A Parsimonious Approach to (How) International Law (Works)

by Jeffrey Dunoff

How International Law Works [HILW] is a terrific book. For current purposes, I am less interested in the specifics of Andrew’s arguments than I am in his larger project – the explanation of international law in rational choice/game theoretic terms.

HILW employs standard rational choice assumptions, for example, that states “are rational, self-interested, and able to identify and pursue their interests.” The book’s goal is to explore, in light of these assumptions, “how international legal obligations might influence state behavior.” Much of HILW’s analytical and rhetorical strength lies in its relatively parsimonious model of state preferences, interests and behavior.

My interest is in whether there is a connection between the parsimony of these rational choice assumptions and the relatively parsimonious vision of international law that emerges in HILW? Consider, for example, HILW’s the discussion of treaties. HILW tells us that “states make commitments of their own in order to extract commitments from other states.” We might ask if rational choice approaches compel this understanding of the purpose of treaties — and whether this account of states’ motivations for entering into treaties is incomplete. For example, states sometimes enter into treaties to lock in domestic reforms. Many argue that the Salinas government joined NAFTA to prevent future Mexican governments from adopting policies hostile to foreign investment. Other times, states enter into treaties for reasons that have little to do with the treaty’s underlying subject matter. Consider the Convention on Long-Range Transboundary Air Pollution; most states who signed this treaty had little interest in acid rain but viewed the treaty as a vehicle to promote East-West detente. Finally, states may enter into treaties for expressive reasons or to embarrass other states – think of the Apartheid Convention – and may harbor few illusions that the treaty will actually change state behavior.

Similarly, HILW is centrally concerned with “compliance,” which the book seems to take as referring straightforwardly to behavior in conformity with treaty obligations. But as Kal Raustiala, Ben Kingsbury and others have persuasively argued, the concept of compliance is hardly straightforward. Rather, the significance of behavior in conformity with rules will vary significantly depending on how one understands the nature, purpose and functions of “international law.” Traditional positivist accounts are rule based. But there are competing process-based views, including the New Haven School’s vision of law as a process of authoritative and controlling decision making, and recent accounts that understand law in terms of a transnational legal process. Other approaches would include liberal accounts, which focus on the compliance as resulting from particular constellations of domestic political forces, and competing constructivist accounts. The point is that any particular conception of compliance presupposes a contested and controversial understanding of international law.

So I think the larger methodological issues HILW raises relate to the relationship between any particular understanding of international law and efforts to construct game-theoretic accounts of how international law works. Can rational choice shed light on which of these competing theories of international law to embrace? More importantly, does the parsimonious rational choice account of state behavior drive the book’s conception of international law — or does the parsimonious conception of international law drive the game-theoretic analysis that follows? In other words, might the very definitions of relevant issues, actors, and preferences in rational choice accounts depend on an unacknowledged (and controversial) conception of the preexisting international order? HILW’s focus on, say, treaties rather than evolving international regimes; on sovereign states to the virtual exclusion of other relevant international legal actors; and on compliance as conformity with rules all presuppose a particular—and controversial— vision of the international legal order.

In short, can rational choice accounts be built upon conceptions of international law that view it more as a process of authoritative decision making than as a bundle of rules, that focus more on the evolving trajectory of complex legal regimes than on the ratification of treaty norms, and that understands compliance not simply as a matter of rational calculation but also as a product of internalized identities and norms of appropriate behavior. If the answer to this inquiry is “no,” than we can understand HILW as an important illustration of both the promise – and the limits – of rational choice explanations of how international law works.

http://opiniojuris.org/2008/02/12/a-parsimonious-approach-to-how-international-law-works/

Comments are closed.