When Cooperation Fails

by Kal Raustiala

At Greg Shaffer’s invitation I’m joining the discussion to make a couple of small points about some of the concepts used in Greg and Mark’s very interesting and carefully researched book. The first concerns the GMO case as an example of a “regime complex.” When David Victor and I first proposed the concept of a regime complex, we used the example of property rights in genetic resources. (Raustiala and Victor, “The Regime Complex for Plant Genetic Resources,” International Organization 2004). But we suggested that many regime complexes existed, and that once scholars began to look at the world through this lens the limits of focusing on discrete institutions and agreements (ie “regimes”) would become clearer. 

Greg and Mark nicely illustrate why it is essential for international lawyers and political scientists alike to think in terms of sets of overlapping but distinct regimes, and to explore the dynamics that emerge from the interactions among these component parts.  I hope others follow their lead, because as the density of international law and institutions increases regime complexes will proliferate. For international lawyers, this is a slightly different spin than the more typical focus on “fragmentation.” Fragmentation is an important phenomenon, but I believe the more critical feature to focus on, as Greg and Mark do, is institutional overlap.

My second point concerns the soft law-hard law discussion now ongoing on the blog. While it is a small and perhaps even semantic point, I am not a believer in the utility of the concept of soft law. As I have detailed in other writings, I think that calling some sets of norms and agreements “soft” law makes little conceptual sense. (Here I part ways with two scholars I greatly respect, Duncan Snidal and Ken Abbott, whose framework Greg and Mark adopt).

Law is a formal category, though as self-proclaimed legal realists Greg and Mark know that many non-legal factors influence legal decisionmakers. The discussion now ongoing on the blog illustrates the problems with using the terminology of soft law, with its debate over whether some hard law has softened and vice versa. This language ultimately obscures more than it clarifies. So I endorse Tomer Broude’s suggestion that the terminology of hard and soft may not be that useful. At bottom, what is important is the way some actors in the GMO story create “strategic inconsistency” by creating and invoking a wide array of differing norms, some of which clash. That discussion is central to the book, and is impressively detailed. But employing the language of soft law is not necessary to this discussion, and I think it would have been even stronger without it.

http://opiniojuris.org/2010/01/06/when-cooperation-fails/

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