When, what, and why do States choose to delegate?

Law and Contemporary Problems

Volumn 71, Issue 1, 2008, Pages 150-180

  Koremenos, Barbara ^a  

^a UNIVERSITY OF MICHIGAN   (United States)

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EID: 48949084735     PISSN: 00239186     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (96)

1. See generally Curtis A. Bradley & Judith Kelley, The Concept of International Delegation, 71 LAW & CONTEMP. PROBS. 1 (Winter 2008).
2. See, e.g., Michael J. Tierney, Delegation Success and Policy Failure: Collective Delegation and the Search for Iraqi Weapons of Mass Destruction, 71 LAW & CONTEMP. PROBS. 283 (Winter 2008).
3. Individual scholars know a great deal about the nature and consequences of delegation relationships within certain international agreements and organizations. See, e.g., Alexander Thompson, Coercion Through IOs: The Security Council and the Logic of Information Transmission, 60 INT'L ORG. 1 (2006) (examining the United Nations Security Council to explain why states channel coercive policies through international organizations).
4. For such consequences within certain issue areas, see, e.g., Lisa Martin, Distribution, Information, and Delegation to International Organizations: The Case of IMF Conditionality, in DELEGATION AND AGENCY IN INTERNATIONAL ORGANIZATIONS (Darren G. Hawkins et al. eds., 2006);
5. Karen J. Alter, Private Litigants and the New International Courts, 39 COMP. POL. STUD. 22 (2006) (showing a trend towards creating and using international courts);
6. David L. Nielson & Michael J. Tierney, Delegation to International Organizations: Agency Theory and World Bank Environmental Reform, 57 INT'L ORG. 241 (2003) (examining lending policies for environmentally significant projects administered through the International Monetary Fund and the World Bank). All of these scholars have gathered their own very detailed and compelling evidence within these agreements or organizations or within issue areas. Nonetheless, generalizing from this very small sample of institutionalized international cooperation and international delegation is often misleading.
7. See generally Barbara Koremenos et al., The Rational Design of International Institutions, 55 INT'L ORG. 761 (2001) (elaborating the theory of Rational Design as applied to international organizations).
8. Included in institutionalized international cooperation are any explicit arrangements, negotiated among international actors, that prescribe, proscribe, or authorize behavior; thus this includes the over 50,000 international agreements that are registered with the United Nations.
9. Koremenos et al., supra note 4, at 776.
10. Id. at 775.
11. Barbara Koremenos, THE CONTINENT OF INTERNATIONAL LAW (2007) [hereinafter KOREMENOS, CONTINENT]. In CONTINENT, I add the following possible cooperation problems: Encouraging positive externalities, discouraging negative externalities, deadlock, and "other." The other category includes areas of cooperation such as foreign aid for which there are no or few strategic considerations and pure coordination games without uncertainty. More than one answer can be chosen for each agreement.
12. In CONTINENT and in Barbara Koremenos, If Only Half of International Agreements Have Dispute Resolution Provisions, Which Half Needs Explaining?, 36 J. LEGAL STUD. 189 (2007) [hereinafter Koremenos, Which Half?], multiple examples of the operationalization of these cooperation problems are given, as well as elaboration on how they were coded.
13. Given that all the agreements in the sample include at least two state actors, whenever tasks are performed by a single focal actor, the states are delegating.
14. In univariate analyses, each variable in a data set is analyzed separately.
15. Koremenos et al., supra note 4, at 787-91.
16. Id.
17. Id. Specifically, the variable number can capture asymmetries with respect to both power and interests. In the empirical analyses below, number, power, and heterogeneity of interests are included as separate variables.
18. Cooperation problems not included in the category of complex problems include encouraging endeavors with positive externalities, discouraging those with negative externalities, and solving coordination games. Though uncertainty about preferences could be considered a complex problem, few if any of the agreements in the sample have that as one of their underlying problems, which is interesting in and of itself. See Koremenos, CONTINENT, supra note 8.
19. See, e.g., Margaret E. Keck & Kathryn Sikkink, ACTIVISTS BEYOND BORDERS: ADVOCACY NETWORKS IN INTERNATIONAL POLITICS passim (1998) (arguing that NGOs have made an impact in human rights and environmental politics by bringing attention to particular issues and changing states' perceptions of their national interests).
20. Kal Raustiala, States, NGOs, and International Environmental Institutions, 41 INT'L STUD. Q. 719, 732-33 (1997).
21. Id. at 720.
22. Id. at 719.
23. Id. at 728-30.
24. Thomas Princen & Matthias Finger, ENVIRONMENTAL NGOS IN WORLD POLITICS 33 (1994).
25. Oliver Meier & Clare Tenner, Nongovernemental Monitoring of International Agreements, in VERIFICATION YEARBOOK 207, 217 (Trevor Findlay ed., 2000).
26. United Nations Treaty Collection, http://untreaty.un.org/English/ access.asp (last visited Jan. 28, 2008).
27. The data are gathered as part of a research project supported by the National Science Foundation CAREER Award: "Designing International Agreements: Theoretical Development, Data Collection, and Empirical Analysis" (SES-0094376). The Internet collection at the time the sample was drawn contained over 34,000 international agreements "which have been published in hard copy in over 1,450 volumes, which corresponds to all treaties and subsequent actions registered up to December 1986." Id.
28. In the sample used for this article, sixty-four of the ninety-seven agreements are bilateral. The reason for this is that bilateral cooperation is far more prevalent than multilateral cooperation. For example, at the time the sample was drawn, the online version of the UNTS contained 2,330 multilateral agreements and 32,936 bilateral agreements. Nothing about the design of the data-collection project precludes it from including other issue areas; the four chosen are included because they are currently the most important in the international cooperation literature. See the Appendix for a list of the set of agreements used in the empirical analyses.
29. Bradley & Kelley, supra note 1, at 6.
30. Organization of American States, American Convention on Human Rights, Pact of San José, Costa Rica, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 144 [hereinafter San José Pact].
31. Id. at 154.
32. Bradley & Kelley, supra note 1, at 6.
33. San José Pact, supra note 25, at 154.
34. Bradley & Kelley, supra note 1, at 3-9.
35. Id. at 6.
36. Agreement for the Promotion and Protection of Investments, U.K.-Egypt, June 11, 1975, 1032 U.N.T.S. 32.
37. Id.
38. This is one of the most "controversial cases" of internal delegation because it could be claimed that, when disputing members must each choose an arbitrator to form a panel, these arbitrators are neutral third parties. Nonetheless, they could just as easily be retired judges from the member states and hence biased. The conceptualization of internal delegation in this hardest case stems from the assumption that the units of analysis that bargain or negotiate at the international level are the states - not the governments within those states. The unitary-actor assumption is a good baseline as well as a focal point. Although it is known that domestic politics implies that it is not always the case that the state should be modeled as unitary, it becomes very difficult in reading agreements to ascertain which level of the state is the one bargaining, influencing, being influenced, et cetera. There is simply not enough detail in agreements to discover such things. In contrast, the state is a salient unit. Given this, whenever a body is (or is likely to be) composed of some representative of at least some of the member states, this body is coded as internal - that is, a body created by the agreement and, hence, a form of internal delegation. For example, suppose that when Bolivia and the United States need to arbitrate a dispute, two very professional lawyers, one from the United States and one from Bolivia, with international reputations for being fair, are appointed as the arbitrators. If the government were used as the unit of analysis, this would be external delegation because the lawyers do not represent the governments. But given the assumption that the nation-state is the unit of analysis, the lawyers are citizens of the disputing parties as well as experts. Hence, this is a case of internal at delegation. "Other than the delegation of certain dispute resolution, all other forms of internal delegation are clear-cut examples of collective bodies or subgroups of states.
39. See Barabara Koremenos, Glossary: Delegated Tasks, http://sitemaker.umich.edu/koremenos/files/ glossary_delegated_tasks_jan08.doc (last visited Feb. 6, 2008) for a definition and example of each of the tasks listed in Table 1.
40. San José Pact, supra note 25, at 155.
41. Id.
42. Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4,1950,213 U.N.T.S. 222.
43. Id. at 236-38.
44. Barbara Koremenos, AN ECONOMIC ANALYSIS OF INTERNATIONAL RULEMAKING (2007).
45. Bradley & Kelley, supra note 1, at 10-16.
46. In her contribution to this volume, Karen Alter elaborates four roles that a judiciary can take: Dispute resolution, administrative review, enforcement, and constitutional review. Karen Alter, Delegating to International Courts: Self-Binding vs. Other-Binding Delegation, 71 LAW & CONTEMP. PROBS. 37 (Winter 2008). Thus far in the random sample, only one agreement has actually created a court: The San José Pact created the Inter-American Court of Human Rights, which has constitutional review and dispute resolution capabilities (adjudication). The court does not have enforcement capabilities; it can only make recommendations on "binding" rulings (rulings are only binding if member states recognize the jurisdiction of the court). Therefore, with that one exception, whenever a court, such as the ones Alter analyzes, is mentioned in the agreement, it is called upon to help with dispute resolution between the parties to some other agreement, with none of the other functions being mentioned.
47. Treaty for the Prohibition of Nuclear Weapons in Latin America, Feb. 14, 1967, 634 U.N.T.S. 326.
48. Id. at 334, 340.
49. Id. at 334.
50. Id. at 342-44.
51. Bradley & Kelley, supra note 1, at 20.
52. Id. at 28-30.
53. Id. at 30
54. Id. at 28.
55. Autonomy costs are defined by Bradley and Kelley. Id.
56. See supra Part I.
57. Koremenos, Which Half, supra note 8, at 189.
58. See supra Part II.
59. See Kenneth Abbott & Duncan Snidal, Why States Act Through Formal International Organizations, 42 J. CONFLICT RESOL. 3, 16 (1998).
60. See supra Part II.
61. A log of the number of participants is used, since the unlogged variable is highly right-skewed and its log is almost perfectly normally distributed.
62. I selected two parties since sixty-four of the treaties are bilateral and hence a one-unit increase is standard. Then I took the natural log of 2 and 3 to perform the calculations.
63. See Isaac Ehrlich & Richard Posner, An Economic Analysis of Rulemaking, 3 J. LEGAL STUD. 257, 273 (1974) ("For example, as suggested earlier, we expect (and observe) more delegation of legislative power by the United States Congress than by the British Parliament because the costs of producing legislation are lower under the parliamentary system with its well disciplined parties and its effectively unicameral legislature.").
64. Darren G. Hawkins et al., Delegation Under Anarchy: States, International Organizations, and Principal-Agent Theory, in DELEGATION AND AGENCY IN INTERNATIONAL ORGANIZATIONS 3, 21 (Darren G, Hawkins et al. eds., 2006).
65. Gartzke and Jo's "Affinity of Nations Index," which measures the similarity in states' preferences based on voting preferences in the United Nations General Assembly, is used as a measure of heterogeneity. Eric Gartzke & Dong-Joon Jo, The Affinity of Nations Index, 1946-1996, Nov. 8, 2002, htttp://dss.ucsd.edu/~egartzke. Because the Affinity data are dyadic, I simply take the Affinity value for each bilateral agreement. For the multilateral agreements, I first create a dyad for each pair of signatories. Hence, if there are three signatories, there are three dyads; if there are four signatories, there are six dyads, and so on. For each multilateral agreement, the "weakest link assumption" is used, taking the Affinity value of the dyad with the least similar interests.
66. Marginal effect of heterogeneity is calculated holding number of parties (logged) at its mean (1.437) and the marginal effect of the number of parties is found holding heterogeneity at its mean (-0.309).
67. It could be argued that the presence of a superpower partly captures the asymmetry of power that is part of the variable, number, in rational design. Nonetheless, this is an imperfect measure at best. Some quantification of the power of the other signatories would be needed so that a measure of the discrepancy in power among agreement members could be created.
68. "Polity" is one of the most widely used measures of democracy. Among the dimensions of democracy captured in Polity are chief-executive constraints and the competitiveness of political participation.
69. See Neil Siegel, International Delegations and the Values of Federalism, 71 LAW & CONTEMP. PROBS. 93 (Winter 2008).
70. The superpower variable is equal to one if the U.S. or the USSR was a signatory and zero otherwise.
71. THE FEDERALIST NO. 62 (James Madison) (arguing that the legislative process is constructed to include an executive and a bicameral legislative branch in order to limit "excess law-making" which can result through delegation). His point is that delegation can be dangerous when it makes policy change and the construction of new laws too easy since this can lead to an abuse of power.
72. The literature has dealt with the issue of constraining agent "slippage" by emphasizing that the preferences of the agent and the principal are seldom aligned. OLIVER E. WILLIAMSON, THE ECONOMIC INSTITUTIONS OF CAPITALISM: FIRMS, MARKETS, RELATIONAL CONTRACTING 30 (1985).
73. The principal may, therefore, choose or construct an agent that has similar preferences. DARREN G. HAWKINS & WADE JACOBY, How Agents Matter, in DELEGATION AND AGENCY IN INTERNATIONAL ORGANIZATIONS 199-228 (David A. Lake et al. eds., 2006). Principals may also do this by limiting the powers or mandate of the institution or by restricting the specialization of the agent to limit opportunism.
74. EIRIK G. FURUBOTN & RUDOLPH RICHTER, INSTITUTIONS AND ECONOMIC THEORY: THE CONTRIBUTION OF THE NEW INSTITUTIONAL ECONOMICS 265-81 (2000);
75. RODERICK D. KIEWIET & MATHEW D. MCCUBBINS, THE LOGIC OF DELEGATION 25 (1991).
76. For classic statements reflecting this view, see generally Armen A. Alchian & Harold Demsetz, Production, Information Costs, and Economic Organization, 62 AM. ECON. REV. 775, 775-95 (1972);
77. Eugene Fama, Agency Problems and the Theory of the Firm, 88 J. POL. ECON. 288, 288-307 (1980).
78. Kenneth W. Abbott & Duncan Snidal, Hard and Soft Law in International Governance, 54 INT'L ORG. 421, 437 (2000).
79. All of these analyses use Bueno de Mesquita's risk-attitude measure, which uses a state's alliance portfolio to determine its level of risk aversion. Bruce Bueno de Mesquita, The War Trap Revisited: A Revised Expected Utility Model, 79 AM. POL. SCI. REV. 156, 158-59 (1985). Specifically, the closer a state is to having an alliance portfolio that maximizes its security, the more risk-averse it is presumed to be. In EUGene (Expected Utility Generation and Data Management Program), this risk attitude variable ranges from -1 (very risk-averse) to +1 (very risk-acceptant) and is based on region.
80. See generally Scott D. Bennett & Allan C. Stam, A Universal Test of an Expected Utility of War, 44 INT'L STUD. Q. 451 (2000). To measure risk attitudes in bilateral treaties, I calculate each signatory's risk attitude towards the other's region. For multilateral treaties, I find the mean of each signatory's regional risk scores. I use a "weakest link" assumption, and measure the agreement as a function of the risk attitude of the most risk-averse signatory. Finally, I invert the scale to create a measure of risk-aversion with -1 being the least risk-averse and +1 being the most risk-averse.
81. In fact, whether states are prohibited or not from adding reservations is another facet of institutional design that deserves further study.
82. Koremenos, supra note 39, passim (drawing on Ehrlich & Posner, supra note 58). This challenges the special issue on legalization, Legalization and World Politics, which does not suggest that these two design dimensions are substitutes.
83. See Judith Goldstein et al., Legalization and World Politics, 54 INT'L ORG. 385 (2000).
84. This is consistent with Koremenos, Which Half, supra note 8, at 207-09.
85. Ehrlich & Posner, supra note 58, also predict that greater heterogeneity across parties will lead to less precise contracts and therefore greater delegation of dispute resolution authority.
86. Bradley & Kelley, supra note 1, at 24.
87. Id.
88. Oona A. Hathaway, International Delegation and State Sovereignty, 71 LAW & CONTEMP. PROBS. 115 (Winter 2008).
89. Barbara Koremenos, Contracting Around International Uncertainty, 99 AM. POL. SCI. REV. 549, 561 (2005).
90. Id.
91. Id. at 549.
92. The correlation between number (logged participants) and heterogeneity is 0.6426†, whereas between democracy (Polity mean) and number (logged participants) it is -0.3363†.
93. Hawkins et al., supra note 59, at 21.
94. See generally Ehrlich & Posner, supra note 58.
95. See Bradley & Kelley, supra note 1, at 1-2.
96. Hawkins et al., supra note 59, at 21.