Raustiala on How International Law Works

by Kal Raustiala

The conversation thus far has been interesting, but I want to bring up some new issues that we have not yet discussed. I have long been interested in how international agreements work, in part because since the end of the Second World War (at least) international agreements have been the most significant source of international law, and in part because this is one of the more natural areas of overlap between international legal theory and international relations theory. For a long time both fields studied the same topic, but used different nomenclature: “regimes,” “treaties,” “institutions,” and so forth. Regime was the label preferred in IR circles, but as the late Abe Chayes often said, at the core of almost every regime is a treaty. Indeed, he claimed that political scientists were basically just afraid to use “the L word.” That fear is generally gone now, and one of the results is that we have an increasing supply of papers on the topic of how agreements actually work and why they look the way they do.

Andrew’s book delves into these topics on a number of fronts. I want to focus briefly an issue he raises in his opening post: the distinction between hard law and soft law. At one level is this is a narrow question about why we see different types of international agreements and what difference these types make.

At another level, however, this topic is emblematic of a larger issue, or claim, at the heart of Andrew’s approach. For the most part his analysis of international law proceeds as if “law” does not matter very much. What does matter is commitment, and he explores the different ways states make commitments and, most importantly, the ways they make those commitments credible to other actors. Law per se is not all that important to this discussion. Consequently, whether an agreement is soft law or hard law is, in his view, not very significant. As he says in his opening post, “there is no stark difference between the two.”

I find the term soft law largely oxymoronic. But to make things easier, I will use it here. Let’s first consider whether there is really is little difference between hard and soft law in terms of effects. The standard lawyers view is that a hard law agreement is more meaningful (more “binding”) than a soft law agreement. But since international law lacks the enforcement mechanisms of domestic law, what binding means in this context is hard to say.

For Andrew the answer is more commitment. He suggests that hard law is really no different than writing down a treaty on special red paper that everyone agrees means that a commitment is really, really serious. But at the same time he points out that the stringency of commitment can be varied by manipulating a whole host of treaty design features and by staking reputation in other, extra-treaty ways. As a result, whether an agreement is hard or soft doesn’t really matter all that much; it is the overall level of commitment that matters. It is definitely worth thinking about whether this claim is correct—that “law” in the international system is really just a way of saying, “I really mean it this time.”

To some degree I think he is right. In other work I have made similar claims to his about the design of treaties (see e.g. Form and Substance in International Agreements, AJIL 2005). But one problem with Andrew’s approach is that there is substantial evidence that governments pay a lot of attention to whether an agreement is legally binding or not, and they are very careful about labeling, or at least signaling, which is which. And since they possess other levers—other treaty design features—that enable them to calibrate the level of commitment, it isn’t clear why the hard law/soft law distinction matters so much to states, at least in Andrew’s worldview.

In short, the empirical behavior of governments suggests that there is some difference between the two that matters more than his theory suggests it should. The question is, from a rational choice perspective, what is the difference? First, a legally-binding commitment often leads to significant domestic effects, such as the need to get legislative approval. Governments have an incentive to choose hard or soft law in part because of these domestic legal effects. These effects are largely left out of his analysis, but they are clearly important.

Second, it may be that domestic actors, civil society, and other “constituencies for cooperation” think that international law is quite a bit like domestic law, and so naturally want to see “real” treaties rather than soft law substitutes. Governments rationally supply these treaties. There is some evidence for this claim; soft law agreements seem most common in technocratic areas in which domestic political groups don’t really have a strong presence. But this claim requires some further assumptions about these constituencies being unsophisticated about international law, and these claims maybe aren’t all that warranted.

There is more to be said about this, of course, but it worth thinking more about what role law per se actually plays in international cooperation and especially in international agreements. This question is a big one.

http://opiniojuris.org/2008/02/12/raustiala-on-how-international-law-works/

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