IL/IR Symposium: Comment on Helfer

by Edward Swaine

[Ed Swaine is Professor of Law at George Washington University Law School]

Larry Helfer is the perfect author for a chapter on the topic of treaty flexibility mechanisms: he writes from both theoretical and empirical perspectives, has a wide range of substantive expertise (including in human rights and trade, two fields that are central to this topic), and has a penetrating and remarkably clear style of analysis.  He deliberately provokes a number of questions in his chapter and post; because I’m conscious that blog readers themselves have numerous “exit” options, like closing this tab, I will try to be brief and touch on only a few.

This topic includes a wide variety of behaviors – reservations, denunciations, suspension, differentiated treatment, amendment, withdrawal, and so forth – and one set of issues concerns nomenclature and taxonomy.  Larry has a state-of-the-art table in his chapter laying out and sorting the flexibility options.  Personally, I have never been happy with describing certain formal flexibility mechanisms (those involving temporary relief from treaty obligations) as “escape” clauses, supposedly as distinct from “exit” clauses that entail permanent cessation of status as a treaty party.  Prisoners do not “escape” from Alcatraz with a view to returning; a word like “avoidance” better captures the idea in this context.  More generally, the categorization of flexibility mechanisms has certain routine difficulties – the basic problem of trying simultaneously to sort on when a state seeks flexibility and what its legal consequences are; conflicting tendencies both to include and exclude certain noncompliance acts as informal flexibility mechanisms; and an inherently unsatisfying distinction between so-called unilateral mechanisms (not always exploited in a completely autonomous fashion) and collective mechanisms (frequently, one suspects, prone to exploitation or capture by particular states).  Typology is rarely gripping, and I don’t want to mislead anyone into thinking that Larry’s chapter is focused on these questions or has unique difficulties with them.  However, they matter because we are concerned with the relationship among these mechanisms, principally in order to describe the choices states confront and make; he highlights this in his post as well.  In addition, beyond worrying whether these descriptions have formal integrity, we should also try to explore whether these are in fact the way state representatives think about the alternatives.  It might be the case, for example, that they focus predominately on collective rather than unilateral forms of flexibility, or informal rather than formal avenues, either of which might marginalize other kinds of inquiries.

A second set of issues concerns the proper perspective on these questions.  The chapter rightfully insists not only how treaties are designed, but also how the resulting flexibility mechanisms are actually used – a point reemphasized as an avenue for future research in Larry’s blog post – and is otherwise keenly interested in state practice.  At the same time, it shares with the rational design literature an understandable tendency to view treaty design abstractly and objectively, as something states do in order to satisfy a number of competing objectives on the international and domestic planes.  This is useful and instructive.  That said, I would not be surprised if individual states found their design objectives dominated by basic assumptions about whether they or their counterparts would be the ones needing the capacity to exploit flexibility mechanisms, along with whether they care more about being held to account or holding others to account.  This is difficult to prove or disprove, and what’s worse, very difficult to build into any easy-to-assess model.  But if it is true, it means that our accounts of treaty negotiations would be better attuned to analyzing these initial diagnoses and preferences, along with group bargaining dynamics, than any more neutral view of how an ideal state balances participation, deep or shallow obligations, compliance, and other values.  This might coincide, more or less, with evidence from “escape” studies that differentiates the conduct of stable democracies from autocracies – but would also suggest that these and other fault lines emerge first during treaty design.

Third, and finally, a more general word about the call for future research.  This is typically one of the most useful functions of a survey chapter, if done astutely, and Larry’s suggestions – reflected in his blog post – do not disappoint.  While I agree with him about the kind of questions that should be addressed, I’d add a personal plea for a specific methodology in pursuing them.  The fields of international law and international relations have become much more disciplined about substituting empirical work for normative assertion and conjecture.  I think we should avoid, however, a complete capitulation to bean counting.  Many studies of treaty design do their level best with databases that are either too restrictive in their scope or, alternative, too universal – for example, because they mix bilateral and multilateral treaties.  Recent work has made great strides in trying to disentangle important from unimportant treaties, and major from minor breaches, and the like, with the attendant risks that normative views are now mediated by coding rather than by artfully turned rhetoric or calls to action.  I would like to see additional case studies that try to account for how state negotiators actually depict and select among the choices for flexibility mechanisms.  Readers still with me at this point might contribute ideas as to good existing or potential accounts, or volunteer whether they denounced this post long ago or perceive that it lapsed into desuetude.

http://opiniojuris.org/2013/09/17/ilir-symposium-comment-helfer/

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