International Law as Behavior Symposium: TIME’S UP – Deadlines as Behavior in International Law

by Jean Galbraith

[Jean Galbraith is an Assistant Professor at the University of Pennsylvania Law School]

One mechanism through which international law regulates the behavior of states and other actors is deadlines.   Although little studied, deadlines appear throughout international law, especially in treaty regimes. Drawing on a future book chapter, in this post I describe some of the roles played by deadlines in international law. I also consider what insights research on the use of deadlines in domestic contexts might have for good and bad ways to use deadlines in international law.

Uses of Deadlines in International Law

Deadlines occur throughout international legal practice. We find them in the negotiation of treaties; in relation to the signature and ratification of treaties; in the provisions of treaties; in exchanges among nations and other actors regarding international legal obligations; and in the functioning of international organizations and tribunals.

Deadlines can have quite different international legal effects. Some deadlines are purely political, such as many deadlines in negotiations. Other deadlines set limits on access to legal opportunities, like the date a treaty closes for signature. Still other deadlines mark the legal boundary between compliance and non-compliance with obligations under international law, such as substantive or reporting deadlines written into treaties.

For examples of these different kinds of deadlines, consider the Chemical Weapons Convention. Negotiating deadlines were used during its creation. Its entry-into-force date served as the date that the Convention closed for signature, triggering several last-minute signatures. This date also served as a symbolic deadline that galvanized the advice-and-consent process in the U.S. Senate. The content of the Convention itself is also laden with deadlines. To take one prominent example, the Convention requires parties to complete destruction of their chemical weapons within ten years of the Convention’s entry into force – with the possibility of an additional extension of up to five years. The United States and Russia have overshot this deadline and are therefore in violation of their obligations. Finally, deadlines feature in the work of the international organization created by the Chemical Weapons Convention (the OPCW), as with its recent use of deadlines in relation to Syria.

As this example suggests, deadlines can prove hugely important to international law. Yet they have received little attention for legal scholars. Given how integral deadlines can be to the functioning of treaty regimes, it is important to think about they can be best deployed.

Deadlines and Behavior: Some Insights from Domestic Research

Although deadlines have received little study in international law, scholars have studied deadlines in lots of other contexts. As examples, consider the following findings: 

  • Negotiation and decision-making. There is an extensive literature on how deadlines affect negotiators, some of which has been picked up on in the IR literature.   In addition, it may be that deadlines can magnify the power of framing effects, making us more susceptible to whether the consequences of a decision are presented as a gain or as a loss.
  • Time management. No one will be surprised to hear of the “planning fallacy” – that individuals and groups tend to be overoptimistic in predicting how long tasks will take. Some experimental work on individual behavior suggests that performance improves where intermediate deadlines are used, rather than simply relying on a single final deadline.
  • Agency behavior. Some observational work has looked at how federal administrative agencies behave in response to deadlines. This work highlights both the benefits and costs of deadlines, as they can spur action but also lead to poor decision-making, failure to innovate, and/or neglect of more important activities.

These examples are drawn largely from the fields of behavioral economics and cognitive psychology, where the experimental work on the relationship between time constraints and behavior is particularly rich.

What These Insights Might Offer for International Law

How can international law make the best use of deadlines? The answer depends on how various actors – states, international organizations, etc – behave in relation to deadlines. Do they behave in strictly rational ways? Do they have some of the same susceptibilities that the research described above finds in individuals, groups, and/or agencies? Do they follow other predictable but not fully rational patterns?

I don’t think we currently have enough evidence to answer these questions with a high level of certainty. But it strikes me as not only possible but indeed likely that actors in international law are subject to some of the same susceptibilities as individuals, groups, or agencies in relation to deadlines. As I’ve written elsewhere with regard to treaty design, I think some findings from behavioral economics and cognitive psychology have relevance for aspects of international law. Anne van Aaken and Tomer Broude have made similar arguments for the field of international law more generally.

Turning back to the Chemical Weapons Convention, I think some of the insights from domestic research help illuminate how the deadlines related to the Convention have functioned in practice. To give just one example, during the Senate advice-and-consent process, the Clinton Administration used the deadline to frame failure to ratify by this date as a loss for the United States. Madeline Albright testified that “[I]f we fail to ratify the agreement by the end of April,” then the United States would “forfeit” and “lose” various opportunities to influence the early workings of the OPCW. Even though ratifying by the exact entry-into-force date probably didn’t matter much in practice (Albright’s assertions notwithstanding), its symbolic power as a deadline helped get the Chemical Weapons Convention through the Republican-controlled Senate. The role played by the deadline here bears some resemblance to findings on how deadlines can influence decision-making in the domestic context.

This is only an example, not a strong demonstration of a finding. We have a long way to go in figuring out exactly how actors behave in relation to international legal deadlines. But in the meantime, I think practitioners would do well to consider what research on deadlines in other contexts might suggest about the effective use of deadlines in international legal settings.

In closing, let me thank Harlan Cohen for organizing this symposium (as well as the project more generally) and Opinio Juris (especially An Hertogen) for hosting it. And as a long-standing reader of Opinio Juris, I congratulate it on passing the ten year mark.

http://opiniojuris.org/2015/01/19/international-law-behavior-symposium-times-deadlines-behavior-international-law/

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