International Law as Behaviour Symposium: Epistemic Cooperation

by Tim Meyer

[Tim Meyer is an Associate Professor of Law at the University of Georgia School of Law.]

For the last several decades, the central problem in much institutionalist scholarship has been how to design what I refer to as credible commitment regimes. Such regimes establish, or create fora in which states can later establish, substantive rules of conduct to coordinate state behavior across an increasingly wide range of issues. On the assumption that rational, self-interested states will cheat on these conduct rules if it is in their interest to do so, credible commitment regimes also create enforcement mechanisms to alter state incentives. Monitoring, verification, and dispute resolution mechanisms publicize violations, authorize retaliation, and in some instances award monetary damages. For example, the WTO agreements establish rules on the kinds of limits states may place on international trade. The WTO also creates the Dispute Settlement Body, which serves as a vehicle to further clarify the content of those rules, publicize violations, and reduce the cost of retaliation by defining when it is legally permissible.

Below the radar, however, a class of international agreements have emerged that seek to coordinate state behavior through the production and regulation of information, rather than the creation of credible commitments. Following a robust literature on epistemic communities, I refer to these international regimes as epistemic institutions or epistemic agreements, and the phenomenon as epistemic cooperation. In its purest form, epistemic cooperation does not legally require states to take action on the regulated issue. Instead, it merely requires them to produce and share information with each other. The aim is to encourage states to coordinate their activities based on this information, rather than based on a legal rule made credible through international institutions.

Examples of epistemic institutions that work in this way abound. Examples include the International Renewable Energy Agency, the Rotterdam Convention on Prior Informed Consent, the Basel Convention on Hazardous Waste, the Cartagena Protocol on Biosafety, and the Framework Convention on Tobacco Control, to name only a few. Each of these agreements is a legally binding treaty or an institution created by a legally binding treaty that produces or requires states to produce information. States are not legally obligated to act upon that information. Rather, the information provides a basis for states to select the level of protection they desire. These institutions seek to guide state choices, rather than to mandate them through multilateral legal rules.

Prior informed consent regimes, which require information sharing as a means of enabling states to make informed but unilateral choices, are perhaps the clearest example of epistemic institutions. Consider the Cartagena Biosafety Protocol. That treaty provides for a Biosafety Clearinghouse. States are obligated to report to the Biosafety Clearinghouse any legal measures or decisions they have made with respect to the release of living genetically modified organisms (GMOs), as well as any related risk assessment data. States are then able to individually make decisions about whether to permit the import of living GMOs if they are intended for release into the environment. Such decisions are supposed to be based on a risk assessment that takes into account relevant scientific information, including information produced through the Clearinghouse. Exporters may request states restricting the import of living GMOs to review their decisions if they believe circumstances have changed. Ultimately, however, the regulatory decision remains with the importing state. In other words, the international institution does not seek to establish multilateral legal standards to constrain states’ policy choices. Instead, the international regime promotes a scientifically-driven process for states to use in selecting their policies.

In choosing between epistemic regimes and credible commitment regimes, states face a tradeoff. Using epistemic agreements saves the transaction costs of having to actually agree on a legal rule and also saves the cost of contracting over and implementing costly enforcement mechanisms. These savings can be significant. International negotiations can bog down for years as states haggle over the precise content of legal rules (climate change negotiations illustrate the point). Epistemic cooperation—such as providing developing states with information about renewable energy technologies and their relative cost effectives, as the International Renewable Energy Agency does—may provide more effective and immediate impact precisely because states do not have the same kinds of incentives to stall on reaching agreement.

On the other hand, in some situations epistemic cooperation will be inferior at producing changes in state behavior. For example, states may not trust information produced by other states or international institutions. Epistemic institutions can take steps to increase the perceived legitimacy of information, but in some instances credible commitments may be more effective. Second, even with improved information, states may still lack an incentive to coordinate their behavior in the absence of the threat of sanctions. Certain public goods problems, like fisheries, raise this issue. Knowing what constitutes a sustainable fish catch does not by itself provide an incentive for a state to limit its catch. Instead, a state needs to know that other states will also exercise restraint.

Epistemic cooperation may also be inferior in situations in which government officials do not process information effectively, perhaps because they face capacity constraints or have biases in how they process information. The signal sent by a legal obligation may be clearer and easier to process in some circumstances or for some governments. Finally, epistemic cooperation will be inferior in situations in which states need to coordinate their policies with some degree of precision or in which the reciprocal exchange of concessions is itself important to changing a state’s behavior. The trade regime, in which other parties’ concessions provide the domestic political justification for reducing one’s own trade barriers, highlights the significance of this kind of reciprocal exchange. Overall, states should select epistemic agreements when the costs of bargaining over and enforcing specific legal rules are larger than the expected costs of failing to coordinate on the basis of information.

Epistemic institutions and credible commitments regimes are of course ideal types. As Oren Perez has recently argued, institutions may blend legal and epistemic authority in different ways. Credible commitment regimes also often present informational problems or make use of information as part of their regulatory strategy. These informational issues are, however, typically connected to bargaining and enforcement of legal rules. For example, James Morrow famously analyzed how private information about different possible cooperative arrangements can affect bargaining over which arrangement to implement. Similarly, information about violations is key to enforcement strategies in credible commitments regimes. If states do not know that violations have occurred, they cannot take reciprocal or retaliatory action, nor will their beliefs about the violating state’s future likelihood of compliance with international agreements—the basis for reputational sanctions—change. Credible commitments regimes thus use information to lubricate bargaining between states and expose violations in order to make them costly.

A major advantage of epistemic cooperation in its pure form, though, is that it decouples bargaining over and enforcing legal rules from informational strategies. The epistemic institution’s work is done once the information has been produced and shared. Rather than relying on subsequent bargaining and enforcement by states, epistemic cooperation relies on decentralized and uncoordinated behavior to produce coordination. Indeed, institutionally separating information production from bargaining and enforcement strategies may increase the effectiveness of informational strategies at generating decentralized coordination.

The founding of the International Renewable Energy Agency (IRENA) provides an illustrative example. When nations began discussing the possibility of IRENA, they confronted the question of whether it should be a stand-alone institution or whether it should be created under the umbrella of an existing institution working on renewable energy issues, such as the United Nations or the International Energy Agency (IEA). The German government, IRENA’s chief sponsor, argued that IRENA should be independent (a view that ultimately carried the day). With respect to the IEA, Germany worried that “political structures often put renewable energy at a disadvantage compared to other energy sources”—a polite way of saying that the IEA’s institutional commitments and decision-making procedures would inhibit IRENA’s ability to disseminate information about renewable energy. Germany also worried that the UN’s consensus based decision-making processes would allow states hostile to IRENA’s mission to block its efforts. Structuring it as a stand-alone institution liberated IRENA from the strictures of these larger organizations and the political and institutional dynamics that come with them.

The rise of epistemic cooperation implicates one of the key themes raised by Harlan Cohen’s concept of international law as behavior: how does state behavior respond to different kinds of regulatory strategies? In this case, under what circumstances can informational strategies shift state behavior as well or better than the classic legalized institutions with which so much institutionalist scholarship has been concerned? Epistemic cooperation sits at the juncture of a number of different methodologies. One can comfortably maintain the standard institutionalist assumptions of rational, self-interested states and still predict that providing states with new information may change their behavior. But changing the kinds of information states have also implicates other methodologies and approaches. As Goodman and Jinks describe, constructivist approaches, including persuasion and acculturation strategies, rely to varying degrees on the transmission of information as a way to influence state behavior. Transnational legal process and managerialism similarly have a place for information as a way to induce states to coordinate their actions. Epistemic cooperation as a site of scholarship thus offers the possibility of multi-method studies and with it, greater methodological dialogue.

http://opiniojuris.org/2015/01/20/international-law-behaviour-epistemic-cooperation/

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