Linos Book Symposium: Comments by Pierre-Hugues Verdier

[Pierre-Hugues Verdier is an Associate Professor of Law at the University of Virginia School of Law]

Katerina Linos’s new book, The Democratic Foundations of Policy Diffusion, is one of the most important contributions to arise from the recent turn to empirical scholarship in international law and international relations.  Instead of following a deductive path from broad theoretical assumptions, the book carefully combines survey evidence, cross-country regression analysis and case studies to paint a coherent picture of policy diffusion through democracy in the fields of health and family policy.  Yet, this careful and inductive approach leads to a central theoretical contribution to the field.  From a descriptive perspective, the book shows that non-binding standards with minimal institutional support can contribute to significant domestic policy shifts in high-stakes areas, despite resistance by domestic interest groups.  From a normative perspective, its model of diffusion through democracy may solve a perennial and vexing paradox of global governance, by providing international policy coordination that is both effective and consistent with democratic accountability.

However, while the book’s focus on the often neglected areas of health and family policy is innovative and welcome, it inevitably raises the question whether the mechanism it identifies applies to other areas of international law and policy coordination. As the book points out, the field of social policy is characterized by non-binding international models rather than binding agreements, with a few exceptions such as ILO conventions.  Nevertheless, the book suggests in several places that diffusion through democracy may apply much more broadly to other policy choices, and can inform longstanding general questions of institutional design such as the choice of hard law or soft law instruments.  Likewise, the book’s conclusion implies that the normative benefits of this mechanism in alleviating the democratic deficit of global governance also apply to other areas of international policymaking.  In this short contribution, I want to suggest two reasons for caution is assessing the broader potential implications of this mechanism.

First, the social policy field reflects a pattern of incentives that is somewhat atypical in the broader realm of international cooperation problems.  In many areas, states have interdependent incentives:  international coordination is valuable because states derive benefits from adhering to a common policy.  For example, states mutually benefit from agreeing on common telecommunications or accounting standards that facilitate cross-border transactions.  In such areas, the main challenges facing international cooperation efforts are often distributive conflicts over the surplus created by coordination.  Sometimes, states also have incentives to defect once the standard is in place, thus free-riding on the efforts of others.  For example, international agreements that attempt to secure public goods—such as limits on carbon emissions—are vulnerable to opportunistic defection.  In these areas, it is generally believed that traditional international law instruments play an important role by allowing explicit bargains, more precise obligations, and monitoring and dispute resolution mechanisms.

By contract, health and family policy is usually regarded as an intrinsically domestic policy choice.  While a state’s policies may have some impact on others, for instance through competition, clearly the impact is not as immediate as in many of the areas described above.  This leads one to wonder whether the impact of diffusion through democracy is cabined to those areas where distributive or enforcement problems do not interfere with cross-country policy diffusion.  The book touches briefly on this issue in the conclusion, suggesting that the most immediate implications may be for areas such as human rights where incentives are not clearly interdependent.  However, even for human rights, states have frequently chosen to enter into formal treaties, presumably because they value the stronger commitments that come with legally binding obligations and the creation of courts and other monitoring bodies.  Is the model described in the book, then, limited to areas where interdependent incentives are marginal and states are not tempted to defect from their chosen policy? The case could have been made that it is not, and that essentially the same mechanism may be deployed to support compliance with international law in other contexts.  The book, however, does not venture in those waters, thus somewhat weakening its claim to have identified a broadly applicable mechanism.  It would be valuable for future research to explore this issue more explicitly.

Second, the optimistic normative implications drawn in the book also require some qualification.  In arguing that international standards can affect domestic policy choices despite resistance by interest groups, the book appears to regard those standards as exogenous.  Yet, domestic interest groups may well play a role in international standard-setting, which raises the possibility that democratic diffusion may—no less than technocratic diffusion—serve as a vehicle to promote their favored policies.  For example, several scholars have pointed to the important role large international banks played in the development of the Basel II accord on global capital standards.  Likewise, the involvement of labor and employer representatives alongside governments at the ILO may lead to corporatist bargains that do not necessarily reflect optimal policy in the areas of social and employment law.  The point here is not to criticize any of these standards specifically, but to illustrate the broader possibility that if domestic interest groups are able to deploy their influence in international standard-setting, the fact that such standards have a veneer of legitimacy that facilitates their adoption through democratic means may not always be an unambiguously positive result.

These two points are offered not to diminish the book’s contribution, but rather to emphasize that one of the important challenges it raises is to situate its important contribution within the complex tapestry that emerges from recent advances in international law and international relations scholarship.  From a social science perspective, it seems that international law may not be so much a unitary phenomenon as a cluster of mechanisms through which international cooperation occurs and is facilitated in different contexts.  In some areas, traditional sources and institutions may play an important role, while in others international policy coordination may occur despite the absence of formal obligations—and indeed sometimes without any explicit international standards or coordination efforts.  In this regard, The Democratic Foundations of Policy Diffusion fills in a crucially important piece of the puzzle.  It is essential reading for international lawyers and all others interested in international aspects of policymaking.