Author: 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.

[Tim Meyer is an Assistant Professor of Law at the University of Georgia School of Law.] This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below. Monica Hakimi’s Unfriendly Unilateralism is a very welcome addition to the growing body of literature on international lawmaking. Hakimi’s basic claim is that states often act unilaterally in ways that prompt changes to international law. She defines unilateral action as that which takes place outside the confines of the collective decision-making processes commonly associated with international lawmaking (p. 111). These unilateral actions can also work to the detriment of some states (hence, “unfriendly”). In the enforcement context, Hakimi argues, international law has long recognized a role for unfriendly unilateralism. Rules on countermeasures tell us when one state’s imposition of penalties on another state is excused. Hakimi’s article insightfully describes how the doctrinal focus on enforcement obscures and distorts the role that unilateralism can play in lawmaking. Hakimi makes two key points. First, descriptively, she argues that despite the focus on unilateralism’s role in relation to enforcement issues, states nevertheless use (often noncompliant) unilateral action to prompt changes in the law. Second, Hakimi argues that unilateral action can be good for international law. By overcoming the status quo bias that exists in collective decision-making procedures, unilateralism can allow the law to adapt to changed circumstances. Hakimi’s descriptive claim is very persuasive. In developing her argument, Hakimi does a wonderful job of exposing one of the central tensions in international law: that states are both international law’s subjects and its authors. International lawyers, scholars, and states must be mindful that states often have mixed motives when acting. Some noncompliant actions are simple cheating and can be addressed as such. States intend other noncompliant acts to be juris-generative, though. Treating these acts as run-of-the-mine noncompliance risks, among other things, underestimating how invested states are in using international law as a tool to enhance cooperation. Indeed, not only do states take unilateral action to prompt the law’s revision; they also build into international agreements devices that encourage unilateral action. Exit clauses, regime shifting, and soft law are common tools in states’ treaty-making practice that encourage renegotiation by permitting states to unilaterally depart from the legal status quo. As Hakimi very effectively documents, states’ resort to unilateralism—both when designing international agreements and after such agreements exist—can help circumvent the formal difficulties inherent in amending legal rules in a system in which all states must consent to their own legal obligations.

[Tim Meyer is an Assistant Professor of Law at the University of Georgia School of Law] As is de rigueur in discussions of compliance with international law, von Stein’s chapter quotes in the opening paragraph Louis Henkin’s statement that “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time” (p. 477) – the claim that launched a thousand journal articles.  Appropriately, von Stein’s excellent review of the compliance literature returns to Henkin in conclusion, noting in sum that “we know, for instance, that it is not the case that almost all states respect their obligations almost all the time.”  (emphasis in original) (p. 495).  In between, von Stein provides a clear, concise, and illuminating review of theories of compliance with international law and the empirical evidence for and against, and empirical challenges in evaluating, these theories.  International law seems to drive states to conform to its mandates at least some of the time, and our understandings of the mechanisms at work is improving, if still in need of improvement. In this comment, I want to suggest one way in which we can deepen our understanding of how international law affects state behavior. Specifically, I want to problematize the notion of compliance as a dependent variable.  Von Stein’s essay describes the state of the art in compliance studies, but as Dunoff and Pollack note the IL/IR literature consists overwhelmingly of the application of IR theories to international law.  Reconceptualizing how international law affects state behavior is a key way in which law can increasingly inform IL/IR scholarship. To put it simply, compliance – “the degree to which state behavior conforms to what an agreement prescribes or proscribes” (p. 478) – is undoubtedly a useful place to start studying how international law affects behavior, and great strides have been made in this area, but moving forward we need a conception of legal process that more accurately reflects how states actually implement and evaluate compliance with international law.