Reputation and Rational Choice: Some Limits?

by Alex Geisinger

I’d like to thank everyone involved for having me. I, too, look forward to an engaging discussion.

Let me state from the outset that I agree with Professor Guzman regarding the nature of the debate. I believe there are interesting things to be learned from rational choice approaches as well as from constructivist and other approaches to international law. I have just finished a review, along with my co-author, Michael Stein, of How Rational Choice Works for the Michigan Law Review and much of the review we wrote reflects this general point.

I thus begin my first inquiry into the book by considering what Professor Guzman himself describes as the parsimonious vision of international law he develops in the book. In particular, I query the usefulness of a theory that models treaties solely on cooperation or coordination games and leaves reputation to playing a role only as a force of compliance. I see that Professor Alford has gotten to some of this ahead of me but I hope that my post can add some additional thoughts regarding the specific limits of parsimonious rational actor theories.

To make my concerns clear, I’d like to turn to the area of human rights treaties. If I am correct in my understanding of Professor Guzman’s parsimonious structure, such treaties will only come into existence if they further the direct interests of states. Put another way, a state will ratify a treaty only if ratification advances directly its own interests. (I will discuss my use of the word “directly” below). Of course, as Dean Koh has suggested previously (and as Professors Guzman and Alford have begun to address), it is hard to understand human rights treaties within the framework of coordination and cooperation. Professor Guzman suggests in his book that human rights treaties can be explained within this framework because the preferences of a number of states after World War II have evolved to include a preference for a provision of human rights to the citizens of other states.

This observation, to me, gets us about half-way there. We still have to account for why ratification advances the interests of those other states. It seems to me that the hidden assumption that makes entering such human rights regimes worthwhile for these other states is the recognition that entering such regimes will provide direct material benefits such as aid. The problem, of course, is that most treaties don’t provide such direct benefits.

Where I am left, then, is that the other states are ratifying human rights treaties because they perceive these treaties to provide them with benefits somewhere down the line. This, to me, is “reputation”. Yet Professor Guzman’s parsimonious rational choice theory cannot account for this reputational concern for two reasons. First, reputation is left to playing a role in treaty compliance only. Second, reputation as Professor Guzman describes it, is simply based on reputation for complying with obligations. Yet, as the foregoing analysis suggests, “reputation” must play some role in creating the (treaty) obligations in the first place.

So, if my account is correct, the problem with theories that model state behavior only in terms of cooperation and coordination, is that they can’t account for some other mechanism of treaty ratification that we loosely call “reputation”. That is they don’t explain the mechanism whereby other state ratifies human rights treaty because other state believes ratification will provide material benefit somewhere down the line. It may be that ratification creates future benefits by signaling a state’s general willingness to cooperate, a state’s value of group membership or a state’s discount rate or that ratification reflects the internalization of a norm. Professor Guzman seems to pick up on some of these former mechanisms, when he responds to Professor Alford that treaty ratification can send a signal if it is costly enough. All of these seem fruitful areas for analysis. However, my understanding is that a parsimonious rational choice theory (such as the one Professor Guzman so elegantly and valuably develops) does not explain state behavior in this situation because it limits reputation to a role as a force of compliance based on signaling a willingness to adhere to already existing obligations. Moreover, I would suggest that, the benefit of human rights treaties is that they throw these reputational influences into relief. However reputational influences are probably not limited to playing a role just in human rights treaty ratification. It seems likely that, to the extent reputation plays a role in human rights treaty ratification it plays a role in ratification of other treaties as well. If this is a correct reading of the parsimonious theory, am I wrong in my observation that it cannot account for the role of reputation in treaty formation?

I hope in my effort to be clear I have not sounded too forceful and I look forward to all responses.

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.

Reputational Capital and the International Criminal Court

by Roger Alford

Guzman’s book is an extremely useful addition to the literature, offering a rational choice explanation for compliance with international law. I think his three Rs of compliance (retaliation, reciprocity, and reputation) accurately reflect the best arguments for why states comply with international law.

But as I was reading the book I was struck by the fact that none of the three Rs really applies with respect to certain multilateral treaties, such as the Rome Statute establishing the International Criminal Court. As you indicate, reciprocity and retaliation are not particularly effective tools in the multilateral context, (pp. 64-68), and there is no reason to think they would be in the specific context of the ICC.

As for reputational sanction, for most states there is a reputational payoff in joining and complying with the ICC, with little to no cost. For the overwhelming majority of states, it is a cost-free treaty because there are no nonreputational payoffs for non-compliance. The only states for which reputational sanction is even possible are those states willing to commit military forces to promote international peace and security. (Rogue states presumably care little about reputational harm). For those states, there is the constant risk that if it signs onto the Rome Statute and engages in any conduct that arguably is a violation, it will have a reputational cost. The calculus may be that it is better to avoid the obligation than suffer the possibility of reputational harm.

You suggest that a sensible model of reputation building cannot lead to the conclusion that Bolivia, a landlocked country, can improve its reputation simply by committing to keep its ports open. (p. 74). But that is exactly the situation for the overwhelming majority of states who have signed the Rome Statute. They enjoy a reputational payoff simply by adhering to and complying with a treaty that costs them nothing.

How so? Reputation is relative, and states sitting on the sidelines enjoy a reputational enhancement for signing onto the Rome Statute as they watch the reputation of states in the theater of conflict diminish for failing to sign. Thus, reputational harm applies not only for violating international law, but also for refusing to be bound by it. Conversely, there is a reputational payoff for consenting to be bound to a high profile, cost-free treaty.

Rather then the reputation of the United States enhanced for its willingness to commit forces abroad to maintain international peace and security and provide collective self-defense, its reputation for compliance with international law is diminished simply for refusing to abide by rules that functionally apply to only a very select group of states. (I of course am not talking about the separate reputational harm to the United States for its misuse of military force, in some cases in violation of international law).

I know that reputation is multi-faceted, and you are focusing on the reputation for compliance with international law. But it seems that the reputation for adherence and compliance to international law are closely connected, or at least more closely connected than you suggest in your book.

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.

Opinio Juris Book Discussion: Andrew Guzman, “How International Law Works”

by Peggy McGuinness

The fun continues at Opinio Juris next week, February 11-14, as we host an online discussion of Professor Andrew Guzman’s book, How International Law Works, which has just been published by Oxford University Press. Professor Guzman teaches at UC-Berkeley, Boalt Hall School of Law, where he directs the International Legal Studies Program. Guzman is a prolific scholar and this book makes an important contribution to international law theory by deploying the tools of rational choice to explain how and why international law affects the behavior of states. Professor Guzman will post an introduction to his claims in the book on Monday, to be followed by commentary by Jeff Dunoff (Temple), Kal Raustiala (UCLA) and Alex Geisinger (Drexel). Some of the OJ regulars will be joining in the discussion. We welcome comments from our readers as well.

If you would like to order a copy of the book, you can do so here at the OUP website (keeping in mind that ASIL members get a discount!).