of international agreements and treat agreement design holistically. In particular, I argue that the widespread preference for contracts often unduly weakens the substance and structure of multilateral agreements when states are uncertain about compliance costs. States often compensate for the risk of then- own noncompliance by weakening monitoring or watering down commitments. This tendency can be exacerbated by the need for widespread adherence and the opportunity to exercise power this need creates. Pledges mitigate these tendencies, permitting states to accept more risks in the face of uncertainty. Consequently, although pledges are often viewed as second-best alternatives, they can, under some circumstances, be first-best. I suggest why and when this is likely to be true.
I. THREE DIMENSIONS OF INSTITUTIONAL DESIGN
The tripartite conceptual framework in this article is a radical simplification. It does not address important aspects of agreement design, and it dichotomizes those dimensions it does address. This simplicity, however, has a great virtue: it clarifies the interaction of these elements. How these elements relate to each other is the key theme of this article. Because the interaction of design elements has not received systematic attention, even this basic framework illuminates important questions about the architecture of agreements.
Legality
The contemporary international system is suffused with agreements. However, international cooperation need not involve a legally binding or even a written accord. Indeed, many important agreements have been tacit or unwritten. International accords also need not be public. secret agreements formed a central part of President Woodrow Wilson's critique of the old international order. Less in favor today, they nonetheless were used throughout the twentieth century. "Gentlemen's agreements" also have a long history. Thus, the variety of international agreements is great. Nevertheless, in most cases of interest, written open agreements are drafted to codify and clarify the terms of cooperation. This class encompasses both contracts and pledges. The Vienna Convention on the Law of Treaties defines treaties (contracts) as "international agreement[s] concluded between States in written form and governed by international law." Although treaties are fairly well-defined under international law, if circularly so, the boundaries of soft law are more indeterminate. In practice, usage of the term varies widely. Decisions by international organizations, their internal policies, negotiated agreements between states (or their constituent elements), and even resolutions of the UN General Assembly have all been declared a form of soft law. My focus here, however, is on explicit agreements between states.
Agreements display significant variation in legality. Examples of contracts include the 1945 UN Charter, the 1985 South Pacific Nuclear Free Zone Treaty, the 1989 Convention on the Rights of the Child, the 1995 Convention on Stolen or Illegally Exported Cultural Objects, and the 2001 Convention on Persistent Organic Pollutants.
Pledges include the 1975 Helsinki Final Act, the 1985 Plaza Accord on Exchange Rates, the 1988 Basel Accord on capital adequacy, the 1992 Non-Legally Binding Audioritative Statement on Forest Principles, the 1997 NATO-Russia Founding Act, and the 2004 pact of the Paris Club of creditor states to forgive Iraqi sovereign debt. Many observers have noted the increased prominence of pledges in international cooperation. While pledges sometimes evolve into contracts, many pledges remain nonbinding permanently. In international monetary affairs, we even observe the reverse: the transformation from contract to pledge.
Substance
Whether pledge or contract, an international accord can vary significantly in its obligations. Substance refers to the substantive commitments the pact contains-for example, does it require a state to refrain from developing nuclear weapons, to restrict fish harvests, or to provide for a twenty-year patent term? Because substance is multifaceted, to simplify my analysis I focus on one key dimension. As others have previously argued, agreements vary widely in depth. Depth is "the extent to which [an agreement] requires states to depart from what they would have done in its absence." Some accords are deep: they require states to make major changes in policy. Others are shallow: they codify what states are already doing or demand only minor changes in behavior. Depth clearly varies for each party to an agreement; what is deep for one state may be shallow for others. Moreover, states may often reserve out of specific provisions, altering the depth of the agreement for them. I put aside these admittedly significant differences and try to capture the overall, or average, depth of an agreement. This is to simplify gready, but the alternative-to consider the differences among 120 parties, or more-makes analysis impossible.
The concept of depth does not capture some critical aspects of the substance of agreements. For example, there is a large difference between security alliances and agreements on postal cooperation, even if examples of both require large deviations from prior behavior. But because depth is a variable that cuts across all types of agreements, and because it reflects the degree to which states in the aggregate are committing themselves to change their behavior, depth captures a critical component of cooperation. The World Trade Organization regime is an exemplar of deep cooperation. Extensive rules govern a wide array of trade issues and demand meaningful changes from many parties. Conversely, the Non-Proliferation Treaty and the UN Framework Convention on Climate Change (FCCC) are shallower. The former codified the existing behavior of most states; the latter demanded minor obligations related to reporting and review. I should underscore that codifying behavior can, at times, be significant in that it may prevent change in the status quo-as is certainly true for the Non-Proliferation Treaty. (A sophisticated reading of depth might track agreed obligation against the behavioral trend line, rather than against existing behavior. But I do not engage such subtleties here.)
Again, this concept of depth is a simplification. Yet depth is important because it captures the extent to which states commit themselves to serious changes in behavior.
Structure
Structure refers to the rules and procedures created to monitor parties' performance. An agreement's structure comprises those elements that seek both to provide information about performance and to deter and punish noncompliance. This conception is again purposely limited. Structure does not refer to whether an agreement is "enforced," in the sense that parties in fact are deterred from noncomplying. Structure refers only to the mechanisms for monitoring and enforcing performance. Effective enforcement is an outcome that may vary on the basis of a range of other factors: the nature of the parties, the legality and substance of the agreement, the precise sanctions employed, and so forth.
Extensive variation is found in the structure of agreements. Some accords employ third-party dispute resolution accessible only to states, while others grant standing to individuals. Some require only self-reporting, some include on-site inspections, and some penalize violators. Some create no structure of review at all. To simplify this complexity, I again use binary categories: weak and strong. Weak structures are those in which review of performance and sanctions for nonperformance are minimal or nonexistent. In agreements in this category, the parties may self-report, but those reports are not analyzed or are only analyzed collectively. This category also includes systems with no review at all. Strong structures are those in which a central body issues a specific determination about a specific party. Such determinations may concern compliance, based either on the body's own investigations (a "police patrol" system) or on claims of private actors (a "fire alarm" system). Strong structures may, but need not, include sanctions; weak structures never include this feature. Strong review structures add value to raw information about behavior, through publicizing, analyzing, or taking action based on that information. The issuance of party-specific decisions, in other words, constitutes an essential part of strong structures.
Scope of the Argument
In advancing this simple tripartite framework, I limit my analysis to agreements between states. I do not analyze the use of agreements between states and nonstate entities or substate units of federal states. While conceptually narrow, this category encompasses the vast majority of major agreements in existence today.
States bargain over international agreements intensively because there are myriad ways to craft an accord. My framework glosses over numerous details, but it is of help in systematically dividing up the many choices states face. Most important, I use this framework to illustrate some basic connections between these three dimensions. By exploring these connections we can improve our understanding of international cooperation and the role of law within it.
Abstract from AJIL Vol 99; Issue 3 per Kal Raustiala
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