Author Archive for
Andrew Guzman

Posner and Sykes Book Symposium: Comment by Andrew Guzman

by Andrew Guzman

[Andrew Guzman is Professor of Law and Director of the Advanced Law Degree Programs at Berkeley Law School, University of California, Berkeley.]

This is a superb book.  I say this without the slightest bit of surprise, as that is what one would expect from these authors.  In addition to the quality of the content, the book is all the more important because there is no comparable tour of international law from a law and economics perspective.  I have disagreements with some of the content of the book – it would be impossible to produce a serious book with respect to which other scholars were in total agreement – but this should now be a central part of the canon, not only of the law and economics of international law, but of international more broadly.

It is perhaps a sign of a maturing discussion within international law that the book does not bother to include a discussion of why studying international law from an economic perspective is useful.  This area of legal scholarship has been slow to embrace analytical approaches and for many years anyone writing in that style felt the need to defend the methodology itself.  It would be wonderful if we have moved past that point.

That said, it is worth noting that one of the benefits of an economic approach is that it encourages us to make clear our assumptions and models of behavior.  In so doing we more fully disclose our intellectual commitments which, in turn, allows others to challenge or build on our claims.  When we disagree, we can more effectively examine one another’s arguments and identify the precise points in dispute.

In my brief comment, I would like to take advantage of this feature and build off of some of what Posner-Sykes say to make a point about international cooperation in general and, more explicitly, in the area of climate change.  I do not know if the authors would agree with my views, but the discipline imposed by an economic approach should, at a minimum, make clear why we disagree.


Seawalls are Not Enough: Climate Change and U.S. Interests

by Andrew Guzman

For too many years American climate change debates were political contests in which scientific evidence took a back seat to political posturing, obfuscation, and ultimately, inaction. Today, the science demonstrating that our world is warming and that humans are a primary cause of this warming is unambiguous. Though there remain a few public voices willing to deny the evidence, the credibility of their objections fades with each new development and the ever-mounting evidence.

Now that the public discourse has accepted the reality of climate change, the discussions have turned to focus on possible responses to the problem and the costs of those responses. Even where there is consensus on the existence of climate change, there is often disagreement about what should be done. The most common objections to action point to the costs that would be involved. For example, critics of the Waxman-Markey cap-and-trade climate change bill have claimed that it would cost the average American household $1,870 per year. There is little evidence to support this figure, but it has entered the political discourse nonetheless. On the other side of the debate, proponents of the bill point to a Congressional Budget Office report suggesting that the bill will cost the average family less than one-tenth of that – just $160 per year.

This debate over the costs of action is critical, but it cannot guide policy by itself. We also have to understand the costs that climate change will impose. What will it cost the United States if the Earth warms?

Professor Jody Freeman and I investigated this question in our recent article, Climate Change and U.S. Interests, published in the Columbia Law Review. We sought to estimate the full cost of climate change on the United States. The article is in part a response to the view, advanced in some fora, that the United States can afford to be passive with respect to emissions reductions. The idea is that the U.S. will suffer very modest economic harms as a result of climate change – indeed, some suggest that the country may enjoy small economic gains – and so has little incentive to bear any costs to reduce global warming.

We dispute this conclusion, which emerges from “integrated assessment models” (IAMs) of the economy. We do not challenge the models themselves or the economists who use them, but we object to how the results of these economic studies have been used in policy debates. The translation of IAMs from academic research to policy-relevant evidence too often overlooks two main points. First, IAMs are systematically biased downward in their estimates because they omit a range of economic harms that will be felt as the earth warms. Second, the assumptions used in the IAMs are often forgotten when the results are considered in policy debates, and results are simplified in ways which aggravate the downward bias of estimates.

Final Thoughs on Discussion of How International Law Works

by Andrew Guzman

As this it my final post in connection with this discussion of my book, How International Law Works, I want to thank Opinio Juris for giving me this opportunity, and the commentators for so thoughtfully sharing their opinions. Much of the discussion has been about the methodology used in the book, and as I have had my say on that subject in my several prior posts I will not dwell on it now.

Let me instead mention a couple of things that I hope the book has achieved or will achieve as more people get the chance to read it. I hope the book provides a foundation for further rational choice analysis of international law. I, for example, have recently been working on international tribunals, a subject that is not covered in detail in the book. More could be said from a rational choice perspective on just about any international law topic.

I also hope the book contributes to the discourse between international law and international relations. These fields have grown closer in the last twenty years, and I think both have benefited. This book seeks to address both sides of this narrowing divide, and hopefully is useful to both.

I very much want this book to also speak to more traditional international law scholars. There is no natural tension between conventional views of international law and rational choice. It is true that rational choice, because of its emphasis on reasoning from assumptions can sometimes seem abstract and disconnected from reality, but that is exactly why it is important to have constant reminders of the need to address real question and real puzzles. A rational choice approach, it seems to me, strengthens the study of international law in part because it provides theoretical underpinnings with which international law and legal scholars can respond to critics, analyze hard questions, and debate the role and workings of the field.

The world needs international law now, perhaps more than ever before. Problems from climate change to nuclear proliferation to hunger to disease to terrorism will only be solved with the help of international legal structures and institutions. Whatever else international law scholars do, we need to be thinking about when international law can help with these problems and what structures or approaches are most effective. We, need, in short, to think very hard about how international law works.

Why Isn’t There More Soft Law? A Response to Raustiala

by Andrew Guzman

In How International Law Works I grapple with the question of how states make the trade-off among the various features of agreements, including hard and soft law. I am not sure I agree that Kal’s empirical puzzle actually exists, but let’s assume it does and see why that might be so. A very similar question is discussed in the book – why are dispute resolution procedures almost never used in soft law agreements? The argument in the book (pp. 157-161) is very close to what follows.

One possible explanation for why we do not see many large, high-profile multilateral agreements can be seen by imagining a move from a soft-law agreement with few clear substantive obligations (e.g., the Rio Declaration) to an agreement that involves a greater level of commitment. One can imagine doing this in two ways (in fact, there are more than two, but let’s keep it simple). First, the states could stick with a soft law form, but provide more specific obligations. States would not be legally bound, but there would be a clear statement of what is expected of them. A failure to live up to the agreement would have some costs, though presumably less than the costs of violating the same agreement if it were a treaty. Second, states could leave the language unchanged but turn the agreement into a treaty. This would leave obligations somewhat vague and therefore give states some flexibility in how they behave while still claiming compliance.

Kal’s empirical claim raises the question of why we don’t see more of the first category (soft law with clear terms) and less of the second (treaties with vague terms), at least in some high-profile contexts. Why was the Vienna Convention for the Protection of the Ozone Layer a vague treaty rather than a soft law instrument? A partial answer comes from thinking about what sort of state preferences would yield that result. We expect this outcome if we assume that states prefer to increase their level of commitment by increasing the formality of the promise rather than its precision. This suggests that the choice of hard law offers a better cost-benefit trade-off to states than does the choice of more exact language. This, of course, begs the question of why they have that preference, and I do not have a satisfying response. The good news is that there is a lesson to be learned here. Perhaps Kal’s empirical puzzle is not such a puzzle at all, but instead tells us something we did not previously know about state preferences and the trade-offs states face.

Treaties and Soft Law Stories, A Reply to Raustiala

by Andrew Guzman

Kal’s comment raises some interesting questions about the nature of international law and what it means to be a treaty rather than soft law. He juxtaposes hard law and soft law, as I did in my opening comments. Let me suggest another comparison – hard law in the international context and domestic law. The contrast here is stark and obvious – domestic law usually comes with the potential of coercive enforcement while international law rarely does. So based on that comparison, you might say that not only is the term “soft law” oxymoronic, as Kal says, but so is the term “international law.” International law does not “bind” a state in anything like the way domestic law binds domestic actors. The point here is that whatever soft law is, and whatever international law is, worrying about whether they should be called “law” makes little sense unless we know what “law” is. How International Law Works is, in significant part, an effort to help us understand what international law is.

Kal argues that there may be more to the distinction between hard and soft law than my book suggests. He says that governments pay a lot of attention to whether or not an agreement is legally binding under international law. Clearly states do worry about the legal status of agreements, but they also worry about a bunch of other things as well. Soft law agreements (Helsinki Final Act, Basel Accord, Universal Declaration of Human Rights, cooperation agreements in competition law and securities, etc) are common and often appear to generate high levels of compliance. So I think I am a little less persuaded than Kal that there is a bright line dividing treaties from soft law.

That is not to say that I think there is no difference between the two. I would quibble with Kal’s statement that I believe it is “not very significant” whether an agreement is hard or soft law. Differences of degree are nevertheless differences, and I think it does increase the level of commitment when states enter into treaties.

There is a literature in both law and political science about why states choose treaties rather than soft law, and some of it focuses on the domestic implications of treaties. I largely agree with the suggestion in this literature (and in Kal’s post) that these domestic effects matter. To prove it to you let me quote from my book: “Perhaps the most important influences on the decision [to choose hard law rather than soft law] are the domestic law implications of selecting a treaty. This is certainly the most conventional account of the choice between hard and soft law, and is surely an important influence on the decision.” (p. 145). So I agree with the importance of these effects. This is an area in which work by legal scholars, informed by the existing international relations literature, could make a big contribution.

I find Kal’s second hypothesis – that some domestic constituencies prefer hard law over soft law because they think international law is quite a bit like domestic law and so want to see “real” treaties – more problematic. The argument would have to go something like the following. Human rights groups like Amnesty International lobby to get human rights treaties drafted, and to get states to join. They have a strong preference for treaties because they, in effect, confuse international law and domestic law, and so think that a treaty is much more effective, relative to soft law, than it actually is. It is implausible to think that Amnesty itself is fooled in this way, so we have to back up a step and look to those that support Amnesty. So it must be those that contribute time or money to Amnesty who are fooled in this way, and the folks that run Amnesty International pander to the preferences of that population, even when doing so does not serve the goal of advancing human rights. So the story ultimately relies on an assumption that the public is both the engine that drives outcomes (a treaty rather than soft law) and is fooled. But of course we can explain any actual or imagine outcome through this line of argument. If, for example, we observed that states seem to enter into soft law agreements more often than theory predicts, the explanation would be that the public just wants to see that the agreement contains desirable substantive terms and that the difference between a treaty and soft law is lost on them. Indeed, something very close to this argument is sometimes advanced to explain human rights treaties – the states that sign realize that the treaties will have little impact, but they sign anyway because domestic constituencies want to see that their governments are working to improve human rights and the treaties fool those domestic groups.

Arguments that rely on an unsophisticated but powerful public start to look like arguments that rely on unsophisticated policy makers, since the latter become a pass-through for the goals of the former. If it is assumed that the public (or other important domestic constituencies) think of international law as similar to domestic law, we are very close to an assumption that the public has a preference for compliance with international law generally. If this is acted on by decision-makers, we have recreated the traditional assumption that states have a propensity to comply with international law. This is a long-standing view among international law scholars and practitioners, and it retains significant support. For reasons explained in the book and familiar in debates about international law, I think it is a good idea to think about international law without making this assumption. For the same reasons I am reluctant to make assumptions about democratic constituencies that recreate the propensity to comply.

The Puzzle of Human Rights Treaties

by Andrew Guzman

I confess that I am a little surprised by the focus on methodological issues that has emerged in the discussion of my book. My intention was to adopt non-controversial rational choice assumptions widely used across both law and the social sciences. This approach to modeling behavior is dominant, for example, in both economics and political science. Equally relevant, there is an enormous literature debating the merits and demerits of the approach and the debates on the subject are, by now, well-worn and familiar. I fear that we are simply rediscovering what others, (international relations scholars in particular) have known for a long time. I do not mean by this that questioning the methods I or anyone else uses is out of bounds. But if I have indeed carried out a rational choice analysis of international law without doing violence to that methodology, I hope we can get beyond the question of whether rational choice is useful (it seems everyone agrees that it is) and whether it is the only thing that is useful (nobody thinks so).

Alex’ most recent post addresses the question of how reputation interacts with treaty ratification. As I said in my earlier post, the issue of ratification is an interesting and important one, but not one I focus on in my book. The most natural way to think of the decision to ratify is to imagine a trade in which each country makes a promise in exchange for the promise of its treaty-partner. With human rights treaties, however, this is sometimes not a persuasive explanation. Jeff Dunoff reminded us below that at least some human rights treaties feature a form of compensation in exchange for joining, but I doubt we can explain all treaties in this way. I suggested another explanation in an earlier post – perhaps for many states the cost of joining is very small, meaning the even modest benefits are enough to cause states to join. There was also a discussion of how reputation might influence the ratification of treaties. A country whose reputation understates its willingness to comply with international law (or perhaps with human rights treaties) might, under certain conditions, enjoy a reputational boost by signing a treaty and then complying with it.

All of these explanations, and more, are available to explain participation in human rights treaties. I remain, however, of the view that we lack a good explanation for these treaties generally. It may be possible to explaining them one at a time, but developing “just so” reasons for ratification does not amount to a theory. So where does that leave us? I think it leaves us with a puzzle about why states join human rights treaties. Alex asks if this fact signals a weakness in rational choice theory. That is hard to say. It may be that the solution to the puzzle simply needs to be identified, and that it will be found within a rational choice model. A persuasive critique of a rational choice approach on this basis requires, at a minimum, an explanation of how this puzzle is explained through some alternative methodology.

Rational Choice and Broader Conceptions of International Law, A Response to Jeff Dunoff

by Andrew Guzman

Thank to Jeff for this thought provoking comment and his kind words about my book. I am not sure that my response addresses all his concerns, but I hope it at least speaks to some of them!

Let me first state that while I agree with much of what Jeff has stated in his post, I do not agree when he says that my conception of compliance presupposes a particular understanding of international law. My book’s central focus is an attempt to explain how a rule of international law can affect state behavior. I think that question would be relevant under any of the conceptions of international law Jeff mentions. Everybody agrees that the impact of treaties, soft law, CIL, and norms on behavior is a central question in international law. In that sense, I think the book sheds light on the field regardless of one’s view of the nature, purpose, or functions of international law.

I think Jeff’s post poses two quite different questions. The first is the familiar question of whether rational choice models are the one and only way to think about international law. The answer to this is clearly “no” as I say in the book and have said in earlier posts here at Opinio Juris. Liberal theories and constructivist theories, as Jeff mentions, have some claim to informing our understanding of international law. In some ways these approaches are also compatible with rational choice models because they can help to explain state preferences which serve as the input for those models. In other ways the different approaches are at odds with rational choice, of course, so to some extent we are forced to choose among methodologies.

The second question seems to be whether a rational choice approach can address international law issues that do not focus on compliance with legal obligations or that do not define compliance in the way I do. Jeff asks if rational choice accounts can be build upon conceptions of international law “that view it more as a process of authoritative decision making than as a bundle of rules, that focus more on the evolving trajectory of complex legal regimes than on the ratification of treaty norms.”

Rational choice, because it has an underlying theory and because it is not committed to inflexible doctrinal categories (e.g., hard law v. soft law), offers a way to think through problems and questions fairly systematically. So, for example, if one thinks of international law as a process by which decisions are made, a rational choice model insists that you make some assumptions about how that process works. Once you specify the decisions that interest you, and how they are made a rational choice approach gives you the tools to move from those assumptions to some conclusions. Other approaches might be able to do the same thing, of course. I find reasoning about international law problematic, regardless of the methodology, when it fails to identify its assumptions and does not tell the reader how it gets to its conclusions.

I do not know of any way to think about the “evolving trajectory of complex legal regimes” without a much stronger sense of what causes the regime to evolve, what are its component parts, and so on. The main problem with complexity, I like to say, is that it is so darn complicated. Rational choice models sometimes do a poor job with complexity but this is not because they feature rationality, but rather because they are models. The human brain does not handle complexity well, and so we use models, or simplifications, or maps, even when we do not do so consciously. Rational choice is a way of bringing order to our thinking because it offers some simple and plausible, if imperfect, assumptions about behavior. The resulting conclusions will be mere approximations of reality, but that is the inevitable result of any modeling process. Complaints about the fact that the models do not yield perfect representations of reality (to be clear, Jeff is not making such complaints in his comment) are misguided. We have no choice but to simplify. The question is how we will do it.

More on Human Rights and Rational Choice

by Andrew Guzman

I think the discussion of rational choice explanations for human rights treaties has become a little muddled due to a lack of clarity in terminology. In particular, two terms need to be clarified. First, a “rational choice” approach implies an approach in which states have preferences which are complete, transitive, and stable. In my book and in almost all rational choice discussions, there is an additional assumption that states are unitary actors. This last assumption is sometime relaxed in an ad hoc way to explain some particular feature of the world that is otherwise difficult to get at. Like many others, I do this from time to time in my book.

Roger’s last comment on human treaties looks to a domestic law explanation for American participation in the CEDR. It is appropriate to call this a rational choice explanation, and it may well be the best explanation we have. The problem for creating a theory of international law is that this domestic influence does not generalize easily. To be sure one can observe that domestic politics matters and that virtually anything states do is affected by them. This is close to what liberal theories attempt to do – they look to domestic interest groups and politics to explain events. Ideally, we would have a model of domestic politics that would explain the preferences of states at the international level. Unfortunately we do not have a strong enough theory of domestic politics to go much beyond the statement that they matter. We have only a very crude understanding of when one domestic view will trump over another.

The other term I want to mention is “internalization.” When Alex used this term I took him to be referring to preferences formation, akin to the argument Harold Koh has advanced for why international law is complied with, the work of Goodman and Jinks, and the views of constructivists in political science. If preferences can change they lose their transitive property, and so are no longer rational. I discuss constructivism briefly in the introduction to my book, and in the interests of space will not repeat myself here. It is enough to say that constructivism is a difference approach that needs to elaborated and evaluated on its own terms. We cannot do that in a serious way here.

When Roger uses the phrase “internalization of a norm” he is thinking of the impact of domestic politics. When I use it I mean that domestic preferences can be changed by international law (or international norms). I do not think we disagree very much beyond this semantic difference.

Finally, I should add that my preference, as evidence in the book (and elaborated in the first chapter), is to stick with the assumption of a unitary state. To be sure, this reduces the flexibility of the model, but that is a virtue, not a vice. If domestic concerns are allowed in, almost anything can be explained with a wave to interest group politics. To think seriously about domestic politics, then, requires a careful inquiry into specific events; a practice best suited to positive explanations of individual past events rather than general models of behavior.

Formation of Human Rights Treaties, A Response to Alex Geisinger

by Andrew Guzman

Alex Geisinger’s thoughtful comments return to some of the themes I touched on in my earlier response to Roger Alford. Alex is more forceful, however, challenging whether the theory I advance is able to account for the role of reputation in treaty formation.

I think the place to begin here is some terminology. The use of the term reputation invites confusion, and there may be some of that confusion going on here. In the book (and here) I use the term to refer to a reputation for compliance with international commitments. That is, the project takes as its focus the ability of states to make credible promises. Just as private parties find contracting valuable, states find it valuable to exchange promises. So the main thrust of the book is directed at the question of when those promises are credible.

Roger and Alex both pull at a different notion of reputation – one for cooperation more generally, or perhaps for participation in international human rights treaties. It is clear that there is no legal obligation to join a human rights treaty, but there may be political pressure or some other incentive at work. Alex seems to be on board with the notion that states join such treaties in order to advance their own interests, stating that states seek “material benefits somewhere down the line.” I agree. One reason I find human rights treaties so puzzling is that it is devilishly hard to figure out just what it is signatories think they are getting. Alex suggests some possibilities – to obtain aid, to signal a willingness to cooperation, to signal that membership in a group is valuable, to signal a low discount rate. We can certainly identify instances in which membership comes with some clear benefit of aid or other support, but there are many examples where that is not true. The problem with signaling stories was already discussed in my response to Roger: the signal must be costly and if you subsequently violate the agreement, the net impact on whatever it is you are trying to signal will be negative.

Alex mentions one additional possibility – the internalization of a norm. This is a departure from rational choice assumptions, and for that reason is not discussed in detail in the book. In some instances some sort of norm internalization (or, in economist-speak, a changing of preferences) seems a plausible explanation for some countries. It is hard to imagine anyone signing the CEDAW 50 years ago, for example. The norm internalization story, however, does not help us to understand why states sign treaties that they are almost certain to violate. If the relevant norm were internalized, would it not manifest itself in domestic policy too? It seems to me that not only is it hard to understand human rights treaties in a rational choice model, it is hard to explain them using any methodology.

Turning back to Alex’ question – can a rational choice theory account for treaty formation. I am confident that the answer is “yes” in the sense that thinking of treaty formation in rational choice terms makes sense to me. Indeed, that is how Roger, Alex, and I have been discussing it here. A slightly different question is whether I have addressed treaty formation in the book. To that question I would answer “sort of.” As the last paragraph in my response to Roger indicates, the book does explore some of the relevant issues, but not all of them. There is much more to be said on this issue, and it strikes me as important for our understanding of international law and international relations. And if someone has a good explanation for why states sign human rights treaties, I invite them let me know and we can co-author the paper on it!

Reputation, Human Rights, and Humanitarian Law, A Response to Roger Alford

by Andrew Guzman

Thanks, Roger, for these great comments. You have put your finger on the broad area of international law that presents perhaps the greatest puzzle for all our theories of international law and international relations – human rights and humanitarian law. Agreements in these areas are (usually) very difficult to characterize as quid-pro-quo exchanges in which each party accepts obligations in order to get the other party to do the same. It is hard to believe, for example, that repressive regimes join human rights treaties to ensure that Norway respects the rights of its citizens. So these treaties must be motivated by something else, and I think it is fair to say that the field is still searching for a satisfying explanation of what that something else is. The trick is to explain the participation of states with good human rights records (what do they stand to gain) and those with poor human rights records (why would they accept obligations they are almost certain to violate).

We can say a couple things, though. First, a state only achieves a reputational gain by joining an agreement if doing so represents a costly signal. If New Zealand would comply with the ICCPR whether or not it was a party, the fact of its joining provides no information and so cannot help its reputation. The same is true for the International Criminal Court. Switzerland is a party to the ICC. If it is implausible that Switzerland will ever run afoul of its ICC obligations, then Switzerland cannot achieve a reputational gain for joining. Notice that we are assuming a prior belief that Switzerland will not violate its obligations under the ICC. This means that there is no new information when Switzerland joins, and there is no reputational gain with respect to compliance because by assumption the legal obligation is not affecting behavior. This is an important point because it is sometimes argued that states join human rights treaties that they expect to violate because it gives them some sort of reputational gain and there is no enforcement (or no transparency with respect to their violations). The signaling model behind this argument, however, requires that it be costly to send the relevant signal. If the signal is costless, it serves no purpose.

So why, then, would Switzerland join the ICC? Good question. My guess is that it did so because it was very low cost (since violation is spectacularly unlikely) and because it sought to demonstrate some vague support for the idea of setting up the court. These are quite modest benefits, of course, and so the claim is really that the issue was very minor for Switzerland, but some small gain was enough to get it to join. This could be as little as wanting to do something to help an ally and thereby improving relations, for example. Where the costs and benefits of joining are small enough, of course, motivated states may be able to tip fence-sitters into a treaty at relatively low cost. It is conceivable to me that this is part of the explanation for some multilateral treaties that have large memberships consisting of many states that are not affected by the relevant obligations.

But your point about there being a reputational cost associated with a failure to enter into an agreement is, I think, exactly right. A refusal to join a treaty may signal a reluctance to live up to the content of the treaty. This can provide information to observing states. Though there obviously would be no treaty violation, a state that refuses to participate may signal that it is or will be in violation of a related rule of CIL, or simply that it is not willing to cooperate in a given area. This latter situation would not, strictly speaking, be a loss of a state’s reputation for compliance with international law, but it might nevertheless be a costly loss of reputation for cooperation. This certainly seems to be what has happened to the United States with respect to both the ICC and the Kyoto Protocol.

So as you suggest, Roger, there is a close connection between accepting an international legal obligation and complying with it. My book does discuss how joining a treaty can help a country to gain reputation, and how the presence of a treaty can serve to separate states into those that can comply relatively cheaply and those for which compliance will be more costly. It also addresses the need for signals to be costly. There is more to say, however, than what the book covers. To give just one thought off the top of my head: When presented with an agreement a state may lose the status quo as an option – it must either join or declare its refusal to join. If it joins it then faces consequences in the form of reputational losses if its defects. Throw in the fact that joining happens today and the potential violation is in the future (and may never occur), and you can see that the problem gets interesting very quickly. I want to lay claim to having recognized some of this in the book, but also agree that there are interesting question in the “issues for future research” category.

Opening Comments on How International Law Works

by Andrew Guzman

Let me first thank Peggy McGuinness and everyone at Opinio Juris for this wonderful opportunity to discuss my book. I also want to thank the commentators, Jeff Dunoff, Alex Geisinger, and Kal Raustiala for their willingness to participate. I know that I will benefit from the discussion. I hope that the commentators do as well, and that readers of the blog both enjoy the discussion and are encouraged to read my book!

Let me start with a few words about the methodology used in How International Law Works: A Rational Choice Theory. As the title states, the book adopts a rational choice perspective. This reflects my view that such an approach is a (but not “the”) fruitful way to think about the subject. My embrace of a rational choice methodology should not be mistaken for a dismissal of other approaches. I believe that the best way to make progress in our study of international law is to identify a set of assumptions (in this case, rational, unitary states) and see how far those assumptions take us. Proponents of other approaches, including constructivists, realists, proponents of liberal theories, and so on, are doing the right thing when they, too, state their assumptions clearly and follow where those assumptions take them. In the end our understanding of the international system will surely involve some combination of these approaches, but we cannot hope to think about a synthesis unless we understand each approach first. So my book attempts to stick with a rational choice approach, though I admit it occasionally alters those assumptions (transparently, I hope) when the world seems inexplicable under the assumption that states are rational actors.

The book aims to speak to all those interested in international law, from skeptics to traditionalists and everyone in between. The message a reader takes from the book, however, is likely to depend on his or her perspective. For traditional scholars of international law the book seeks to advance the claim that much of the discipline can be explained with a small number of fairly conventional (i.e., rational choice) assumptions. Sticking with a parsimonious set of assumptions allows us to develop tractable theories of how international works and how it might work better. For example, the theory of compliance developed in the book relies on what I call “The Three Rs of Compliance” – reputation, reciprocity, and retaliation. Understanding these forces tells us something about when states comply and why they do so. It also helps distinguish the doctrinal claim that all international law is equally binding from the predictive claim that some forms of international law (e.g., treaties rather than CIL) will tend to exert greater “compliance-pull” than others. This emphasis on theory and assumptions leads to a number of conclusions that differ from conventional accounts of international law. I argue, for example, that there is no sharp distinction between the effect of soft law and hard law; that CIL should allow for subsequent objectors as well as persistent objectors; and that states do not always want to increase, rather than decrease the credibility of their promises. So the book tries to persuade traditionalists that this sort of theoretical approach can illuminate our understanding of the field. Without denying the importance and value of detailed, fact specific inquiries into events, the point here is that it is also useful and productive to think in more theoretical terms in order to get a sense of how the system works.

The book delivers a similar message to those with constructivist views or those whose first response is to consider the specifics of institutions or domestic politics. Each of these perspectives yields very fact-specific inquiries which are often difficult to generalize. The book tries to show that a general theory of international law is possible and, indeed, necessary to understanding the system.

A very different message is aimed at skeptics of international law. I have in mind commentators who use rational choice assumptions essentially identical to those I adopt in the book – that states are rational and selfish. The book lays out a theory of international law that is consistent both with these assumptions and with a world of robust and effective international law. The discussion explains how international law can affect state conduct, why states choose to enter into international law arrangements, and why international law sometimes fails to constrain states.

Both of these messages are intended to achieve the same result, which is to strengthen the study of international law. International legal scholars have at times had difficulty answering critics because the field lacks a coherent and comprehensive theory. There are, of course, theories addressing various aspects of the subject. But I think it is fair to say that no existing theory can be applied to the full range of international law questions. The only exceptions are theories that simply assume a propensity to comply with international law, thereby dodging one of the most central questions in the field.

This book seeks to build a comprehensive theory of international law. It not only helps us to understand that field, but also strengthens the ability of international legal practitioners and academics to explain why the subject matters, and why it is an essential tool for addressing so many of the world’s problems.

The foundation of the project is a theory of international law based on the already mentioned Three Rs of Compliance. Though each of the Three Rs is important, the book devotes the most space to a discussion of reputation. The role of reputation has been familiar to political scientists (among others) for some time, but the discussion of reputation in the book moves us forward in thinking about how reputation affects international law and when reputation is likely be most (or least) effective. One example is the challenge of multilateral cooperation (e.g., climate change). Unlike retaliation and reciprocity, reputational sanctions do not suffer from free rider or credibility problems and so may be able to deliver cooperation that would not otherwise be possible. I am obviously not the first to discuss the role of reputation, but I think the book advances a more complete account of how it generates compliance, how it is accumulated, and how it can be lost.

The book then turns to look at the sources of international law, in particular international agreements and customary international law (CIL). With respect to CIL I explain how customary rules can come about and how their status as law can cause them to influence behavior. The basic idea is that once a norm comes to be viewed as a legal requirement, the stakes in terms of reputation, retaliation, and reciprocity are raised, making it more costly to ignore that rule. This mechanism allows CIL to influence behavior. If one adopts this view of CIL, however, it becomes impossible to retain the conventional definition of CIL as opinio juris and general practice. The theory states that CIL matters because other states believe that a state has a legal obligation. This means that a form of opinio juris – specifically the views of observing states – is what “creates” CIL. Practice has no relevance. So the theory tells us that we should discard the conventional definition of CIL which, in any event, is impossible to reconcile with the way CIL is often used by courts, commentators, and states. The easiest (but not the only) example is torture which is widely practiced and yet considered to be CIL. My functional theory of CIL avoids this disconnect between theory and practice.

The book also includes a chapter entitled International Agreements. The name of the chapter foreshadows one of the claims I make – that there is no stark difference between “hard” treaties and “soft law.” Rather, states select from these alternative levels of commitment, much like they select the other features of their agreements – dispute resolution, escape clauses, substance, and so on. One immediate payoff is that we can (and should) use the same models and theories to study both types of agreements. In fact, the discussion of hard and soft law is just one example of how states trade off various design features against one another. They may opt, for example, for weaker substantive provisions but a more robust form; or they may include strong substantive provisions, but also have generous exit and escape clauses. All of the features of the agreement are negotiated at once, and must be considered together.

The discussion of agreements provides an explanation of why states enter into agreements, what they hope to get, and how treaties work. It also attempts to explain many of the features of agreements, including the scope of the agreement, the depth of the agreement, the number of members, and more. Let me illustrate the style of argument by summarizing what the book says about the scope of agreements. I begin with the assumption that the transaction costs of entering into an agreement grow larger as the scope increases, and that this causes states to prefer the narrowest possible agreement. This gives us a default position – that we should expect agreements to be as narrow as possible. I then relax this assumption in three different ways to explain why we observe treaties of varying scope. First, states may broaden the scope to increase effectiveness – it makes little sense to have an agreement on tariff barriers if you do not also restrict non-tariff barriers. Second, a broader scope may be needed to construct the transfers necessary to reach a consensus. In intellectual property, for example, after years of failed attempts to get an international agreement the United States and others succeeded in getting the TRIPs agreement at the WTO because they were able to offer developing countries concessions in the form of market access and a cessation of unilateral measures. A competing view is that the United States was able to threaten developing countries with exclusion from the trading system if those countries rejected TRIPs. Though these two versions of events differ, both describe a situation in which broadening the agreement to include both intellectual property and trade allowed negotiators to transfer value in ways that generated agreement. Finally, there may be economies of scope that justify a broader agreement. If trade in goods is to be discussed at the WTO, it makes sense to also discuss trade in services as this avoids having to duplicate many of the features and functions of the WTO.

Let me very briefly return to a couple larger themes. I hope readers will come away thinking of the Three Rs of Compliance as the key forces that make international law work, and that they will have a better sense of when and how each of these functions. With respect to the sources of law, the book attempts to explain that the various ways in which legal obligations come about are different points on a spectrum of commitment. The stronger the commitment, the higher the cost of violating international law, and the stronger the compliance-pull provided. This view is quite different from the more traditional view under which treaties, soft law, customary law, and mere norms are all considered to be distinct creatures. Other boundaries also fade when we take a rational choice approach to international law. It is impossible to sustain a view of international legal commitments as being binary in the sense that states are either “bound” or they are not. Instead, we must again think in terms of degrees of commitment. A formal treaty is traditionally said to bind a state, but at times the cost of violating that commitment will be quite small. A soft law agreement is normally considered to not be “binding” and yet may have a profound effect on behavior because a failure to comply would be costly. The more one thinks about international law through a rational choice lens, the more traditional distinctions fade into differences of degree. Surrendering old categories can be uncomfortable, because one’s sense of order is disturbed, but if the field is to advance it must seek out stronger theoretical foundation, even if doing so forces us to rethink long-held views. Hopefully this book represents a step in that direction.

Symposium: Discussion of Kontorovich’s “Inefficient Customs in International Law”

by Andrew Guzman

[Andrew Guzman is Professor of Law at UC Berkeley, Boalt Hall and a discussant in the Opinio Juris On-line Symposium. He blogs regularly at the International Economic Law and Policy Blog]

Eugene Kontorovich’s paper, Inefficient Customs in International Law is a welcome contribution to the growing analytical literature on customary international law (CIL). The question asked here is of obvious importance: are rules of CIL likely to be efficient? If the rules are efficient they improve overall welfare (however measured) and if not they reduce it. There remains a question of how the conclusion that international law rules (such as those governing the formation of CIL) affect outcomes given that there is no institution capable of changing those basic rules. This is an awkward question here, but it is similarly awkward with respect to a great deal of international law scholarship that includes a normative component.

Rather than attempting to determine if CIL in its entirety yields some form of net efficiency gain, Eugene remains agnostic about the desirability of CIL as a single general category. The key thrust of the article is a call to evaluate individual instances of CIL in an attempt to determine if they are likely to be efficient. This evaluation is to be done using a multifactor test that includes the number of states involved, the extent to which relevant transactions are repeated over time, the homogeneity of the group, the presence of reciprocity, and whether the rules govern insiders only or also affects outsiders. As with any multifactor test application here is a challenge. There is no metric to evaluate any one of these categories (e.g., how many states count a “a lot?” Ten? Twenty? Fifty? Two hundred?) and no way to know how much weight should be given to each. This difficulty is apparent when Eugene attempts to apply the criteria to specific categories of CIL (diplomatic relations, war, and human rights). The analysis is necessarily ad hoc and one wonders if there is any way to separate the multi-factor test from a direct and subjective assessment of whether the substantive rule seems efficient or not. That may not be so bad, however, as this sort of direct assessment may be a good way to evaluate the efficiency of CIL rules.

Eugene proposes that CIL rules be subjected to “structural adjudication,” a process in which customs would “only be given legal status when they arose in an environment conducive to the production of efficient norms.” Whatever else one thinks of this proposal, it can only apply to that very narrow slice of CIL that comes to be adjudicated before an international tribunal (it could be done before a domestic tribunal, but the question of bias in such a context would outweigh the gains from the structural analysis the Eugene calls for). It would be helpful to consider the bulk of CIL norms – those that do not get adjudicated – could be evaluated.

Something else should be said about comparing the doctrine of CIL to some notion of efficiency. As is clear to anyone observing CIL (and as Eugene clearly recognizes) some rules of CIL exist despite the fact that the supposed requirements of opinio juris and general practice are absent. CIL rules of human rights are the most conspicuous of these. Whatever makes a CIL rule against torture exist, it is not the combination of opinio juris and general practice. Because Eugene’s project asks whether CIL rules that arise under the standard doctrinal test are efficient, his analysis does not speak as directly to the efficiency of human rights norms that arise in some other way. This does not undermine the claims Eugene makes, but it narrows them. To be fair to Eugene, whatever process leads to the adoption of rules of CIL outside of the classic definition is quite likely to be an even less efficient process.

I have tried to raise a couple questions about the discussion in this paper, but the bottom line is that this is a good and valuable paper. There are aspects of it that could be contested, but the question, method, and analysis strikes me as basically right. Academic papers are worthwhile if they affect the way we think about significant questions, and Eugene’s paper on the efficiency of CIL does exactly this.