Political science research on international law: The state of the field

American Journal of International Law

Volumn 106, Issue 1, 2012, Pages 47-97

  Hafner Burton, Emilie M ^a,b   Victor, David G ^a,b   Lupu, Yonatan ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84880263113     PISSN: 00029300     EISSN: None     Source Type: Journal    
DOI: 10.5305/amerjintelaw.106.1.0047     Document Type: Article

References (505)

1. Some of these legal works that draw, in part, on political science methods and concepts look across many substantive areas of law and focus on topics such as the role of law in managing economic relations, the effectiveness of law, legitimacy, and game-theoretic perspectives. See, e.g., Jeffrey L. Dunoff&Joel P. Trachtman, Economic Analysis of International Law, 24 YALE J. INT'L L. 1, 3 (1999);
2. JACK L.GOLDSMITH&ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW (2005);
3. Jack Goldsmith, Sovereignty, International Relations Theory, and International Law, 52 STAN. L. REV. 959 (2000) (book review);
4. Claire R. Kelly, Realist Theory and Real Constraints, 44 VA. J. INT'L L. 545 (2004);
5. Richard A. Falk, The Relevance of Political Context to the Nature and Functioning of International Law: An Intermediate View, in THE RELEVANCE OF INTERNATIONAL LAW: ESSAYS INHONOR OF LEO GROSS 133 (Karl W. Deutsch&Stanley Hoffmann eds., 1968);
6. JUTTA BRUNŃEE&STEPHEN J.TOOPE, LEGITIMACY AND LEGALITY IN INTERNATIONAL LAW: AN INTERACTIONAL ACCOUNT (2010);
7. John K. Setear, An Iterative Perspective on Treaties: A Synthesis of International Relations Theory and International Law, 37HARV. INT'L L.J. 139 (1996);
8. Jens David Ohlin, Nash Equilibrium and International Law, 96 CORNELL L. REV. 869 (2011). Some legal studies, drawing on political science methods and concepts, examine the functioning of legal machinery.
9. e.g., John K. Setear, Responses to Breach of a Treaty and Rationalist International Relations Theory: The Rules of Release and Remediation in the Law of Treaties and the Law of State Responsibility, 83 VA. L. REV. 1 (1997). A large and growing body of legal literature, drawing from political science, focuses on particular issue areas, most notably human rights.
10. See, e.g., Oona A. Hathaway, Do Human Rights Treaties Make a Difference?, 111 YALE L.J. 1935 (2002);
11. Laurence R. Helfer, Overlegalizing Human Rights: International Relations Theory and the Commonwealth Caribbean Backlash Against Human Rights Regimes, 102 COLUM. L. REV. 1832 (2002). In addition, a large literature addresses the environment.
12. See, e.g., Jutta Brunnée&Stephen J. Toope, The Changing Nile Basin Regime: Does Law Matter?, 43 HARV. INT'L L.J. 105 (2002);
13. Eyal Benvenisti, Collective Action in the Utilization of Shared Freshwater: The Challenges of International Water Resources Law, 90 AJIL 384 (1996);
14. Jonathan Baert Wiener, Global Environmental Regulation: Instrument Choice in Legal Context, 108YALE L.J. 677 (1999). Trade law is oneamongvarious other areas drawing on political science scholarship.
15. See, e.g.,G. Richard Shell, Trade Legalism and International Relations Theory: An Analysis of the World Trade Organization, 44DUKE L.J. 829 (1995).
16. For important work encouraging the collaboration between the two fields, see Kenneth W. Abbott, Modern International Relations Theory: A Prospectus for International Lawyers, 14 YALE J. INT'L L. 335 (1989) (overview of international relations (IR) theory and legal scholars' approaches);
17. Anne-Marie Slaughter Burley, International Law and International Relations Theory:ADual Agenda, 87 AJIL 205, 220 (1993) (discussing the changes in the approach of IR scholars to international law);
18. Robert Beck, International Law and International Relations: The Prospects for Interdisciplinary Collaboration, in INTERNATIONAL RULES: APPROACHES FROM INTERNATIONAL LAW AND INTERNATIONAL RELATIONS 3 (Robert J. Beck, Anthony Clark Arend & Robert Vander Lugt eds., 1996).
19. For reviews of the progress of this collaboration, see Kenneth W. Abbott, Toward a Richer Institutionalism for International Law and Policy, 1 J. INT'L L.&INT'LREL. 9 (2005);
20. Oona A. Hathaway&Ariel N. Lavinbuk, Rationalism and Revisionism in International Law, 119HARV. L. REV. 1404 (2006) (book review);
21. Symposium, Rational Choice and International Law, 31 J. LEGAL STUD. S1 (2002);
22. Robert O. Keohane, International Relations and International Law:TwoOptics, 38HARV. INT'L L.J. 487 (1997) (noting a significant convergence in the research agendas of IR and international law);
23. Anne-Marie Slaughter, Andrew S. Tulumello&Stepan Wood, International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship, 92 AJIL 367 (1998) (reviewing the convergence of IR and international legal scholarship and providing a bibliography of sources);
24. and Jeffrey L. Dunoff, Why Constitutionalism Now? Text, Context and the Historical Contingency of Ideas, 1 J. INT'L L. & INT'L REL. 191 (2005).
25. Stephen D. Krasner notes that, while IR scholarship has become increasingly interested in international law, the "term 'international law' still hardly ever occurs in the titles of articles published in the three leading international relations journals, International Organization, International Studies Quarterly, and World Politics." International Law and International Relations: Together, Apart, Together?, 1 CHI. J. INT'L L. 93, 95 n.6 (2000). This trend is now shifting.
26. See generally Gregory Shaffer & Tom Ginsburg, The Empirical Turn in International Legal Scholarship: A Review and Prospectus, 106 AJIL 1 (2012).
27. See generally Steven R. Ratner & Anne-Marie Slaughter, Appraising the Methods of International Law: A Prospectus for Readers, 93 AJIL 291 (1999).
28. See Abbott, supra note 2. While Abbott's essay was the last major one that took a broad survey of political science that relates to public international law, in the intervening two decades many other essays have reviewed aspects of political science research for international lawyers, as well as points of collaboration between the fields. For a partial update of Abbott's original essay applied to a particular topic-internal conflicts such as civil wars-see Kenneth W. Abbott, International Relations Theory, International Law, and the Regime Governing Atrocities in Internal Conflicts, 93 AJIL 361, 362 (1999).
29. See, e.g., ROBERT O. KEOHANE, AFTER HEGEMONY: COOPERATION AND DISCORD IN THE WORLD POLITICAL ECONOMY (1984);
30. INTERNATIONAL REGIMES (Stephen D. Krasner ed., 1983).
31. On the role of institutions in lowering transaction costs by reducing uncertainty, see DAVID A. LAKE, ENTANGLING RELATIONS: AMERICAN FOREIGN POLICY IN ITS CENTURY (1999). Attention to transaction costs builds on a large literature, mainly in economics and decision theory, on the role of information in bargaining.Onthe role of information generally
32. see ERIC RASMUSEN, GAMES AND INFORMATION: AN INTRODUCTION TO GAME THEORY (2d ed. 1994).
33. On the problem of uncertainty in multiparty negotiations, see generallyHOWARD RAIFFA, THE ART AND SCIENCEOFNEGOTIATION (1982)
34. and David Lax&James K. Sebenius, Thinking Coalitionally: Party Arithmetic, Process Opportunism, and Strategic Sequencing, inNEGOTIATION ANALYSIS 153 (H. Peyton Young ed., 1991). On the mechanism by which uncertainty increases transaction costs
35. see George Akerlof, The Market for "Lemons": Quality Uncertainty and the Market Mechanism, 84Q. J. ECON. 488 (1970)
36. andOLIVER E.WILLIAMSON,MARKETS AND HIERARCHIES: ANALYSIS AND ANTITRUST IMPLICATIONS: A STUDY IN THE ECONOMICS OF INTERNAL ORGANIZATION (1975).
37. See George W. Downs, David M. Rocke&Peter N. Barsoom, Is the Good News About Compliance Good News About Cooperation?, 50 INT'L ORG. 379 (1996);
38. Beth A. Simmons, Compliance with International Agreements, 1 ANN. REV. POL. SCI. 75 (1998).
39. But see LOUISHENKIN, HOWNATIONS BEHAVE: LAW AND FOREIGN POLICY 47 (2d ed. 1979) ("[A]lmost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.");
40. ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY: COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS (1995).
41. But see, e.g., Richard H. Steinberg&Jonathan M. Zasloff, Power and International Law, 100 AJIL 64 (2006);
42. See, e.g., Hilary Charlesworth, Christine Chinkin&Shelley Wright, Feminist Approaches to International Law, 85 AJIL 613 (1991);
43. MARTTI KOSKENNIEMI, FROM APOLOGY TO UTOPIA: THE STRUCTURE OF INTERNATIONAL LEGAL ARGUMENT (2005).
44. See KENNETH N.WALTZ, THEORY OF INTERNATIONAL POLITICS (1979) (arguing that international rules are the pronouncements of powerful states and are subject to change along with the distribution of state power);
45. John J. Mearsheimer, The False Promise of International Institutions, 19 INT'L SECURITY, Winter 1995, at 5 (arguing that international institutions cannot have independent effects on state behavior);
46. HANS MORGENTHAU, LA NOTION DU "POLITIQUE" ET LA TH́EORIE DES DIFF́ERENDS INTERNATIONAUX 65-71 (1933) (arguing that international law is biased toward stability). For a review of the influence of realist thought on legal scholarship, see Steinberg & Zasloff, supra note 13.
47. See generally STEVEN LUKES, POWER: A RADICAL VIEW (2d ed. 2005);
48. see also Michael Barnett&Raymond Duvall, Power in International Politics, 59 INT'L ORG. 39 (2005).
49. See generally Robert A. Dahl, The Concept of Power, 2 BEHAV. SCI. & L. 201 (1957).
50. See generally Richard McKelvey, Intransitivities in Multidimensional Voting Models and Some Implications for Agenda Control, 12 J.ECON.THEORY 472 (1976);
51. Kenneth A. Shepsle, Institutional Arrangements and Equilibrium in Multidimensional Voting Models, 23 AM. J. POL. SCI. 27 (1979);
52. William Riker, Implications from the Disequilibrium of Majority Rule for the Study of Institutions, 74 AM. POL. SCI. REV. 432 (1980).
53. For example of work by so-called realist scholars on the interaction of state power and international legal institutions, see G. John Ikenberry, Institutions, Strategic Restraint, and the Persistence of American Postwar Order, 23 INT'L SECURITY, Winter 1999, at 43 (arguing that while state power is a dominant force, the Western order and post-WWII institutions have endured and facilitated cooperation despite changes in the power of their creators);
54. Robert Pape, Soft Balancing Against the United States, 30 INT'L SECURITY, Summer 2005, at 45 (arguing that other powers are likely to respond to growing U.S. power using "soft-balancing," nonmilitary tools, including international institutions);
55. Stephen Krasner, Sharing Sovereignty: New Institutions for Collapsed and Failing States, 29 INT'L SECURITY, Fall 2004, at 85 (arguing that states should deploy a variety of new domestic and international institutional arrangements to govern failed states that have left vacuums in power);
56. William C. Wohlforth, The Stability of a Unipolar World, 24 INT'L SECURITY, Summer 1999, at 5 (arguing that, as a unipolar power, the United States should maintain international security institutions to reduce conflict behavior and limit expansion by other major powers);
57. LLOYD GRUBER, RULING THE WORLD: POWER POLITICS AND THE RISE OF SUPRANATIONAL INSTITUTIONS (2000) (focusing on the ability of extremely powerful states to "go it alone" in creating international laws and institutions that mirror their interests at the expense of other states that participate only because they have no better option).
58. For example, scholarship on the Treaty on the Non-proliferation of Nuclear Weapons (NPT), July 1, 1968, 21 UST 483, 729 UNTS 161, has explored how powerful states mobilized both inducements and penalties in support of the Treaty's goals.
59. Trevor McMorris Tate, Regime-Building in the Non-proliferation System, 27 J. PEACE RESEARCH 399 (1990) (arguing that major powers are keeping the regime's aim global, thereby insulating it from political wrangling on both domestic and international levels);
60. James F. Keeley, Legitimacy, Capability, Effectiveness and the Future of the Non-proliferation Treaty?, inNUCLEARNON-PROLIFERATIONANDGLOBALSECURITY(David Dewitt ed., 1987) (arguing that certain powerful members are more apt to strengthen or weaken the regime than others);
61. Harald Müller, Compliance Politics: A Critical Analysis of Multilateral Arms Control Treaty Enforcement,7NONPROLIFERATION REV., Summer 2000, at 77 (arguing that for the NPT to be effective, powerful states must be able to sanction violators visibly and effectively or at least to delegate sufficient resources and backing to an agent of the regime to do so).
62. See generally Robert D. Tollison & Thomas D. Willett, An Economic Theory of Mutually Advantageous Issue Linkages in International Negotiations, 33 INT'LORG. 425 (1979);
63. James K. Sebenius, Negotiation Arithmetic: Adding and Subtracting Issues and Parties, 37 INT'L ORG. 281 (1983);
64. James E. Alt & Barry Eichengreen, Parallel and Overlapping Games: Theory and an Application to the European Gas Trade, 1 ECON. & POL. 119 (1989);
65. Ernst B. Haas, Why Collaborate? Issue-Linkage and International Regimes, 32WORLD POL. 357 (1980). Yet linkage is also used strategically by international negotiators to expand their negotiating space.
66. Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42INT'LORG. 427 (1988). Susanne Lohmann argues that issue linkage fosters cooperation when actors enforce punishments in one policy area for lack of compliance in others.
67. Susanne Lohmann, Linkage Politics, 41 J.CONFLICTRESOL. 38 (1997). Michael McGinnis makes a similar argument, yet notes that the attempts to introduce new issues to be linked are perilous and may result in the breakdown of cooperation.
68. Michael D. McGinnis, Issue Linkage and the Evolution of International Cooperation, 30 J. CONFLICT RESOL. 141 (1986). Christina Davis argues that issue linkage can be especially useful for overcoming domestic obstacles to cooperation.
69. Christina Davis, International Institutions and Issue Linkage: Building Support for Agricultural Trade Liberalization, 98 AM. POL. SCI. REV. 153 (2004).
70. Mark A. Pollack, Delegation, Agency, and Agenda Setting in the European Community, 51 INT'L ORG. 99, 101-02 (1997) (arguing that in some circumstances the European Commission's ability to set agendas has a large impact on the decisions taken by the Council of Ministers);
71. George Tsebelis, The Power of the European Parliament as a Conditional Agenda Setter, 88 AM. POL. SCI. REV. 128 (1994);
72. Geoffrey Garrett & George Tsebelis, An Institutional Critique of Intergovernmentalism, 50 INT'L ORG. 269 (1996);
73. George Tsebelis & Amie Kreppel, The History of Conditional Agenda-Setting in European Institutions, 33 EUR. J. POL. RES. 41 (1998).
74. They also played important roles in connection with lobbying, second-track diplomacy, and consulting for political leaders. See Emanuel Adler, The Emergence of Cooperation: National Epistemic Communities and the International Evolution of the Idea of Nuclear Arms Control, 46 INT'L ORG. 101 (1992);
75. HAROLD KARAN JACOBSON &ERIC STEIN, DIPLOMATS, SCIENTISTS, AND POLITICIANS: THE UNITED STATES AND THENUCLEAR TEST BAN NEGOTIATIONS (1966).
76. See Amy E. Smithson, Implementing the Chemical Weapons Convention, 36 SURVIVAL, Spring 1984, at 80.
77. See Diana O'Dwyer, First Landmines, Now Small Arms? The International Campaign to Ban Landmines as a Model for Small-Arms Advocacy, 17 IRISH STUD. INT'L AFF. 77 (2006);
78. Richard Price, Reversing the Gun Sights: Transnational Civil Society Targets Land Mines, 52 INT'LORG. 613 (1998).
79. See David Vogel, Private Global Business Regulation, 11 ANN. REV. POL. SCI. 261 (2008);
80. David Vogel, The Private Regulation of Global Corporate Conduct, in THE POLITICS OF GLOBAL REGULATION 151 (Walter Mattli &Ngaire Woods eds., 2009).
81. One of the frontiers of research in this area concerns the option of private regulation and the ability of firms to control access to essential information. For a survey of current research on private regulation, including several studies that point to the interplay between private and public regulation, see Tim Büthe, Private Regulation in the Global Economy, 12BUS.&POL. (Tim Büthe ed., 2010) (special issue), available at http://www.bepress.com/bap/vol12/iss3/art1.
82. Annegret Flohr, Hard, Soft or Fuzzy? Corporate Self-Regulation and International Legalization in the Financial Sector (2011) (unpublished Ph.D. dissertation, Technischen Universität Darmstadt) (on file with authors).
83. Earlier political science research on international institutions (called regimes in the most influential study on this topic in the early 1980s) included a place for norms, but in this research, "norms" were generally limited to facilitating cooperation between similarly self-interested actors or to constraining their behavior. See John Gerard Ruggie, International Regimes, Transactions, and Change: Embedded Liberalism in the Postwar Economic Order, 36 INT'L ORG. 379 (1982);
84. See Martha Finnemore, International Organizations as Teachers of Norms: The United Nations Educational, Scientific, and Cultural Organization and Science Policy, 47 INT'L ORG. 565 (1993);
85. MARTHA FINNEMORE, NATIONAL INTERESTS IN INTERNATIONAL SOCIETY (1996);
86. THE CULTURE OF NATIONAL SECURITY: NORMS AND IDENTITY (Peter J. Katzenstein ed., 1996);
87. AUDIE KLOTZ, NORMS IN INTERNATIONAL RELATIONS: THE STRUGGLE AGAINST APARTHEID (1995);
88. YASEMINNUHOǦLU SOYSAL, LIMITS OFCITIZENSHIP: MIGRANTS AND POSTNATIONAL MEMBERSHIP IN EUROPE (1994).
89. See ANN E. TOWNS, WOMEN AND STATES: NORMS AND HIERARCHIES IN INTERNATIONAL SOCIETY (2010).
90. Harold Hongju Koh, Why Do Nations Obey International Law?, 106 YALE L.J. 2599 (1997) (book review). In recent years political scientists have helped elaborate on those arguments.
91. Ellen L. Lutz & Kathryn Sikkink, International Human Rights Law and Practice in Latin America, 54 INT'LORG. 633 (2000);
92. Judith Kelley,WhoKeeps International Commitments and Why? The International Criminal Court and Bilateral Nonsurrender Agreements, 101 AM. POL. SCI. REV. 573 (2007).
93. THOMAS M. FRANCK, THE POWER OF LEGITIMACY AMONG NATIONS (1990);
94. Robert Howse, The Legitimacy of the World Trade Organization, in THE LEGITIMACY OF INTERNATIONAL ORGANIZATIONS 355 ( Jean-Marc Coicaud & Veijo Heiskanen eds., 2001). Many of these process-oriented approaches to studying law build on what is known as the New Haven approach and resonate with processoriented theories from political science (that is, models based on the third and fourth faces of power and rooted in processes such as persuasion and legitimacy).
95. HAROLD D. LASSWELL & MYRES S. MCDOUGAL, JURISPRUDENCE FOR A FREE SOCIETY: STUDIES IN LAW, SCIENCE, AND POLICY (1992);
96. PHILLIP ALLOTT, EUNOMIA: NEW ORDER FOR A NEW WORLD (1990).
97. See Jeffrey L. Dunoff, The Misguided Debate over NGO Participation at the WTO, 1 J. INT'L ECON. L. 433 (1998);
98. Robert A. Dahl,CanInternational Organizations Be Democratic?ASkeptic's View, inDEMOCRACY'SEDGES (Ian Shapiro&Casiano Hacker-Cordón eds., 1999);
99. Joseph S. Nye Jr., Globalization's Democratic Deficit: How to Make International Institutions More Accountable, 80 FOREIGN AFF., July/August 2001, at 2;
100. Andrew Moravcsik, Is There a 'Democratic Deficit' in World Politics? A Framework for Analysis, 39GOV'T&OPPOSITION 336 (2004).
101. Muchof that work has been within what political scientists call the constructivist paradigm and has been focused on the social actors and mechanisms within societies that cause change and "construct" meaning and behavior. See Jeffrey T. Checkel, The Constructivist Turn in International Relations Theory, 50WORLD POL. 324 (1998) (book review).
102. For a study that focuses on international legal institutions, including international organizations, as agents of norm creation and influence, see Martha Finnemore&Kathryn Sikkink, InternationalNormDynamics and Political Change, 52 INT'L ORG. 887, 888 (1998) (describing the origins of norms, how they exercise influence, and the conditions for that influence).
103. Michael N. Barnett&Martha Finnemore, The Politics, Power, and Pathologies of International Organizations, 53 INT'L ORG. 699 (1999) (arguing that the rational-legal authority that international organizations embody gives them power independent of the states that created them, and channels that power in particular directions; also that bureaucracies make rules but in so doing create social knowledge, define shared tasks, develop and define new types of actors, create new interests for actors, and transfer models of political organization around the world).
104. See Janice E. Thomson, State Practices, International Norms, and the Decline of Mercenarism, 34 INT'L STUD. Q. 23 (1990) (analyzing the role of the behavioral norms around use of mercenaries, although her analysis has implications for legal norms in this area);
105. Kathryn Sikkink, The Power of Principled Ideas: Human Rights Policies in the United States and Western Europe, in IDEAS AND FOREIGN POLICY: BELIEFS, INSTITUTIONS, AND POLITICAL CHANGE 139 ( Judith Goldstein and Robert O. Keohane eds., 1993);
106. Kathryn Sikkink, Human Rights, Principled Issue-Networks, and Sovereignty in Latin America, 47 INT'LORG. 411 (1993);
107. KLOTZ, supra note 30; Audie Klotz, Transnational Activism and Global Transformations: The Anti-apartheid and Abolitionist Experiences,8EUR. J. INT'L REL. 49 (2002).
108. SeeTOWNS, supra note 31; Ann Towns, Norms and Social Hierarchies: Understanding International Policy Diffusion "from Below," 66 INT'L ORG. (forthcoming 2012);
109. Carol Miller, Women in International Relations? The Debate in Inter-war Britain, in GENDER AND INTERNATIONAL RELATIONS 64 (Rebecca Grant & Kathleen Newland eds., 1991);
110. Carol Miller, "Geneva-the Key to Equality": Inter-war Feminists and the League of Nations, 3WOMEN'S HIST. REV. 219 (1994);
111. DEBORAH STIENSTRA, WOMEN'S MOVEMENTS AND INTERNATIONAL ORGANISATIONS (1994);
112. SANDRAWHITWORTH, FEMINISM AND INTERNATIONAL RELATIONS: TOWARDS A POLITICAL ECONOMY OF GENDER IN INTERSTATE AND NON-GOVERNMENTAL INSTITUTIONS (1994);
113. NITZA BERKOVITCH, FROM MOTHERHOOD TO CITIZENSHIP. WOMEN'S RIGHTS AND INTERNATIONAL ORGANIZATIONS (1999);
114. Bob Reinalda, The International Women's Movement as a Private Political Actor Between Accommodation and Change, in PRIVATE ORGANIZATIONS IN GLOBAL POLITICS 165 (Karsten Ronit & Volker Schneider eds., 2000).
115. See Jeffrey T. Checkel, Norms, Institutions, and National Identity in Contemporary Europe, 43 INT'L STUD. Q. 83, 87 (1999) (defining cultural match as "a situation where the prescriptions embodied in an international norm are convergent with domestic norms," which are reflected in the legal system and bureaucratic agencies, and arguing that the mechanism of norm diffusion varies depending on the domestic structure);
116. Amy Gurowitz, Mobilizing International Norms: Domestic Actors, Immigrants, and the Japanese State, 51WORLD POL. 413, 415 (1999) (arguing that international norms have been crucial in causing changes in Japanese policy toward Korean migrant workers, both through legal action and activist pressure on governments);
117. Ellen L. Lutz&Kathryn Sikkink, InternationalHumanRightsLawand Practice in Latin America, 54INT'LORG. 633, 640 (2000) (finding that the number of international human rights norms incorporated into international and regional Latin American law significantly increased between the mid-1970s and 1990s);
118. J. C. Sharman, Power and Discourse in Policy Diffusion: Anti-Money Laundering in Developing States, 52 INT'L STUD.Q. 635, 636 (2008) (using survey and interview data to argue that the recent adoption of anti-money laundering policies by 170 states represents an example of international norm diffusion caused by "discursively mediated exercises of power," and not by coercion or learning);
119. DANIEL C. THOMAS, THE HELSINKI EFFECT: INTERNATIONAL NORMS, HUMAN RIGHTS, AND THE DEMISE OF COMMUNISM (2001).
120. Christine Ingebritsen,NormEntrepreneurs: Scandinavia's Role in World Politics, 37COOPERATION& CONFLICT 11 (2002).
121. Benjamin Brake&Peter J. Katzenstein, The Transnational Movement of American Procedural Law: Circulating Legal Norms and Practices (2011) (unpublished manuscript) (on file with authors) (challenging the conventional idea that legal norms tend to diffuse primarily across similar legal systems, and focusing, instead, on linguistic, conceptual, and epistemic mechanisms).
122. Ian Hurd, Legitimacy and Authority in International Politics, 53 INT'L ORG. 379 (1999);
123. Michael N. Barnett, Bringing in the New World Order: Liberalism, Legitimacy, and the United Nations, 49WORLD POL. 526 (1997) (book review);
124. ANDREEA DECIU RITIVOI, PAUL RICOEUR: TRADITION AND INNOVATION IN RHETORICAL THEORY (2006).
125. MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON (1977);
126. Michel Foucault, Two Lectures, in POWER/KNOWLEDGE: SELECTED INTERVIEWS AND OTHER WRITINGS 1972-1977 (Colin Gordon ed., Leo Marshall, John Merpham & Kate Soper trans., 1980);
127. MICHEL FOUCAULT, Politics and Ethics, in THE FOUCAULT READER (Paul Rabinow ed., 1984). We thank Ann Towns for making this point.
128. POWER IN GLOBAL GOVERNANCE 3 (Michael Barnett & Raymond Duvall eds., 2005) (referring to this process as productive power, or "the socially diffuse production of subjectivity in systems of meaning and signification");
129. Helen M. Kinsella, Securing the Civilian: Sex and Gender in the Laws of War, in POWER IN GLOBAL GOVERNANCE, supra, at 31 (arguing that the categories of combatant and civilian embodied in the Geneva Convention are "dependent upon discourses of gender that naturalize sex and sex difference");
130. Kai Alderson, Making Sense of State Socialization, 27 REV. INT'L STUD. 415 (2001) (exploring from a theoretical perspective how changes in beliefs, political pressure, and institutionalization help explain the process of state socialization).
131. See Christian Reus-Smit, The Politics of International Law, in THE POLITICS OF INTERNATIONAL LAW 14, 36 (Christian Reus-Smit ed., 2004) (arguing that institutions are "created by political actors as structuring or ordering devices, as mechanisms for framing politics in ways that enshrine predominant notions of legitimate agency, stabilise individual and collective purposes, and facilitate the pursuit of instrumental goals").
132. See Antje Wiener, Contested Compliance: Interventions on the Normative Structure of World Politics, 10 EUR. J. INT'L REL. 189, 190 (2004) (arguing that a "reflexive" understanding of law helps explain how social practice changes the normative structure of law);
133. see also Antje Wiener, Contested Meanings of Norms: A Research Framework, 5 COMP. EUR. POL. 1 (2007).
134. SeeMICHAEL BARNETT&MARTHA FINNEMORE, RULES FOR THEWORLD: INTERNATIONAL ORGANIZATIONS IN GLOBAL POLITICS 6 (2004) (arguing that international organizations have authority in part because they "orient action and create social reality").
135. SeeFRIEDRICH V. KRATOCHWIL, RULESNORMS, ANDDECISIONS: ON THE CONDITIONS OF PRACTICAL AND LEGAL REASONING IN INTERNATIONAL RELATIONS AND DOMESTIC AFFAIRS (1989) (focusing on the style of legal argumentation and the role of legal norms in decision making-including how they help reduce uncertainty in contracting).
136. NETA C. CRAWFORD, ARGUMENT AND CHANGE IN WORLD POLITICS: ETHICS, DECOLONIZATION, AND HUMANITARIAN INTERVENTION (2002);
137. Thomas Risse, "Let's Argue!": Communicative Action in World Politics, 54 INT'LORG. 1, 2 (2000) (claiming that arguing creates common knowledge about both the rules of the game and the definition of the situation, and that it allows actors to seek an optimal solution and common normative framework);
138. Henry Farrell, Constructing the International Foundations of E-Commerce-The EU-U.S. Safe Harbor Arrangement, 57 INT'LORG. 277 (2003) (examining the preference-changing effects of persuasion);
139. Nicole Deitelhoff, The Discursive Process of Legalization: Charting Islands of Persuasion in the ICC Case, 63 INT'L ORG. 33, 35 (2009) (arguing that states' willingness to give up sovereignty to the International Criminal Court resulted from persuasion during negotiations that caused states' interests to change).
140. See Ronald R. Krebs & Jennifer K. Lobasz, Fixing the Meaning of 9/11: Hegemony, Coercion, and the Road to War in Iraq, 16 SECURITY STUD. 409 (2007) (focusing on the role of argumentation in the lead-up to the U.S. invasion of Iraq, arguing that the Bush administration used the so-called war on terror as a means of legitimizing the use of force). Although not focused on international law explicitly, this line of argument affected the context in which international legal norms were interpreted and adjusted, whereas inconvenient norms were ignored or explained away as irrelevant.
141. Jeffrey T. Checkel, Why Comply? Social Learning and European Identity Change, 55 INT'L ORG. 553 (2001).
142. Rodger A. Payne, Persuasion, Frames and Norm Construction, 7 EUR. J. INT'L REL. 37, 39 (2001) (arguing that much of the constructivist literature focuses excessively on persuasion and framing, and overlooks the underlying social processes that determine the outcome of highly contested normative struggles);
143. Ronald R. Krebs &Patrick Thaddeus Jackson, Twisting Tongues and Twisting Arms: The Power of Political Rhetoric, 13 EUR. J. INT'L REL. 35, 36-37 (2007) (emphasizing the role of rhetoric but suggesting that others have been incorrect in focusing on its role in persuasion rather than coercion);
144. Christian Grobe, The Power of Words: Argumentative Persuasion in International Negotiations, 16EUR. J. INT'LREL. 5, 6 (2010) (bridging persuasion-based arguments through a focus on strategic bargaining found in the rational choice literature, arguing that rational actors will be receptive to persuasion or argumentation only when such communication provides new causal knowledge that helps alleviate uncertainty, and implying that bargaining positions change only because of changes in available information, rather than changes in preferences).
145. Ryan Goodman&Derek Jinks,Howto Influence States: Socialization and International Human Rights Law, 54 DUKE L.J. 621 (2005) (arguing that, although most theories attribute state compliance to coercion and persuasion, acculturation is a social mechanism that profoundly affects state behavior yet remains poorly understood).
146. IAN JOHNSTONE, THE POWER OF DELIBERATION: INTERNATIONAL LAW, POLITICS AND ORGANIZATIONS (2011) (arguing that the Security Council can address its deliberative deficit through a series of procedural reforms, based on a theory of deliberative democracy, that would be politically easier to achieve than other widely discussed reforms such as changes in membership).
147. IAN CLARK, LEGITIMACY IN INTERNATIONAL SOCIETY (2005).
148. Ward Thomas, Legitimacy in International Relations: Ten Propositions, in JUSTIFYING WAR? FROM HUMANITARIAN INTERVENTION TO COUNTERTERRORISM (Gilles Andréani & Pierre Hassner eds., 2008) (exploring with anecdotal evidence a variety of issues related to the sources and effects of international legitimacy, including the role of international organizations, and noting that no single mechanism or institution has a monopoly on conferring legitimacy).
149. On the role of Security Council decisions as focal points, rather than authoritative moral statements, see Erik Voeten, The Political Origins of the UN Security Council's Ability to Legitimize the Use of Force, 59 INT'L ORG. 527 (2005).
150. See Martha Finnemore, Legitimacy, Hypocrisy, and the Social Structure of Unipolarity: Why Being a Unipole Isn't All It's Cracked Up to Be, 61WORLD POL. 58 (2009) (arguing that legitimacy imposes significant limitations on power, even on that of a unipolar actor.)
151. MARGARET E. KECK & KATHRYN SIKKINK, ACTIVISTS BEYOND BORDERS: ADVOCACY NETWORKS IN INTERNATIONAL POLITICS (1998);
152. CHRISTIAN REUS-SMIT, AMERICAN POWER AND WORLD ORDER 4 (2004). Reus-Smit argues "that all political power is deeply embedded in webs of social exchange and mutual constitution; that stable political power . . . ultimately rests on legitimacy; and that institutions play a crucial role in sustaining such power."
153. Alastair Iain Johnston, Treating International Institutions as Social Environments, 45 INT'L STUD.Q. 487 (2001) (arguing that socialization also takes place, in part, through persuasion and social influence that inculcate pro-norm behavior by dispensing social rewards, such as status, and punishments, such as exclusion or shaming);
154. Anne Sisson Runyan, Women in the Neoliberal "Frame," in GENDER POLITICS IN GLOBAL GOVERNANCE 210 (Mary K. Meyer & Elisabeth Prügl eds., 1999);
155. Elisabeth Prügl, What Is a Worker? Gender, Global Restructuring, and the ILO Convention on Homework, in GENDER POLITICS IN GLOBAL GOVERNANCE, supra, at 197.
156. See David H. Bearce & Stacy Bondanella, Intergovernmental Organizations, Socialization, and Member-State Interest Convergence, 61 INT'LORG. 703 (2007). Some of the research on global administrative law points to similar observations about convergence but suggests different pathways.
157. Benedict Kingsbury, Nico Krisch&Richard B. Stewart, The Emergence of Global Administrative Law, 68L.&CONTEMP. PROBS., Summer/Autumn 2005, at 15.
158. See Liesbet Hooghe, Several Roads Lead to International Norms, But Few via International Socialization: A Case Study of the European Commission, 59 INT'L ORG. 861 (2005);
159. Judith Kelley, International Actors on the Domestic Scene: Membership Conditionality and Socialization by International Institutions, 58 INT'L ORG. 425 (2004).
160. See Jan Beyers, Multiple Embeddedness and Socialization in Europe: The Case of Council Officials, 59INT'LORG. 899 (2005).
161. A few legal scholars have also analyzed international cooperation by considering problem types rooted in game theory. See, e.g., GOLDSMITH & POSNER, supra note 1; ANDREW T. GUZMAN, HOW INTERNATIONAL LAW WORKS: A RATIONAL CHOICE THEORY (2008);
162. George Norman & Joel P. Trachtman, The Customary International Law Game, 99 AJIL 541 (2005);
163. William B. T. Mock, Game Theory, Signalling and International Legal Relations, 26 GEO. WASH. J. INT'L L. & ECON. 33 (1992);
164. Eric A. Posner & Alan O. Sykes, Optimal War and Jus Ad Bellum, 93GEO. L.J. 993 (2005);
165. Robert E. Scott&Paul B. Stephan, Self-Enforcing International Agreements and the Limits of Coercion, 2004WIS. L. REV. 551 (2004);
166. ROBERT E. SCOTT & PAUL B. STEPHAN, THE LIMITS OF LEVIATHAN: CONTRACT THEORY AND THE ENFORCEMENT OF INTERNATIONAL LAW (2006);
167. For a recent survey of international governance that includes attention to problem construction, see WHO GOVERNS THE GLOBE? (Deborah D. Avant, Martha Finnemore & Susan K. Sell eds., 2010).
168. See, e.g., Richard Price, A Genealogy of the Chemical Weapons Taboo, 49 INT'L ORG. 73 (1995). Price argues against scholars who claim that the nonuse of chemical weapons was rooted in their lack of utility or in the fear of reciprocity.Heshows, instead, that a norm against these weapons arose and that its stigma was a necessary condition for the emergence of tacit and formal agreements not to develop and deploy chemical weapons. In particular, chemical weapons came to be associated with poison, the use of which has been stigmatized in many cultures. Price's line of argument, though not directly focusing on legal obligations, helps explain how norms could influence customary international law and also formal legal obligations related to chemical weapons.
169. Ward Thomas, Norms and Security: The Case of International Assassination, 25 INT'L SECURITY, Summer 2000, at 105,121-22 (arguing that assassination is a form of interstate violence that is a potential competitor to large-scale war, that prohibiting it benefits the major powers (which are more likely to be able to deploy other forms of violence), and, in tracing the rise and development of this legal norm, that "the norm itself served a legitimizing function, reinforcing institutional changes by providing them with a normative foundation based on natural law principles of justice and honor");
170. WARD THOMAS, THE ETHICS OF DESTRUCTION: NORMS AND FORCE IN INTERNATIONAL RELATIONS (2001).
171. Nina Tannenwald, Stigmatizing the Bomb: Origins of the Nuclear Taboo, 29 INT'L SECURITY, Spring 2005, at 5. In tracing the evolution of the taboo against the use of nuclear weapons as a result of the global antinuclear weapons movement, Tannenwald identifies key forces in the rise of this norm-including social groups pressuring leaders to change state policy, rhetoric and diplomacy intended to delegitimize practices such as possessing nuclear weapons and threatening to them, and the visibility of state leaders who spoke against nuclear weapons for reasons of moral conscience or on the basis of particular cognitive assumptions. She argues, in particular, that this norm developed through actual practice-a process that, she suggests, confers a status to the norm akin to customary international law.
172. Nina Tannenwald, The Nuclear Taboo: The United States and the Normative Basis of Nuclear Non-use, 53 INT'L ORG. 433 (1999).
173. See also Jeffrey W. Legro, Culture and Preferences in the International Cooperation Two-Step, 90AM. POL. SCI. REV. 118 (1996). Focusing on the rise of norms during the interwar period to stigmatize submarine warfare, aerial bombing of nonmilitary targets, and chemical warfare, Legro argues that these stigmata affected state preferences, partially through changes in bureaucratic culture. He contrasts this argument with more conventional explanations rooted in strategic interaction or the balance of power. Legro uses similar lines of argument in addressing other issues.
174. Jeffrey W. Legro, Which Norms Matter? Revisiting the "Failure" of Internationalism, 51 INT'L ORG. 31 (1997);
175. JEFFREY W. LEGRO, RETHINKING THEWORLD: GREAT POWER STRATEGIES AND INTERNATIONAL ORDER (2005) (arguing that national ideas about how a state should interact with other states result in changes to both national identities and interests);
176. JEFFREY W. LEGRO, COOPERATION UNDER FIRE: ANGLOGERMAN RESTRAINT DURING WORLD WAR II (1995);
177. ANNE-MARIE SLAUGHTER, A NEW WORLD ORDER (2004);
178. Ryan Goodman&Derek Jinks, Toward an Institutional Theory of Sovereignty, 55 STAN. L. REV. 1749 (2003).
179. Alexander Wendt, Anarchy Is What States Make of It: The Social Construction of Power Politics, 46 INT'L ORG. 391 (1992).
180. More precisely, the strategic context usually begins with three questions: (1) Which parties stand to benefit from cooperation, and to what extent? (2) To what extent are the potential benefits from cooperation tangible or intangible? (3) Once an agreement is put in place, to what extent would actors have an incentive to violate it? On the relation between game theory and IR, see generally THOMAS C. SCHELLING, THE STRATEGY OF CONFLICT (1960).
181. For significant applications of game theory to IR, see, for example, James D. Fearon, Signaling Foreign Policy Interests: Tying Hands Versus Sinking Costs, 41 J. CONFLICT RESOL. 68 (1997);
182. Charles Lipson, Why Are Some International Agreements Informal? 45 INT'LORG. 495 (1991);
183. James D. Fearon, Bargaining, Enforcement, and International Cooperation, 52 INT'L ORG. 269 (1998);
184. Giovanni Maggi, The Role of Multilateral Institutions in International Trade Cooperation, 89 AM. ECON. REV. 190 (1999);
185. Kyle Bagwell & Robert W. Staiger, Domestic Policies, National Sovereignty, and International Economic Institutions, 116 Q. J. ECON. 519 (2001);
186. Michael J. Gilligan, Is There a Broader-Deeper Trade-Off in International Multilateral Agreements?, 58 INT'L ORG. 459 (2004).
187. Arthur A. Stein, Coordination and Collaboration: Regimes in an Anarchic World, 36 INT'L ORG. 299 (1982);
188. ROBERT AXELROD, THE EVOLUTION OF COOPERATION (1984);
189. Kenneth A. Oye, Explaining Cooperation Under Anarchy: Hypotheses and Strategies, in COOPERATION UNDER ANARCHY 1 (Kenneth A. Oye ed., 1986);
190. TODD SANDLER, GLOBAL COLLECTIVE ACTION (2004);
191. Moshe Hirsch, Game Theory, International Law, and Future Environmental Cooperation in the Middle East, 27 DENV. J. INT'L L. & POL'Y 75 (1998);
192. Brett Frischmann, A Dynamic Institutional Theory of International Law, 51BUFF. L. REV. 679 (2003);
193. see also Alexander Thompson, Applying Rational Choice Theory to International Law: The Promise and Pitfalls, 31 J. LEGAL STUD. 285 (2002) (a political scientist applying game-theoretic approaches directly to law).
194. Not all collective action problems are helpfully analyzed in terms of the prisoner's dilemma. Another game that scholars often use for analysis is the stag hunt, in which two mutually beneficial outcomes are available, but one is significantly more so than the other. While players in the stag hunt would prefer a more beneficial outcome, they will choose the safer, but less beneficial, outcome unless they can coordinate and both choose the better option. On the prisoner's dilemma, see generally WILLIAM POUNDSTONE, PRISONER'S DILEMMA (1992) (describing the intellectual history of this problem);
195. Hugh Ward, Game Theory and the Politics of the Global Commons, 37 J. CONFLICT RESOL. 203 (1993) (arguing that some issues concerning global common-pool resources can be analyzed as prisoners dilemmas);
196. Duncan Snidal, Coordination Versus Prisoners' Dilemma: Implications for International Cooperation and Regimes, 79AM. POL. SCI. REV. 923 (1985) (arguing that coordination problems will lead to different types of solutions than prisoner's dilemma problems).
197. Charles Lipson, International Cooperation in Economic and Security Affairs, 37 WORLD POL. 1 (1984);
198. John Hart & Vitaly Fedchenko, WMD Inspection and Verification Regimes: Political and Technical Challenges, in COMBATING WEAPONS OF MASS DESTRUCTION: THE FUTURE OF INTERNATIONAL NONPROLIFERATION POLICY 95 (Nathan E. Busch&Daniel H. Joyner eds., 2009) (arguing that verifiability of compliance is the key to effectiveness for arms control law). Several scholars have noted that technology often limits the ability of inspectors and technical secretariats to verify compliance.
199. See Robert W. Helm&Donald R. Westervelt, The New Test Ban Treaties: What Do They Mean? Where Do They Lead?, 1 INT'L SECURITY, Winter 1977, at 162;
200. Jonathan B. Tucker, Verifying the Chemical Weapons Ban: Missing Elements, 37 ARMS CONTROL TODAY, Jan./Feb. 2007, at 6.
201. Nearly all states, to different degrees, gain from policies that lower the barriers to trade and allow for a more efficient global economy. Most also face temptations, however, to erect trade barriers that protect their own industries- especially when the interest groups that benefit are well organized
202. Richard H. Steinberg, In the Shadow of Law or Power? Consensus-Based Bargaining and Outcomes in the GATT/WTO, 56 INT'LORG. 339 (2002);
203. Marc L. Busch, Overlapping Institutions, Forum Shopping, and Dispute Settlement in International Trade, 61 INT'L ORG. 735 (2007) (arguing that the potential for dispute resolution decisions that create long-term precedents affects state incentives to use the mechanisms in question);
204. Judith L. Goldstein, Douglas Rivers & Michael Tomz, Institutions in International Relations: Understanding the Effects of the GATTand theWTOon World Trade, 61 INT'LORG. 37 (2007);
205. Joanne Gowa&Soo Yeon Kim, An Exclusive Country Club: The Effects of theGATTon Trade, 1950-94, 57WORLD POL. 453, 459-62 (2005) (arguing that the institutional design of the General Agreement on Tariffs and Trade (GATT) provides the loopholes necessary for strong states to capture the majority of benefits from trade liberalization);
206. B. Peter Rosendorff&Helen V. Milner, The Optimal Design of International Trade Institutions: Uncertainty and Escape, 55 INT'LORG. 829 (2001) (arguing that flexibility is especially beneficial in the context of domestic uncertainty);
207. B. Peter Rosendorff, Stability and Rigidity: Politics and Design of theWTO's Dispute Settlement Procedure, 99 AM. POL. SCI. REV. 389 (2005).
208. See Alan O. Sykes, Constructive Unilateral Threats in International Commercial Relations: The Limited Case for Section 301, 23 L. & POL'Y INT'L BUS. 263 (1992);
209. Alan O. Sykes, "Mandatory" Retaliation for Breach of Trade Agreements: Some Thoughts on the Strategic Design of Section 301, 8 B.U. INT'L L.J. 301 (1990). Indeed, trade law and enforcement is an area where political scientists and legal scholars have already initiated many fruitful collaborations.
210. Andrew Guzman & Beth A. Simmons, To Settle or Empanel? An Empirical Analysis of Litigation and Settlement at the World Trade Organization, 31 J. LEGAL STUD. S205 (2002);
211. Andrew Guzman&Beth A. Simmons, Power Plays and Capacity Constraints: The Selection of Defendants in World Trade Organization Disputes, 34 J. LEGAL STUD. 557 (2005);
212. Marc Busch, Eric Reinhardt&Gregory Shaffer, Does Legal Capacity Matter?: Explaining Dispute Initiation and Antidumping Actions in theWTO(International Centre for Trade and Sustainable Development, Programme on Dispute Settlement, Issue Paper No. 4, 2008), at http://ictsd.org/downloads/ 2009/02/ legal-capacity1.pdf.
213. The hallmarks of a CPR are that it is difficult to exclude other players from using the resource, and when any player uses the resource, the amount left for others is diminished. This combination of factors has often led analysts to refer to the problem of CPR regulation as the tragedy of the commons. See Garrett Hardin, The Tragedy of the Commons, 162 SCI. 124 (1968). Most international fisheries, for example, are depleted because any fishermen or their states know that they can easily avoid inconvenient fishing regulations. Long ago, political scientist Arild Underdal referred in this context to the law of the least ambitious program and showed that, because some fishing nations know that restrictions are hard to enforce, efforts to set and manage fishing quotas are usually not effective in protecting fish.
214. ARILD UNDERDAL, THE POLITICS OF INTERNATIONAL FISHERIES MANAGEMENT: THE CASE OF THE NORTHEAST ATLANTIC 36 (1980).
215. For the law and economics of a variety of ocean-based CPRs and other cooperation problems, see Eric A. Posner & Alan O. Sykes, Economic Foundations of the Law of the Sea, 104 AJIL 569 (2010).
216. The term enforcement mechanism is often not used since the political sensitivities to enforcement are acute in most areas of international cooperation. For example, the Montreal Protocol on Substances That Deplete the Ozone Layer, 26 ILM 1550 (1987), includes a "multilateral consultative process."
217. David G. Victor, The Operation and Effectiveness of the Montreal Protocol's Non-compliance Procedure, in THE IMPLEMENTATION AND EFFECTIVENESS OF INTERNATIONAL ENVIRONMENTAL COMMITMENTS: THEORY AND PRACTICE 137 (David G. Victor, Kal Raustiala & Eugene Skolnikoff eds., 1998).
218. Some optimism is also found in the literature on "local" CPRs, which finds an abundance of effective collective action in local settings because the players are more likely to know each other, making it easier to monitor and punish defectors. See ELINOR OSTROM, GOVERNING THE COMMONS: THE EVOLUTION OF INSTITUTIONS FOR COLLECTIVE ACTION (1990);
219. Clark C. Gibson, John T. Williams&Elinor Ostrom, Local Enforcement and Better Forests, 33WORLDDEV. 273 (2005);
220. ELINOROSTROM, ROYGARDNER&JAMESWALKER, RULES,GAMES, AND COMMON-POOL RESOURCES (1994);
221. MICHAEL D.MCGINNIS, POLYCENTRICITY AND LOCAL PUBLIC ECONOMIES: READINGS FROM THE WORKSHOP IN POLITICAL THEORY AND POLICY ANALYSIS (1999);
222. LOCAL COMMONS AND GLOBAL INTERDEPENDENCE: HETEROGENEITY AND COOPERATION IN TWO DOMAINS (Robert O. Keohane & Elinor Ostrom eds., 1995).
223. That same logic suggests that the management of international common-pool resources will be more successful when the number of parties is smaller, as in the Interim Convention on Conservation of North Pacific Fur Seals, Feb. 9, 1957, 314 UNTS 105.
224. SCOTT BARRETT, ENVIRONMENT AND STATECRAFT: THE STRATEGY OF ENVIRONMENTAL TREATY-MAKING 19-48 (2003).
225. This solution has its origins in the insights of economist Ronald H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1 (1960).
226. Thomas Bernauer, Protecting the Rhine River Against Chloride Pollution, in INSTITUTIONS FORENVIRONMENTAL AID: PITFALLS AND PROMISE 201 (Robert O. Keohane & Marc A. Levy eds., 1996).
227. See generallyCONTROLLING IMMIGRATION:AGLOBAL PERSPECTIVE (Wayne A. Cornelius, Philip L. Martin & James Frank Hollifield eds., 1988);
228. GLOBAL MIGRATION GOVERNANCE (Alexander Betts ed., 2011);
229. DAVID LEWIS, CONVENTION: A PHILOSOPHICAL STUDY(1969);
230. David D. Laitin, The Tower of Babel as a Coordination Game: Political Linguistics in Ghana, 88 AM. POL. SCI. REV. 622 (1994). Other types of problems are also often considered to be self-enforcing. For example, when the actors interact repeatedly, reciprocity can emerge in cooperation problems with incentives to defect.
231. For example, a few political scientists have examined the process of setting technical standards within the WTO. When theWTOwas created, the task of negotiating trade-related standards was delegated to several international bodies-among them theWHO/FAOCodex Alimentarius Commission for food safety standards. In practice, the work of the Codex has become much more politicized now that its standards are more relevant, and even when Codexagreesonstandards, such asonthe use ofhormonesin beef, trade disputes still arise because important states violate the rules. See David G. Victor, Effective Multilateral Regulation of Industrial Activity (1997) (unpublished Ph.D. dissertation, Massachusetts Institute of Technology) (on file with authors);
232. TRANSATLANTIC GOVERNANCE IN THE GLOBALECONOMY(Mark A. Pollack&Gregory C. Shaffer eds. 2001);
233. WHAT'S THE BEEF?: THE CONTESTED GOVERNANCE OF EUROPEAN FOOD SAFETY (Christopher K. Ansell&David Vogel eds., 2006);
234. Tim Büthe, The Globalization of Health and Safety Standards: Delegation of Regulatory Authority in the SPS Agreement of the 1994 Agreement Establishing the World Trade Organization, 71 L. & CONTEMP. PROBS. 218 (2008).
235. See Stephen D. Krasner, Global Communications and National Power: Life on the Pareto Frontier, 43WORLD POL. 336 (1991);
236. Peter F. Cowhey, The International Telecommunications Regime: The Political Roots of International Regimes for High Technology, 44 INT'L ORG. 169 (1990).
237. See EMILIE M. HAFNER-BURTON, FORCED TO BE GOOD: WHY TRADE AGREEMENTS BOOST HUMAN RIGHTS (2009).
238. C. M. Chinkin, The Challenge of Soft Law: Development and Change in International Law, 38 INT'L&COMP. L.Q. 850 (1989);
239. Prosper Weil, Towards Relative Normativity in International Law?, 77 AJIL 413 (1983).
240. See, e.g., Eric A. Posner & John C. Yoo, Judicial Independence in International Tribunals, 93 CAL. L. REV. 1 (2005) (arguing that when behavior is uncertain, a tribunal can provide the neutral information necessary to restore interstate cooperation).
241. Emilie M. Hafner-Burton & Kiyoteru Tsutsui, Justice Lost! The Failure of InternationalHumanRights Law to Matter Where Needed Most, 44 J. PEACE RES. 407 (2007).
242. Charles Lipson, International Cooperation in Economic and Security Affairs, 37 WORLD POL. 1 (1984) (arguing that arms control is faced with high costs of betrayal, monitoring problems, and the perception of strict competition, thus making cooperation unlikely);
243. Philip Alston, "Core Labour Standards" and the Transformation of the International Labour Rights Regime, 15 EUR. J. INT'L L. 457 (2004);
244. John Gerard Ruggie, Business and Human Rights: The Evolving International Agenda, 101 AJIL 819 (2007);
245. Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 YALE L.J. 443 (2001);
246. David Weissbrodt & Muria Kruger, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, 97 AJIL 901 (2003).
247. NEIL J. MITCHELL. AGENTS OF ATROCITY: LEADERS, FOLLOWERS, AND THE VIOLATION OF HUMAN RIGHTS IN CIVIL WAR (2004).
248. Richard A. Bitzinger, The Globalization of the Arms Industry: The Next Proliferation Challenge, 19 INT'L SECURITY, Autumn 1994, at 170;
249. James Cockayne, Regulating Private Military and Security Companies: The Content, Negotiation, Weaknesses and Promise of the Montreux Document, 13 J. CONFLICT & SECURITY L. 401 (2008);
250. Sarah V. Percy, Mercenaries: Strong Norm, Weak Law, 61 INT'L ORG. 367 (2007).
251. See EDWARD L. MILES, ARILD UNDERDAL, STEINAR ANDRESEN & JORGEN WETTESTAD, ENVIRONMENTAL REGIME EFFECTIVENESS: CONFRONTING THEORY WITH EVIDENCE (2001) (arguing that problemsolving capacity is a function of three main determinants: the institutional setting, the distribution of power among the actors involved, and the skill and energy available for the political engineering of cooperative solutions);
252. LOCAL COMMONS AND GLOBAL INTERDEPENDENCE: HETEROGENEITY AND COOPERATION IN TWO DOMAINS (Robert O. Keohane & Elinor Ostrom eds., 1995) (arguing that heterogeneity in actor capabilities in both the local and global domains has a large effect on the prospects for cooperation).
253. For example, the original strategic arms control talks focused on numbers of missiles because those were easier to measure than actual warheads, but technological changes (in part spurred by the existence of arms control treaties) encouraged the United States and Soviet Union to develop multiple independently targetable reentry vehicles (MIRVs). Those kinds of changes in technology made both sides wary about making promises to regulate their arms and made it harder to convince skeptical domestic audiences that arms control would improve national security. See TED GREENWOOD, MAKING THE MIRV: A STUDY OF DEFENSE DECISIONMAKING (1975);
254. Thomas C. Schelling, What Went Wrong with Arms Control?, 64FOREIGN AFF. 219 (1985);
255. Herbert F. York, ABM, MIRV and the Arms Race, 169 SCI. 257 (1970);
256. Steven E. Miller, Politics over Promise: Domestic Impediments to Arms Control, 8 INT'L SECURITY, Spring 1984, at 67.
257. See DAVID G. VICTOR, THE COLLAPSE OF THE KYOTO PROTOCOL AND THE STRUGGLE TO SLOW GLOBALWARMING (2001);
258. Jana von Stein, The International Law and Politics of Climate Change: Ratification of the United Nations Framework Convention and the Kyoto Protocol, 52 J. CONFLICT RESOL. 243 (2008);
259. William A. Pizer, The Optimal Choice of Climate Change Policy in the Presence of Uncertainty, 21 RESOURCE & ENERGY ECON. 255 (1999).
260. See Barbara Koremenos, Charles Lipson & Duncan Snidal, The Rational Design of International Institutions, 55 INT'L ORG. 761 (2001).
261. See Andrew Moravcsik, Taking Preferences Seriously: A Liberal Theory of International Politics, 51 INT'LORG. 513, 514 (1997);
262. Alexander Thompson, Coercion Through IOs: The Security Council and the Logic of Information Transmission, 60 INT'L ORG. 1 (2006).
263. Andrew Kydd, Trust Building, Trust Breaking: The Dilemma of NATO Enlargement, 55 INT'L ORG. 801 (2001);
264. James D. Morrow, The Institutional Features of the Prisoners of War Treaties, 55 INT'LORG. 971 (2001);
265. Lisa Martin, Interests, Power, and Multilateralism, 46 INT'LORG. 765 (1992).Wenote, however, that some scholars suggest the opposite-namely, that ignorance about exactly how the world will unfold, including the preferences of key states, could make it easier for states to establish institutions that would, in turn, stabilize norms and expectations.
266. ORAN R. YOUNG, INTERNATIONAL COOPERATION: BUILDING REGIMES FOR NATURAL RESOURCES AND THE ENVIRONMENT (1989);
267. ORAN R. YOUNG, COMPLIANCE AND PUBLIC AUTHORITY: A THEORY WITH INTERNATIONAL APPLICATIONS (1979);
268. Joel Sobel, A Theory of Credibility, 52 REV. ECON. STUD. 557, 570 (1985) ("Long-term arrangements are of value when there is uncertainty about preferences because past transactions provide relevant information to agents.").
269. Howthese attributes of problems affect the choice of policy mechanism is a question that has been at the forefront of many disciplines-not just political science, but also economics and law. For a review, see Jonathan B. Wiener& Barak D. Richman, Mechanism Choice, in RESEARCHHANDBOOK ON PUBLICCHOICE AND PUBLIC LAW 363 (Daniel A. Farber&Anne Joseph O'Connell eds., 2010) (reviewing literature from multiple disciplines on the political economy of regulatory-instrument choice at the national and international levels). One sign of the central role of transaction costs in the study of contracting is that, in a major stocktaking of research on collective action at the local and global domains, two leaders in the study of IR and common-pool resources identified transaction costs as one area where scholars agreed both that the topic was important and that much of what mattered for research had already been extensively studied.
270. BRINGING TRANSNATIONAL RELATIONS BACK IN: NON-STATE ACTORS,DOMESTIC STRUCTURES AND INTERNATIONAL INSTITUTIONS (Thomas Risse-Kappen ed., 1995) (including essays analyzing how domestic social movements, private actors, and political institutions affect IR);
271. Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 INT'L ORG. 427 (1988);
272. DOUBLE-EDGED DIPLOMACY: INTERNATIONAL BARGAINING AND DOMESTIC POLITICS (Peter B. Evans, Harold K. Jacobson & Robert D. Putnam eds., 1993). These studies build on Thomas Schelling's famous conjecture that actors constrained by third parties will fare better in bargaining situations.
273. HELEN V.MILNER, INTERESTS, INSTITUTIONS,ANDINFORMATION:DOMESTIC POLITICSANDINTERNATIONAL RELATIONS (1997);
274. Peter Gourevitch, The Second Image Reversed: The International Sources of Domestic Politics, 32 INT'LORG. 881 (1978);
275. LISA L.MARTIN, DEMOCRATIC COMMITMENTS: LEGISLATURES AND INTERNATIONAL COOPERATION (2000);
276. Jon C. Pevehouse, Democracy from the Outside-In? International Organizations and Democratization, 56INT'LORG. 515 (2002);
277. Edward D. Mansfield&Jon C. Pevehouse, Democratization and the Varieties of International Organizations, 52. J. CONFLICT RESOL. 269 (2008).
278. See Gene M. Grossman & Elhanan Helpman, Protection for Sale, 84 AM. ECON. REV. 833 (1994).
279. See Brett Ashley Leeds, Domestic Political Institutions, Credible Commitments, and International Cooperation, 43 AM. J. POL. SCI. 979 (1999) (finding that democratic states or autocratic states are more likely to cooperate with other states in the same category than in mixed combinations);
280. Beth. A. Simmons, International Law and State Behavior: Commitment and Compliance in International Monetary Affairs, 94AM.POL. SCI.REV. 819 (2000) (examining extent to which domestic factors, including rule of law and electoral democracy, shape reputation for fulfilling commitments);
281. Fiona McGillivray & Alastair Smith, Trust and Cooperation Through Agent-Specific Punishments, 54 INT'LORG. 809 (2000) (using game-theoretic model to explore when democratic leaders accountable to their own people are more likely to cooperate);
282. Michael W. Doyle & Geoffrey S. Carlson, Silence of the Laws? Conceptions of International Relations and International Law in Hobbes, Kant & Locke, 46 COLUM. J. TRANSNAT'L L. 648 (2008) (surveying recent literature on whether democratic states are more likely than other regime types to choose their commitments carefully and to live up to the ones that they have accepted);
283. Emilia Justyna Powell &Sara McLaughlin Mitchell, The International Court of Justice and the World's Three Legal Systems, 69 J. POL. 397, 407-11 (2007) (examining democracy as potentially correlated with willingness to undertake and maintain commitments, in context of studying whether civil law, common law, or Islamic law states are relatively more likely to accept ICJ jurisdiction).
284. Kurt Taylor Gaubatz, Democratic States and Commitment in International Relations, 50 INT'L ORG. 109 (1996);
285. Edward D. Mansfield, Helen V. Milner&B. Peter Rosendorff, Why Democracies Cooperate More: Electoral Control and International Trade Agreements, 56 INT'L ORG. 477 (2002);
286. XINYUAN DAI, INTERNATIONAL INSTITUTIONS AND NATIONAL POLICIES (2007).
287. Steven C. Poe, C. Neal Tate&Linda Camp Keith, Repression of the Human Right to Personal Integrity Revisited: A Global, Cross-national Study Covering the Years 1976-1993, 43 INT'L STUD Q. 291 (1999).
288. Emilia Justyna Powell & Jeffrey K. Staton, Domestic Judicial Institutions and Human Rights Treaty Violation, 53 INT'L STUD.Q. 149, 150-51 (2009) (arguing that understanding the effectiveness of domestic judicial institutions is the key to understanding how domestic institutions, treaty ratification, and treaty compliance are related);
289. Yonatan Lupu, Best Evidence: The Role of Information in Domestic Judicial Enforcement of InternationalHumanRights Agreements (Aug. 26, 2011), at http://papers.ssrn.com/sol3/papers.cfm?abstract-id-1876728 (arguing that enforcement of international human rights law by independent domestic courts is effective only for violations subject to low evidence-production costs and low legal standards of proof).
290. Andrew Moravcsik, The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe, 54 INTLORG. 217 (2000);
291. JON C. PEVEHOUSE,DEMOCRACY FROM ABOVE: REGIONALORGANIZATIONS AND DEMOCRATIZATION (2005);
292. Emilie Marie Hafner-Burton, Jon Pevehouse & Edward Mansfield, Human Rights Institutions, Sovereignty Costs, and Democratization (2009), at http://papers.ssrn.com/sol3/papers.cfm?abstract-id-1450445.
293. For a similar argument about the effect of international commitments in constraining domestic politics in trade, see Judith Goldstein, International Law and Domestic Institutions: Reconciling North American "Unfair" Trade Laws, 50 INT'L ORG. 541 (1996).
294. Notably, see Richard H. Steinberg, International Trade Law as a Mechanism for State Transformation (2011) (unpublished manuscript) (on file with authors).
295. Barbara Koremenos, Contracting Around International Uncertainty, 99 AM. POL. SCI. REV. 549 (2005). The particular term rational design is barely a decade old. As represented in international law, this type of analysis has a much older pedigree.
296. See Kenneth W. Abbott, Robert O. Keohane, Andrew Moravcsik, Anne-Marie Slaughter&Duncan Snidal, The Concept of Legalization, 54 INT'L ORG. 401 (2000).
297. See, e.g., Anthony Aust, The Theory and Practice of Informal International Instruments, 35 INT'L&COMP. L.Q. 787 (1986);
298. Hartmut Hillgenberg, A Fresh Look at Soft Law, 10EUR. J. INT'L L. 499 (1999);
299. COMMITMENT AND COMPLIANCE: THE ROLE OF NON-BINDING NORMS IN THE INTERNATIONAL LEGAL SYSTEM (Dinah Shelton ed., 2000);
300. Daniel E. Ho, Compliance and International Soft Law: Why Do Countries Implement the Basle Accord?, 5 J. INT'L ECON. L. 647 (2002);
301. Dinah Shelton, Normative Hierarchy in International Law, 100 AJIL 291 (2006).
302. For earlier arguments along these lines, see, for example, Oscar Schachter, The Twilight Existence of Nonbinding International Agreements, 71 AJIL 296 (1977)
303. For a similar argument, see George W. Downs, Kyle W. Danish & Peter N. Barsoom, The Transformational Model of International Regime Design: Triumph of Hope or Experience?, 38 COLUM. J. TRANSNAT'L L. 465 (2000).
304. Paul L. Joskow, Contract Duration and Relationship-Specific Investments: Empirical Evidence from Coal Markets, 77 AM. ECON. REV. 168 (1987).
305. Kenneth W. Abbott & Duncan Snidal, Hard and Soft Law in International Governance, 54 INT'L ORG. 421 (2000).
306. For an application to the problem of climate change, along with a review of the environmental literature on binding versus nonbinding agreements, see DAVID G. VICTOR, GLOBAL WARMING GRIDLOCK: CREATING MORE EFFECTIVE STRATEGIES FOR PROTECTING THE PLANET (2011).
307. Kal Raustiala, Form and Substance in International Agreements, 99 AJIL 581 (2005);
308. ENGAGING COUNTRIES: STRENGTHENING COMPLIANCE WITH INTERNATIONAL ENVIRONMENTAL ACCORDS (Edith Brown Weiss & Harold K. Jacobson eds., 2000).
309. For similar arguments, see Donald G Brennan, A Comprehensive Test Ban: Everybody or Nobody, 1 INT'L SECURITY, Summer 1976, at 92
310. Joseph S. Nye, Maintaining a Nonproliferation Regime, 35 INT'L ORG. 15 (1981).
311. Jules Lobel & Michael Ratner, Bypassing the Security Council: Ambiguous Authorizations to Use of Force, Cease-Fires and the Iraqi Inspection Regime, 93 AJIL 124 (1999).
312. See Judith Goldstein & Lisa Martin, Legalization, Trade Liberalization, and Domestic Politics: A Cautionary Note, 54 INT'L ORG. 603 (2000).
313. See Jeffrey Kucik&Eric Reinhardt, Does Flexibility Promote Cooperation? An Application to the Global Trade Regime, 62 INT'L ORG. 477 (2008).
314. See James McCall Smith, The Politics of Dispute Settlement Design: Explaining Legalism in Regional Trade Pacts, 54 INT'L ORG. 137 (2000).
315. See generally DELEGATION AND AGENCY IN INTERNATIONAL ORGANIZATIONS (Darren G. Hawkins, David A. Lake., Daniel L. Nielson&Michael J. Tierney eds., 2006);
316. Kenneth W. Abbott&Duncan Snidal, Why States Act Through Formal International Organizations, 42 J. CONFLICT RESOL. 3 (1998);
317. Richard H. Steinberg, In the Shadow of Law or Power? Consensus-Based Bargaining and Outcomes in the GATT/WTO, 56 INT'LORG. 339 (2001);
318. Richard H. Steinberg, Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints, 98 AJIL 247 (2004).
319. Robert O. Keohane, Andrew Moravcsik & Anne-Marie Slaughter, Legalized Dispute Resolution: Interstate and Transnational, 54 INT'LORG. 457 (2000) (discussing three dimensions of delegation to international judicial institutions).
320. Laurence Helfer & Anne-Marie Slaughter, Why States Create International Tribunals: A Response to Professors Posner and Yoo, 93CAL. L. REV. 899 (2005) (arguing that independent courts are more effective, in part because they enhance the credibility of state commitments).
321. EDWARD PARSON, PROTECTING THEOZONE LAYER: SCIENCE AND STRATEGY (2003).
322. For a recent assessment, seeDAVID G.VICTOR, GRIDLOCK ON GLOBAL WARMING: CREATING MORE EFFECTIVE STRATEGIES FOR PROTECTING THE PLANET 203-40 (2011).
323. Robert O. Keohane & Lisa L. Martin, The Promise of Institutionalist Theory, 20 INT'L SECURITY, Summer 1995, at 39.
324. The beneficiaries of this delegation, known by the awkward term principal, must find ways to entice the agent to do business reliably. On principal-agent relationships in politics, see generally Mathew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 AM. J. POL. SCI. 165 (1984);
325. D. RODERICK KIEWIET & MATHEW D. MCCUBBINS, THE LOGIC OF DELEGATION: CONGRESSIONAL PARTIES AND THE APPROPRIATIONS PROCESSS (1991);
326. Gary J. Miller, The Political Evolution of Principal- Agent Models,8ANN. REV. POL. SCI. 203 (2005). As delegation rises, so must attention to monitoring and control of agents.
327. Giandomenico Majone, Two Logics of Delegation: Agency and Fiduciary Relations in EU Governance, 2 EUR. UNION POL. 103 (2001).
328. Finn E. Kydland & Edward C. Prescott, Rules Rather than Discretion: The Inconsistency of Optimal Plans, 85 J. POL. ECON. 473 (1977);
329. Avner Greif, Paul Milgrom & Barry Weingast, Coordination, Commitment, and Enforcement: The Case of the Merchant Guild, 102 J. POL. ECON. 745 (1994);
330. Robert J. Barro&David B. Gordon, Rules, Discretion and Reputation in a Model of Monetary Policy, 12 J. MONETARY ECON. 101 (1983).
331. RANDALL W. STONE, LENDING CREDIBILITY: THE INTERNATIONAL MONETARY FUND AND THE POST-COMMUNIST TRANSITION (2002).
332. BETH A. SIMMONS, MOBILIZING FOR HUMAN RIGHTS: INTERNATIONAL LAW IN DOMESTIC POLITICS (2009).
333. Eyal Benvenisti & George W. Downs, National Courts, Domestic Democracy, and the Evolution of International Law, 20 EUR. J. INT'L L. 59 (2009);
334. Eyal Benvenisti&George W. Downs, Court Cooperation, Executive Accountability, and Global Governance, 41 N.Y.U. J. INT'LL.&POL'Y 931 (2009);
335. Karen J. Alter&Laurence R. Helfer, Nature or Nurture? Judicial Lawmaking in the European Court of Justice and the Andean Tribunal of Justice, 64 INT'L ORG. 563 (2010).
336. See, e.g., Markus Ehrmann, Procedures of Compliance Control in International Environmental Treaties, 13 COLO. J. INT'L ENVTL. L. & POL'Y 377, 402 (2002) (arguing "that the final aim of the [Montreal] Protocol can only be achieved with a universal membership");
337. Jack M. Beard, The Shortcomings of Indeterminacy in Arms Control Regimes: The Case of the Biological Weapons Convention, 101 AJIL 271, 309 (2007) (arguing that to "advance the complete elimination of a class or type of weapon, multinational disarmament regimes strive to achieve universal membership and attract nonstate parties that are acting in conformity with the regime's obligations");
338. Arsalan M. Suleman, Bargaining in the Shadow of Violence: The NPT, IAEA, and Nuclear Non-proliferation Negotiations, 26 BERKELEY J. INT'L L. 206, 229 (2008) (arguing, with respect to the NPT, that the "lack of universal membership, particularly with regard to the four of nine states that possess nuclear weapons, and the system's lack of symmetry between its goals and its oversight, monitoring, and implementation mechanisms are two serious shortfalls in need of significant attention").
339. See Laurence R. Helfer, Nonconsensual International Lawmaking, 2008 U. ILL. L. REV. 71, 86 (noting that in "the six decades since the Second World War, global and regional human rights treaties have, for the most part, overcome international law's participation deficit. Many of these treaties now have large numbers of states parties, with a few agreements approaching universal membership.").
340. On small groups and clubs, seeMANCUROLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLICGOODS AND THE THEORY OF GROUPS (1965).
341. For applications to international cooperation, see David G. Victor, How to Slow Global Warming, 349 NATURE 451 (1991);
342. Robert O. Keohane & Joseph S. Nye Jr., The Club Model of Multilateral Cooperation and Problems of Democratic Legitimacy, in EFFICIENCY, EQUITY, AND LEGITIMACY: THE MULTILATERAL TRADING SYSTEM AT THEMILLENNIUM 264 (Robert B. Porter Pierre Sauvé, Arvind Subramanian & Americo Beviglia Zampetti eds., 2001);
343. and Miles Kahler, Multilateralism with Small and Large Numbers, 46 INT'L ORG. 681 (1992).
344. But see PETER M. HAAS, SAVING THE MEDITERRANEAN: THE POLITICS OF INTERNATIONAL ENVIRONMENTAL COOPERATION (1990) (on the case of the Mediterranean Action Plan, arguing that large membership made the institution more effective from the outset).
345. See Emilie M. Hafner-Burton, Trading Human Rights: How Preferential Trade Agreements Influence Government Repression, 59 INT'L ORG. 593 (2005). For example, the European Union is able to improve the behavior of prospective member states with initially low human rights compliance by making entry contingent upon efforts to uphold the thirteen protocols of the European Convention on Human Rights.
346. See Pamela A. Jordan, Does Membership Have Its Privileges?: Entrance into the Council of Europe and Compliance with Human Rights Norms, 25HUM. RTS.Q. 660 (2003). Moreover, some scholars have looked at the dynamic influence of membership, showing that certain transitional states that sign universal human rights agreements without intending to comply are sometimes later induced to comply. See SIMMONS, supra note 162.
347. See Rosendorff&Milner, supra note 83. A few legal scholars have also examined the ways in which domestic politics influence international trade law negotiations. See, e.g., Alan O. Sykes, Regulatory Protectionism and the Law of International Trade, 66 U. CHI. L. REV. 1 (1999);
348. Warren F. Schwartz & Alan O. Sykes, The Economics of the Most Favored Nation Clause, in ECONOMIC DIMENSIONS IN INTERNATIONAL LAW: COMPARATIVE AND EMPIRICAL PERSPECTIVES 43 (Jagdeep S. Bhandari&Alan O. Sykes eds., 1997); Ernst-Ulrich Petersmann, Trade Policy as a Constitutional Problem: On the "Domestic Policy Functions" of International Trade Rules, 41 AUSSENWIRTSCHAFT 405 (1986)
349. reprinted in 1 THE WORLD TRADING SYSTEM: CRITICAL PERSPECTIVES ON THE WORLD ECONOMY 121 (Robert Howse ed., 1998).
350. See Busch, supra note 83. Trade economists have examined similar questions about forum shopping, especially given that the WTO, which has nearly universal membership, must contend with the rise of many smaller regional free trade agreements. Most economics research sees those smaller agreements as diversionary and argues for strongerWTO oversight of those agreements. See, e.g., Jeffrey J. Schott, Free Trade Agreements: Boon or Bane of the World Trading System?, in FREETRADEAGREEMENTS:USSTRATEGIESANDPRIORITIES 3 ( Jeffrey J. Schott ed., 2004).
351. See, e.g., Elizabeth Warren, Bankruptcy Policy, 54 U. CHI. L. REV. 775 (1987).
352. See Rosalind Reeve, Wildlife Trade, Sanctions and Compliance: Lessons from the CITES Regime, 82 INT'L AFF. 881 (2006);
353. Peter H. Sand, Commodity or Taboo?: International Regulation of Trade in Endangered Species, inGREEN GLOBE YEARBOOK OF INTERNATIONAL CO-OPERATION ON ENVIRONMENT ANDDEVELOPMENT 19 (Helge Ole Bergesen & Georg Parmann eds., 1997);
354. ROBERT L. FREIDHEIM, TOWARD A SUSTAINABLE WHALING REGIME (2001);
355. POLAR POLITICS: CREATING INTERNATIONAL ENVIRONMENTAL REGIMES (Oran R. Young & Gail Osherenko eds., 1993).
356. See Robert O. Keohane, Governance and Legitimacy, Keynote Speech at the Opening Conference of the Research Center (SFB) 700, Freie Universität Berlin (Feb. 23, 2007) (with comments by Fritz W. Scharpf ), at http://www.sfb-governance.de/en/publikationen/sfbgov-ls/index.html;
357. Daniel C. Esty, Good Governance at the Supranational Scale: Globalizing Administrative Law, 115 YALE L.J. 1490 (2006).
358. See Kenneth W. Abbott, "Trust but Verify": The Production of Information in Arms Control Treaties and Other International Agreements, 26CORNELL INT'L L.J. 1 (1993). Because governments are acutely concerned about survival, it is uncommon for arms control agreements to incorporate flexibility measures such as opt-out procedures, derogations, and such, lest other parties use them to undercut the agreement's effectiveness. Instead, much of the experience with flexibility arises through interpretation of agreements, imperfect enforcement, and ultimately through membership.
359. See Chamundeeswari Kuppuswamy, Is the Nuclear Non-proliferation Treaty Shaking at Its Foundations? Stock Taking After the 2005 NPT Review Conference, 11 J. CONFLICT & SECURITY L. 141 (2006).
360. See, for example, the legal research by Joan Fitzpatrick in States of Emergency in the Inter American Human Rights System, in THE INTER-AMERICAN SYSTEM OF HUMAN RIGHTS 371 (David J. Harris & Stephen Livingstone eds., 1998)
361. by Jaime Oraá in HUMAN RIGHTS IN STATES OF EMERGENCY IN INTERNATIONAL LAW (1992)
362. by Dominic McGoldrick in The Interface Between Public Emergency Powers and International Law, 2 INT'L J.CONST. L. 430 (2004)
363. and by Oren Gross and Fionnuala N?́ Aoláin inLAW IN TIMES OFCRISIS: EMERGENCY POWERS INTHEORY AND PRACTICE (2006). New empirical political science research shows that most derogating states are stable democracies.
364. See, e.g., Emilie M. Hafner-Burton, Laurence R. Helfer&Christopher J. Fariss, Emergency and Escape: Explaining Derogations from Human Rights Treaties, 65 INT'LORG. 673 (2011). That conclusion is consistent with the fact that democracies are more likely than other regimes to file reservations when they join human rights treaties.
365. See Eric Neumayer, Do International Human Rights Treaties Improve Respect for Human Rights?, 49 J.CONFLICTRESOL. 925 (2005). States use these flexibility tools to respond to domestic political uncertainty. Derogations enable some governments facing threats at home to buy time and legal breathing space to confront crises while, at the same time, signaling to concerned domestic audiences that rights suspensions are temporary and lawful. For a legal perspective on denunciations, see Helfer, supra note 1, and
366. Laurence R. Helfer, Exiting Treaties, 91 VA. L. REV. 1579 (2005). Even so, the use of derogations is hardly perfect, not the least because nondemocratic states can derogate freely without incurring real costs. Likewise, during emergencies, autocracies increase violations of most rights covered by human rights treaties.
367. Eric Neumayer, Do Governments Mean Business When They Derogate? Human Rights Violations During Declared States of Emergency (Sept. 2011) (unpublished manuscript), available at http://www2.lse.ac.uk/geographyAndEnvironment/whosWho/ profiles/neumayer/pdf/ Derogations.pdf. What these writings suggest is that derogations clauses and other treaty flexibility tools need to be redesigned in ways that enhance, rather than undermine, compliance with international law.
368. See Jeffrey Kucik&Eric Reinhardt, Does Flexibility Promote Cooperation? An Application to the Global Trade Regime, 62 INT'LORG. 477 (2008). So far, little research has compared the types of flexibility systems across types of agreements-a topic to which we return in part V of this article.
369. Many legal scholars stress the potential for abuse of escape clauses. In the area of human rights, for example, scholars argue that derogations can undermine the raison d'être of human rights treaties and should be subject to strict international standards and monitoring mechanisms. See, e.g., SARAH JOSEPH, JENNY SCHULTZ&MELISSA CASTAN, THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS: CASES, MATERIALS AND COMMENTARY 824 (2d ed. 2005);
370. See Patrizio Merciai, Safeguard Measures in GATT, 15 J.WORLD TRADE 41 (1981);
371. J. David Richardson, Safeguards Issues in the Uruguay Round and Beyond, in ISSUES IN THEURUGUAY ROUND 24 (Robert E. Baldwin&J. David Richardson eds., 1988).
372. But see Warren F. Schwartz & Alan O. Sykes, The Economics of the Most Favored Nation Clause, in ECONOMIC DIMENSIONS IN INTERNATIONAL LAW 43 (Jagdeep S. Bhandari&Alan O. Sykes eds., 1997) (arguing thatWTOrules provide insufficient flexibility);
373. Alan O. Sykes, Protectionism as a "Safeguard": A Positive Analysis of the GATT "Escape Clause" with Normative Speculations, 58 U. CHI. L. REV. 255 (1991).
374. Notably, see the critique by Alexander Wendt, Driving with the Rearview Mirror: On the Rational Science of Institutional Design, 55 INT'L ORG. 1019 (2001).
375. See also John S. Duffield, The Limits of "Rational Design," 57 INT'LORG. 411 (2003) (arguing that important institutional forms, such as informal institutions, tacit bargaining, and intersubjective institutions often arise from processes other than agreement, and that political science studies on rational design and legalization have ignored important independent variables such as interests, power/capabilities, institutional path dependence, and the role of ideas).
376. See generally Martha Finnemore & Stephen J. Toope, Alternatives to "Legalization": Richer Views of Law and Politics, 55 INT'L ORG. 743 (2001);
377. See Paul Pierson, Increasing Returns, Path Dependence, and the Study of Politics, 94 AM. POL. SCI. REV. 251 (2000);
378. Mark Axelrod, Saving Institutional Benefits: Path Dependence in International Law (2008) (unpublished Ph.D. dissertation, Duke University) (on file with the authors);
379. Katerina Linos, Path Dependence in Discrimination Law: Employment Cases in the United States and the European Union, 35 YALE J. INT'L L. 115 (2010).
380. Wethank Marty Finnemore for this point. For an illustration of this convergence, see generallyHENRY FARRELL, THE POLITICAL ECONOMY OF TRUST: INSTITUTIONS, INTERESTS, AND INTER-FIRM COOPERATION IN ITALY AND GERMANY (2011).
381. ChristianBrütsch&DirkLehmkuhl, Complex Legalization and the Many Moves to Law, in LAW AND LEGALIZATION IN TRANSNATIONAL RELATIONS 9 (Christian Brütsch & Dirk Lehmkuhl eds., 2007) (arguing that political science research on legalization has ignored political agency and identity and that such studies have ignored the social fabric within which states make choices such as those surrounding legalization and the design of legal institutions);
382. Mathias Albert, Beyond Legalization: Reading the Increase, Variation and Differentiation of Legal and Law-Like Arrangements in International Relations Through World Society Theory, in LAW AND LEGALIZATION IN TRANSNATIONAL RELATIONS, supra, at 185 (arguing that legalization is part of the international system's broader evolutionary processes rather than simply a mechanism for ordering particular political affairs).
383. See EmilieM.Hafner-Burton, Miles Kahler&AlexanderH.Montgomery, Network Analysis For International Relations, 63 INT'L ORG. 559 (2009);
384. Emilie Marie Hafner-Burton & Alexander H. Montgomery, Centrality in Politics: How Networks Confer Influence, at http://papers.ssrn.com/sol3/papers. cfm?abstract-id-1594386 (explaining how the availability of diverse outside options gives actors direct access to other important actors and decreases their dependency on any one actor).
385. See Erik Voeten, Outside Options and the Logic of Security Council Action, 95AM. POL. SCI. REV. 845 (2001).
386. See Orde F. Kittrie, Averting Catastrophe: Why the Nuclear Nonproliferation Treaty Is Losing Its Deterrence Capacity and How to Restore It, 28MICH. J. INT'L L. 337 (2006). Indeed, many security agreements are sensitive to a cascading effect, which gives disproportionate power over legal content and impact to the first domino that falls or window that breaks; governments keen on security cooperation and mindful of those cascades become especially attentive to weak links in the system. See Smithson, supra note 25 (arguing that if treaties are to be effective in stopping a domino effect of states arming themselves- either because the treaty is not respected or because states try to protect themselves from their neighbors- universal adherence is eventually necessary);
387. Charles Lipson, International Cooperation in Economic and Security Affairs, 37WORLD POL. 1 (1984) (arguing that when states observe defection, they defect themselves because their security is threatened by that defection, not because of a lack of respect for the rules, with the consequence that that even a weak state can cause defections by more powerful states).
388. See supra notes 29-42 and accompanying text. Perhaps the most prominent intellectual tradition in IR outside the United States is the English School, which holds that the international system is a society of states that is reflected in the institutions created to regulate state behavior, including international legal institutions. See generally HEDLEY BULL, THE ANARCHICAL SOCIETY: A STUDY OF ORDER IN WORLD POLITICS (1977);
389. MARTIN WIGHT, INTERNATIONAL THEORY: THE THREE TRADITIONS (1991);
390. BARRY BUZAN, FROM INTERNATIONAL TO WORLD SOCIETY?: ENGLISH SCHOOL THEORY AND THE SOCIAL STRUCTURE OF GLOBALISATION (2004).
391. SeeHAAS, supra note 170; PeterM.Haas, Banning Chlorofluorocarbons: Epistemic Community Efforts to Protect Stratospheric Ozone, 46 INT'L ORG. 187 (1992).
392. See M. J. Peterson, Whalers, Cetologists, Environmentalists, and the International Management of Whaling, 46 INT'L ORG. 147 (1992) (arguing that the influence of cetologists was usually outweighed by that of other groups, such as industry groups and, later, environmentalists).
393. See Karen J. Alter, Private Litigants and the New International Courts, 39COMP. POL. STUD. 22 (2006). Alter finds that, while older international courts (such as the International Court of Justice) lacked private rights of action and compulsory jurisdiction, newer courts often incorporate these design elements. She argues that this trend is likely to lead to a greater number of private actors claiming their rights in international courts, but she notes that these developments mostly apply to Europe. Id. at 23.
394. See Marc L. Busch, Democracy, Consultation, and the Paneling of Disputes Under GATT, 44 J. CONFLICT RESOL. 425, 426-27 (2000) (arguing that these settlements occur because democracies are better able to credibly commit to
395. See Christina L. Davis&Yuki Shirato, Firms, Governments, andWTOAdjudication: Japan's Selection of WTO Disputes, 59 WORLD POL. 274 (2007).
396. See Christina L. Davis&Sarah Blodgett Bermeo, Who Files? Developing Country Participation in GATT/WTO Adjudication, 71 J. POL. 1033 (2009).
397. Geoffrey Garrett, Daniel Kelemen&Heiner Schulz, The European Court of Justice, National Governments and Legal Integration in the European Union, 52 INT'L ORG. 149 (1998);
398. Clifford J. Carrubba, Courts and Compliance in International Regulatory Regimes, 67 J. POL. 669 (2005);DELEGATION AND AGENCY IN INTERNATIONAL ORGANIZATIONS, supra note 148.
399. See Karen J. Alter, Agents or Trustees? International Courts in Their Political Context, 14 EUR. J. INT'L REL. 33 (2008)
400. see also Karen J. Alter, Who Are the "Masters of the Treaty"? European Governments and the European Court of Justice, 52 INT'L ORG. 121 (1998).
401. See generally Jeffrey K. Staton & Will H. Moore, Judicial Power in Domestic and International Politics, 65 INT'L ORG. 553 (2011).
402. See Erik Voeten, The Politics of International Judicial Appointments: Evidence from the European Court of Human Rights, 61 INT'L ORG. 669 (2007);
403. Erik Voeten, The Impartiality of International Judges: Evidence from the European Court of Human Rights, 102 AM. POL. SCI. REV. 417 (2008).
404. See Clifford J. Carrubba, Matthew Gabel & Charles Hankla, Judicial Behavior Under Political Constraints: Evidence from the European Court of Justice, 102 AM. POL. SCI. REV. 435 (2008).
405. For an argument regarding the ways in which theWTO'sDSMoperates strategically, see Marc L. Busch&Krzysztof J. Pelc, The Politics of Judicial Economy at the World Trade Organization, 64 INT'L ORG. 257 (2010).
406. See Erik Voeten, Borrowing and Nonborrowing Among International Courts, 39 J. LEGAL STUD. 547 (2010).
407. Legal scholars have already paid significant attention to similar questions, such as the use of foreign law in domestic courts. See, e.g., Eyal Benvenisti, Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts, 102 AJIL 241 (2008).
408. See Yonatan Lupu & Erik Voeten, Precedent in International Courts: A Network Analysis of Case Citations by the European Court of Human Rights, BRIT. J. POL. SCI. (forthcoming 2012). For a related argument regarding the political constraints in the WTO system, see Steinberg, supra note 149.
409. See Checkel, supra note 52; Peter M. Haas&Ernst B. Haas, Learning to Learn: Improving International Governance, 1 GLOBAL GOVERNANCE 255 (1995).
410. On the Montreal Protocol generally, see David G. Victor, Enforcing International Law: Implications for an Effective Global Warming Regime, 10 DUKE ENVTL. L. & POL'Y F. 147 (1999) (showing that diplomats initially focused on the easiest areas of agreement). On the Rhine River, see Bernauer, supra note 90 (showing that as the Netherlands learned how to make financial incentives conditional upon French behavior, it became easier to achieve deep reductions in pollution from French industrial sources).
411. See, e.g., Jośe E. Alvarez, How Not to Link: Institutional Conundrums of an Expanded Trade Regime, 7 WIDENER L. SYMP. J. 1 (2001);
412. Jośe E. Alvarez, The WTO as Linkage Machine, 96 AJIL 146 (2002).
413. These linkages are often framed and created by international organizations, such as discussed in Barnett&Finnemore, supra note 48. See also Claire R. Kelly, Power, Linkage and Accommodation: TheWTOas an International Actor and Its Influence on Other Actors and Regimes, 24 BERKELEY J. INT'L L. 79 (2006) (arguing that theWTO itself plays a key role in setting boundaries, though without giving much attention to the underlying interests of key WTO members).
414. See SUSAN K. SELL, POWER AND IDEAS: NORTH-SOUTH POLITICS OF INTELLECTUAL PROPERTY AND ANTITRUST (1998);
415. Susan K. Sell, Intellectual Property Rights, in GOVERNING GLOBALIZATION: POWER, AUTHORITY AND GLOBAL GOVERNANCE 171 (David Held & Anthony McGrew eds., 2002).
416. See Kal Raustiala&David G. Victor, The Regime Complex for Plant Genetic Resources, 58 INT'LORG. 277 (2004).
417. The early research on these questions focused on hierarchical legal systems-so-called nested regimes. See INSTITUTIONALDESIGNS FOR ACOMPLEXWORLD: BARGAINING LINKAGES,ANDNESTING (Vinod K. Aggarwal ed., 1998).
418. For other work looking at more fragmented outcomes, see, for example, Raustiala & Victor, supra note 220, and Karen J. Alter&Sophie Meunier, Nested and Overlapping Regimes in the Transatlantic Banana Trade Dispute, 13 J. EUR. PUB. POL'Y 362 (2006).
419. For recent reviews, see Karen J. Alter&Sophie Meunier, The Politics of International Regime Complexity,7PERSPECTIVESONPOL. 13 (2009);
420. Frank Biermann, Philipp Pattberg, Harro van Asselt & Fariborz Zelli, The Fragmentation of Global Governance Architectures: A Framework for Analysis, 9 GLOBAL ENVT'L POL., Nov. 2009, at 14;
421. and Eyal Benvenisti & George W. Downs, The Empire's New Clothes: Political Economy and the Fragmentation of International Law, 60STAN. L.REV. (2007) (arguing that fragmentation results from a strategic effort by powerful states to achieve greater autonomy-a strategy built, in part, on weaker states' relative difficulty engaging with fragmented legal systems).
422. For similar discussions by political scientists who study local (that is, not international) common-pool resources, see POLYCENTRICITY AND LOCAL PUBLIC ECONOMIES: READINGSFROMTHEWORKSHOP IN POLITICALTHEORYANDPOLICYANALYSIS (Michael D. McGinnis ed., 1999).
423. See Robert O. Keohane & David G. Victor, The Regime Complex for Climate Change, 9 PERSPECTIVES ON POL. 7 (2011).
424. See generally Beth Simmons, Treaty Compliance and Violation, 13 ANN. REV. POL. SCI. 273 (2010).
425. See, e.g., INIS L. CLAUDE JR., SWORDS INTO PLOWSHARES: THE PROBLEMS AND PROCESS OF INTERNATIONALORGANISATION (1959);HENKIN, supra note 11; FRANCK, supra note 33; CHAYES&CHAYES, supra note 11. For a discussion that incorporates arguments from law and political science
426. see Kal Raustiala & Anne- Marie Slaughter, International Law, International Relations and Compliance, inHANDBOOK OF INTERNATIONAL RELATIONS (Walter Carlsnaes, Thomas Risse & Beth A. Simmons eds., 2002).
427. In recent years, this insight has also been adopted in the legal literature, including in collaborations between political scientists and lawyers or by scholars trained in both fields. See, e.g., Kal Raustiala, The Architecture of International Cooperation: Transgovernmental Networks and the Future of International Law, 43VA. J. INT'L L. 1 (2002);
428. Kal Raustiala, Compliance&Effectiveness in International Regulatory Cooperation, 32CASE W. RES. J. INT'L L. 387 (2000);
429. Oona Hathaway, Why Do Countries Commit to Human Rights Treaties?, 51 J. CONFLICT RESOL. 588 (2007); Ho, supra note 132;
430. David M. Golove, Leaving Customary International Law Where It Is: Goldsmith and Posner's The Limits of International Law, 34 GA. J. INT'L&COMP. L. 333 (2006);
431. Symposium, How Are Nations Behaving?, 96 ASIL PROC. 205 (2002).
432. Several studies by legal scholars have also reached similar conclusions. See, e.g., Nigel Purvis, Critical Legal Studies in Public International Law, 32HARV. INT'L L.J. 81 (1991);
433. Martti Koskenniemi, Book Review, 86 AJIL 175, 177 (1992);
434. KOSKENNIEMI, supra note 13; Benedict Kingsbury, The Concept of Compliance as a Function of Competing Conceptions of International Law, 19MICH. J. INT'L L. 345 (1998);
435. Goodman & Jinks, supra note 54; Robert Howse & Ruti Teitel, Beyond Compliance: Rethinking Why International Law Really Matters, 1 GLOBAL POL'Y, May 2010, at 127.
436. But see Lisa Martin, Against Compliance (2011) (unpublished manuscript) (arguing that political scientists should abandon the study of compliance altogether) (on file with authors).
437. See Beth A. Simmons & Daniel J. Hopkins, The Constraining Power of International Treaties: Theory and Methods, 99 AM. POL. SCI. REV. 623 (2005);
438. Jana Von Stein, Do Treaties Constrain or Screen? Selection Bias and Treaty Compliance, 99 AM. POL. SCI. REV. 611 (2005);
439. Yonatan Lupu, The Informative Power of Treaty Commitment: Using the Spatial Model to Address Selection Effects (2011) (unpublished manuscript) (on file with authors). For a methodological discussion of the problem that selection effects pose for attempts to make causal inference from data
440. see JUDEA PEARL, CAUSALITY:MODELS, REASONING, AND INFERENCE (2000). For a more detailed review of empirical research rooted in these debates, see Shaffer & Ginsburg, supra note 4.
441. See generally James D. Fearon, Counterfactuals and Hypothesis Testing in Political Science, 43WORLDPOL. 169 (1991);
442. Gary King, Robert O. Keohane&Sidney Verba, The Importance of Research Design in Political Science, 89 AM. POL. SCI. REV. 475 (1995).
443. See, e.g., Joanne Gowa&Soo Yeon Kim, An Exclusive Country Club: The Effects of theGATTon Trade, 1950- 94, 57WORLD POL. 453 (2005);
444. Goldstein et al., supra note 83. But see Andrew K. Rose, Do We Really Know That the WTO Increases Trade?, 94 AM. ECON. REV. 98 (2004) (arguing that theWTO has not caused an increase in trade levels).
445. See Thomas Bernauer, The Effect of International Environmental Institutions: How We Might Learn More, 49 INT'LORG. 351 (1995) (arguing that the right measure of effectiveness should be the actual solution of underlying environmental problems);
446. see also Ronald B. Mitchell, Evaluating the Performance of Environmental Institutions: What to Evaluate and How to Evaluate It?, in INSTITUTIONS AND ENVIRONMENTALCHANGE: PRINCIPAL FINDINGS, APPLICATIONS, AND RESEARCH FRONTIERS 79 (Oran R. Young, Heike Schroeder & Leslie A. King eds., 2008).
447. See Julian Ku & Jide Nzelibe, Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?, 84WASH. U. L. REV. 777 (2006) (arguing that criminal tribunals can undermine cooperation by targeting actors whose participation in the peace process is vital). Oona Hathaway argued several years ago that commitment to several human rights treaties was associated with higher levels of human rights abuses. Hathaway, supra note 1. That finding spawneda significantbodyof researchamongpolitical scientists.
448. See, e.g., JayGoodliffe&DarrenG.Hawkins,Explaining Commitment: States and the Convention Against Torture, 68J.POL. 358 (2006);
449. James Raymond Vreeland, Political Institutions and Human Rights: Why Dictatorships Enter into the United Nations Convention Against Torture, 62 INT'LORG. 65 (2008);
450. James R. Hollyer&B. Peter Rosendorff, Why Do Authoritarian Regimes Sign the Convention Against Torture? Signaling, Domestic Politics and Non-compliance, Q. J. POL. SCI. (forthcoming).
451. See ROBERT L. FREIDHEIM, TOWARD A SUSTAINABLE WHALING REGIME (2001).
452. See, e.g., LISA L.MARTIN, COERCIVE COOPERATION: EXPLAININGMULTILATERAL ECONOMIC SANCTIONS (1992);
453. Edward D. Mansfield, International Institutions and Economic Sanctions, 47 WORLD POL. 575 (1995) (book review);
454. DanielW.Drezner, Bargaining, Enforcement, and Multilateral Sanctions:WhenIs Cooperation Counterproductive?, 54 INT'LORG. 73 (2000);
455. Navin A. Bapat&T. Clifton Morgan, Multilateral Versus Unilateral Sanctions Reconsidered: A Test Using New Data, 53 INT'L STUD. Q. 1075 (2009).
456. See Ronald B. Mitchell, Regime Design Matters: Intentional Oil Pollution and Treaty Compliance, 48 INT'L ORG. 425 (1994).
457. See Neumayer, supra note 181; Emilie M. Hafner-Burton&Kiyoteru Tsutsui, Human Rights in a Globalizing World: The Paradox of Empty Promises, 110AM. J. SOC. 1373 (2005).
458. See Marc A. Levy, European Acid Rain: The Power of Tote-Board Diplomacy, in INSTITUTIONS FOR THE EARTH: SOURCES OFEFFECTIVE INTERNATIONALENVIRONMENTAL PROTECTION 75 (PeterM.Haas, Robert O. Keohane & Marc A. Levy eds., 1993).
459. See Finnemore&Sikkink, supra note 36; see also Ellen L. Lutz&Kathryn Sikkink, InternationalHumanRights Lawand Practice in Latin America, 54INT'LORG. 633 (2000);
460. Judith Kelley,WhoKeeps International Commitments and Why? The International Criminal Court and Bilateral Nonsurrender Agreements, 101 AM. POL. SCI. REV. 573 (2007). This type of argument has also been made by several legal scholars. See, e.g., HENKIN, supra note 11; Koh, supra note 32. Drawing on sociology, some scholars have studied the propensity of nations to join international commitments because that is part of being a member in good standing in the international community.
461. See, e.g., John W. Meyer, John Boli, George M. Thomas & Francisco O. Ramirez, World Society and the Nation-State, 103 AM. J. SOC. 144 (1997). Similarly, political scientist Krasner argues that, among other reasons, states often sign these agreements "to follow the script of modernity."
462. STEPHEN D. KRASNER, SOVEREIGNTY: ORGANIZED HYPOCRISY 121 (1999). A similar logic has been extended to explain why so many firms join voluntary codes of conduct. Firms seek safety in numbers. See Vogel, supra note 27.
463. See Brian Greenhill, The Company You Keep: International Socialization and the Diffusion of Human Rights Norms, 54 INT'L STUD. Q. 127 (2010).
464. This "critical" perspective covers a broad array of studies that do not fit well under any simple label. See, e.g., ADRIANA SINCLAIR, INTERNATIONAL RELATIONS THEORY AND INTERNATIONAL LAW: A CRITICAL APPROACH (2010).
465. Many of these views are rooted in critical legal studies. See, e.g., DAVID KENNEDY, INTERNATIONAL LEGAL STRUCTURES (1987) (arguing that there are no objective standards of justice in international society). KOSKENNIEMI, supra note 13, argues that international law, coming largely from the Western liberal tradition, has not succeeded in its goals of creating a system based on sovereignty and consent. The result, he concludes, is a European, Christian, developed-state bias in the international legal system.
466. See alsoHILARY CHARLESWORTH&CHRISTINE CHINKIN, THE BOUNDARIES OF INTERNATIONAL LAW: A FEMINIST ANALYSIS (2000) (offering a feminist approach to international law and arguing that the legal order places insufficient emphasis on women's economic and social rights); Charlesworth et al., supra note 13 (pointing to the notion that the primary subjects of international law are states and international organizations, and that leadership in both underrepresents women). Another branch of legal scholarship focuses on race.
467. See, e.g., Ediberto Román, A Race Approach to International Law (RAIL): Is There a Need for Yet Another Critique of International Law?, 33 U.C. DAVIS L. REV. 1519 (1999) (arguing that most international legal scholarship marginalizes race).
468. Geoffrey Garrett, The Politics of Legal Integration in the European Union, 49 INT'L ORG. 171 (1995);
469. Several of these scholars have since moderated their positions. See, e.g., Geoffrey Garrett, Daniel Kelemen& Heiner Schulz, The European Court of Justice, National Governments and Legal Integration in the European Union, 52 INT'LORG. 149 (1998) (noting that in some instances domestic governments comply with decisions that they would prefer to ignore);
470. KAREN J. ALTER, ESTABLISHING THE SUPREMACY OF EUROPEAN LAW: THEMAKING OF AN INTERNATIONAL RULE OF LAW IN EUROPE (2001) (noting that governments would sometimes prefer to ignore ECJ rulings but that in many cases the potential legitimacy cost of doing so prevents such noncompliance).
471. See Anne-Marie Burley & Walter Mattli, Europe Before the Court: A Political Theory of Legal Integration, 47 INT'L ORG. 41 (1993);
472. Walter Mattli & Anne-Marie Slaughter, Law and Politics in the European Union: A Reply to Garrett, 49 INT'L ORG. 183 (1995).
473. See, e.g., Rachel A. Cichowski, Courts, Rights, and Democratic Participation, 39COMP.POL. STUD. 50 (2006).
474. See, e.g., Clifford J. Carrubba, The European Court of Justice, Democracy, and Enlargement, 4 EUR. UNION POL. 75 (2003); see generally Carrubba, supra note 207;
475. Michael Gilligan, Leslie Johns & B. Peter Rosendorff, Strengthening International Courts and the Early Settlement of Disputes, 54 J. CONFLICT RESOL. 5 (2010).
476. See, e.g.,TODDLANDMAN, PROTECTINGHUMANRIGHTS:ACOMPARATIVE STUDY(2005) (arguing that human rights agreements mostly exert influence on government behavior indirectly).
477. See Abbott et al., supra note 131; Kenneth W. Abbott & Duncan Snidal, Pathways to International Cooperation, in THE IMPACT OF INTERNATIONAL LAW ON INTERNATIONAL COOPERATION: THEORETICAL PERSPECTIVES 50 (Eyal Benvenisti & Moshe Hirsch eds., 2004) (exploring different pathways through which states can obtain flexibility needed to promote deeper cooperation); VICTOR, supra note 152 (explaining how flexibility could help address the particular challenges of global climate change);
478. RICHARD B. BILDER, MANAGING THE RISKS OF INTERNATIONAL AGREEMENT (1981) (analyzing the special role of soft law as a source of flexibility).
479. See, e.g., RAYMOND VERNON, SOVEREIGNTY AT BAY: THE MULTINATIONAL SPREAD OF U.S. ENTERPRISES (1971).
480. See, e.g., THE POLITICS OF GLOBAL REGULATION (Walter Mattli & Ngaire Woods eds., 2009).
481. But see Layna Mosley, Private Governance for the Public Good? Exploring Private Sector Participation in Global Financial Regulation, in POWER, INTERDEPENDENCE AND NONSTATE ACTORS IN WORLD POLITICS (Helen V. Milner & Andrew Moravcsik eds., 2009);
482. RONIE GARCIA-JOHNSON, EXPORTING ENVIRONMENTALISM: U.S. MULTINATIONAL CHEMICAL CORPORATIONS IN BRAZIL AND MEXICO (2000).
483. See JOHN BRAITHWAITE & PETER DRAHOS, GLOBAL BUSINESS REGULATION (2009)
484. PRIVATE AUTHORITY AND INTERNATIONAL AFFAIRS (A. Claire Cutler, Virginia Haufler&Tony Porter eds., 2005);
485. Phillip Pattberg, Institutionalization of Private Governance, 18 GOVERNANCE 589 (2005). Research on private regulation has also overlapped with the study of corporate social responsibility and with debates over whether firms will (and should) self-regulate in ways that may be immediately contrary to their particular financial interests.
486. See, e.g., David P. Baron, Morally Motivated Self-Regulation, 100 AMER. ECON. REV. 1299 (2010).
487. See, e.g., JENNIFER A. ZERK, MULTINATIONALS AND CORPORATE SOCIAL RESPONSIBILITY: LIMITATIONS AND OPPORTUNITIES IN INTERNATIONAL LAW (2006);
488. Larry Cata Backer, From Moral Obligation to International Law: Disclosure Systems, Markets and the Regulation of Multinational Corporations, 39 GEO. J. INT'L L. 591 (2008);
489. Surya Deva, Human Rights Violations by Multinational Corporations and International Law: Where from Here?, 19CONN. J. INT'L L. 1 (2003);
490. Carlos M. Vazquez, Direct vs. Indirect Obligations of Corporations Under International Law, 43COLUM. J. TRANSNAT'L L. 927 (2005);
491. GREGORY C. SHAFFER,DEFENDING INTERESTS: PUBLIC PRIVATE PARTNERSHIPS IN W.T.O. LITIGATION (2003);
492. Gregory Shaffer, How Business Shapes Law: A Socio-Legal Framework, 42 CONN. L. REV. 147 (2009).
493. See PETER DRAHOS & JOHN BRAITHWAITE, INFORMATION FEUDALISM: WHO OWNS THE KNOWLEDGE ECONOMY? (2002); Intellectual Property Rights, supra note 219; Jon Aaronson, International Intellectual Property Rights in a Networked World, in POWER, INTERDEPENDENCE AND NONSTATE ACTORS, supra note 264.
494. On firms, see James Maxwell & Forrest Briscoe, There's Money in the Air: The CFC Ban and DuPont's Regulatory Strategy, 6 BUS. STRATEGY & ENVIR. 276 (1997);
495. DAVID L. LEVY&PETER J.NEWELL, THE BUSINESS OFGLOBAL ENVIRONMENTALGOVERNANCE (2004);
496. and Horst Albach, Ellen Krupa&Dieter Koster, Entry, Entry-Deterrence and Exit: A Study of the Market for CFCs, 51 KYKLOS 469 (1998).
497. See Sam Peltzman, Toward a More General Theory of Regulation, 19 J.L.&ECON. 211 (1976);
498. George J. Stigler, The Theory of Economic Regulation, 2 BELL J. ECON&MGMT. SCI. 3 (1971);
499. A READER ON REGULATION (Robert Baldwin, Colin Scott & Christopher Hood eds., 1998).
500. See, e.g., Jonathan I. Charney, International Agreements and the Development of Customary International Law, 61WASH. L. REV. 971 (1986);
501. Theodor Meron, The Continuing Role of Custom in the Formation of International Humanitarian Law, 90 AJIL 238 (1996);
502. J. Patrick Kelly, The Twilight of Customary International Law, 40 VA. J. INT'L L. 449 (2000);
503. GOLDSMITH&POSNER, supra note 1; John O. McGinnis, The Comparative Disadvantage of Customary International Law, 30HARV. J. L.&PUB. POL'Y 7 (2006);
504. Andrew T. Guzman&Timothy L. Meyer, Customary International Law in the 21st Century, in PROGRESS IN INTERNATIONAL LAW (Russell A. Miller & Rebecca Bratspies eds., 2008);
505. Curtis A. Bradley&Mitu Gulati, Withdrawing from International Custom, 120 YALE L.J. 202 (2010).