Treaties and Soft Law Stories, A Reply to Raustiala

by Andrew Guzman

Kal’s comment raises some interesting questions about the nature of international law and what it means to be a treaty rather than soft law. He juxtaposes hard law and soft law, as I did in my opening comments. Let me suggest another comparison – hard law in the international context and domestic law. The contrast here is stark and obvious – domestic law usually comes with the potential of coercive enforcement while international law rarely does. So based on that comparison, you might say that not only is the term “soft law” oxymoronic, as Kal says, but so is the term “international law.” International law does not “bind” a state in anything like the way domestic law binds domestic actors. The point here is that whatever soft law is, and whatever international law is, worrying about whether they should be called “law” makes little sense unless we know what “law” is. How International Law Works is, in significant part, an effort to help us understand what international law is.

Kal argues that there may be more to the distinction between hard and soft law than my book suggests. He says that governments pay a lot of attention to whether or not an agreement is legally binding under international law. Clearly states do worry about the legal status of agreements, but they also worry about a bunch of other things as well. Soft law agreements (Helsinki Final Act, Basel Accord, Universal Declaration of Human Rights, cooperation agreements in competition law and securities, etc) are common and often appear to generate high levels of compliance. So I think I am a little less persuaded than Kal that there is a bright line dividing treaties from soft law.

That is not to say that I think there is no difference between the two. I would quibble with Kal’s statement that I believe it is “not very significant” whether an agreement is hard or soft law. Differences of degree are nevertheless differences, and I think it does increase the level of commitment when states enter into treaties.

There is a literature in both law and political science about why states choose treaties rather than soft law, and some of it focuses on the domestic implications of treaties. I largely agree with the suggestion in this literature (and in Kal’s post) that these domestic effects matter. To prove it to you let me quote from my book: “Perhaps the most important influences on the decision [to choose hard law rather than soft law] are the domestic law implications of selecting a treaty. This is certainly the most conventional account of the choice between hard and soft law, and is surely an important influence on the decision.” (p. 145). So I agree with the importance of these effects. This is an area in which work by legal scholars, informed by the existing international relations literature, could make a big contribution.

I find Kal’s second hypothesis – that some domestic constituencies prefer hard law over soft law because they think international law is quite a bit like domestic law and so want to see “real” treaties – more problematic. The argument would have to go something like the following. Human rights groups like Amnesty International lobby to get human rights treaties drafted, and to get states to join. They have a strong preference for treaties because they, in effect, confuse international law and domestic law, and so think that a treaty is much more effective, relative to soft law, than it actually is. It is implausible to think that Amnesty itself is fooled in this way, so we have to back up a step and look to those that support Amnesty. So it must be those that contribute time or money to Amnesty who are fooled in this way, and the folks that run Amnesty International pander to the preferences of that population, even when doing so does not serve the goal of advancing human rights. So the story ultimately relies on an assumption that the public is both the engine that drives outcomes (a treaty rather than soft law) and is fooled. But of course we can explain any actual or imagine outcome through this line of argument. If, for example, we observed that states seem to enter into soft law agreements more often than theory predicts, the explanation would be that the public just wants to see that the agreement contains desirable substantive terms and that the difference between a treaty and soft law is lost on them. Indeed, something very close to this argument is sometimes advanced to explain human rights treaties – the states that sign realize that the treaties will have little impact, but they sign anyway because domestic constituencies want to see that their governments are working to improve human rights and the treaties fool those domestic groups.

Arguments that rely on an unsophisticated but powerful public start to look like arguments that rely on unsophisticated policy makers, since the latter become a pass-through for the goals of the former. If it is assumed that the public (or other important domestic constituencies) think of international law as similar to domestic law, we are very close to an assumption that the public has a preference for compliance with international law generally. If this is acted on by decision-makers, we have recreated the traditional assumption that states have a propensity to comply with international law. This is a long-standing view among international law scholars and practitioners, and it retains significant support. For reasons explained in the book and familiar in debates about international law, I think it is a good idea to think about international law without making this assumption. For the same reasons I am reluctant to make assumptions about democratic constituencies that recreate the propensity to comply.

http://opiniojuris.org/2008/02/13/treaties-and-soft-law-stories-a-reply-to-raustiala/

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