A Critique on the Theories of Treaty Compliance

An analytical book review comparing Goldsmith and Posner, Chayes and Chayes, Raustiala, et al.

Goldsmith and Posner’s book, “The Limits of International Law” [1] articulates the various theories by well-known scholars on the formation and compliance of treaties, and non-legal agreements. The authors keenly agree or disagree with, as well as add to or deduct from many well-established theories and empirical studies in the field of treaty compliance, while forwarding their own findings and theories. Nonetheless, I found the book to have several contentious points, on which I will elaborate in this book review.

First, Goldsmith and Posner attempt to explain the reason behind the empirical observation of states preferring formal treaties to non-legal agreements. They reason that it must be due to the added values of treaties as compared to non-legal agreements, and thus offered examples of those added values: (i) treaties usually require legislative
consent, which convey important information about state preferences for the treaty, (ii) treaties implicate certain interpretive default lines, and (iii) treaties convey a more serious commitment compared to non-legal agreements.

However, their reasoning of the prevalence of treaties among states is simplistic. In the article, “Form and Substance in International Agreements”, [2] Raustiala offers a more sophisticated explanation by using both functionalist and liberal methodologies to explain the empirical abundance of contracts, which is Raustiala’s term for treaties. He raises Abbott and Snidal’s four conditions under which states would prefer treaties: when the risk of opportunism is high; when noncompliance is hard to detect; when they may serve as a sorting device to form clubs of like-minded parties; and when executive branches use them as a means of committing other branches of government. [3] This functionalist analysis emphasizes credibility and flexibility when trying to understand state preference, in which rational states would trade off ex ante credibility for ex post flexibility.

Raustiala also provides the central explanatory variables from the functionalist perspective that Goldsmith and Posner do not provide, other than their ambiguous proposition of the added value of treaties. Raustiala’s variables are: (i) uncertainty in the underlying cooperative issue; (ii) desire for speed or confidentiality, (iii) the risk of opportunistic behavior by other states; and (iv) diversity in interests and preferences. Accordingly, treaties would become more concentrated in cooperative-type situations as compared to coordination-type situations, due to higher uncertainty and less risk of opportunism of the latter. Thus, treaties are often found in cooperation-type issues such as global warming and fishery controls, as compared to coordination-type situations such as the international monetary system and telecommunications codes. The liberalists, however, would give three different explanatory factors instead, which are: domestic preferences, domestic institutions and relative state power. Indeed, domestic “constituencies for cooperation” would affect state policy depending on their relative power, and since there is an inherent bias among domestic constituencies towards contracts when it comes to reliability, Raustiala concludes that domestic actors who prefer cooperation would exhibit a tendency in favor of treaties.

Second, Goldsmith and Posner propose sanctions as a primary incentive for treaty compliance. According to them, retaliation is actually a form of sanction against non-compliance in the absence of a third-party enforcer, and this is usually the most common commitment mechanism for multilateral treaties, in particular that of cooperative games such as the World Trade Organization (WTO). Thus, when one talks of retaliation, the discussion will invariably lead back to the perpetual controversy of the importance of sanctions in treaty compliance.

However, there is literature espousing sanctions as not being an important factor in compliance. For example, Chayes and Chayes’ propose the managerial model of ensuring compliance in their book, “The New Sovereignty”. [4] To begin, they move away from the traditional rational-choice instrumentalist explanations, and first look at why states comply with treaties. They give three factors, which are: efficiency, interests and norms. Regarding efficiency, government and individual resources for public policy are in short supply, and it is plainly a waste of time and resources to recalculate the cost and benefits in the absence of convincing evidence that circumstances have changed since the original situation, and the alternative is to simply comply with the treaty. In regards to interest, it can be assumed that the parties’ interests are served when they entered the treaty in the first place, for modern treaty-making is not only seen as a creative enterprise where states merely weigh the benefits and burdens of commitment, but also explore, redefine and sometimes discover their own interests. Empirically, no state would negotiate a treaty with the idea that they can break them when it becomes “inconvenient”. In regards to norms, the idea of ‘pacta sunt servanda’ (treaties are to be obeyed) is not only ingrained in the minds of international actors through long-time socialization and custom, but have also become domestic laws in countries like the US. Schauer and Kratochwil has said that the norm itself is a “reason for action” and thus becomes an independent basis for conformity of behavior. [5]

The reason why Chayes and Chayes rejected the sanctions thesis is because of cost and legitimacy problems. Although they base their argument on the example of the lack of third-party enforcement in the international arena, we can also see how retaliation might not even be a primary aggregate factor in making states comply in cooperative games, as the actors would know that it depends on relative state and economic power for such to be effective. Even then, retaliation would be expected to be intermittent and ad hoc due to multiple preferences among other states, thus making cooperation to effect retaliation difficult, and therefore ameliorating the negative effects and also increasing the persuasive power retaliation has on states. Based on the aforementioned factors, Chayes and Chayes built their managerial model to encourage compliance among states, by having an array of pointed activities to reinforce the effect flowing from participating in the regime, attending meetings, responding to requests and meeting deadlines that will realign domestic priorities and agendas. These activities include ensuring transparency, dispute settlement, capacity building and the use of persuasion.

Third, Goldsmith and Posner’s assertion of treaties conveying a more serious commitment – as compared to non-legal agreements – as an added value of treaties ought to be qualified. Although Raustiala has highlighted the inherent bias among certain domestic constituencies for treaties, care must be given to disaggregate domestic constituency preferences with state and other preferences across the board. Just because one constituency treats treaties more seriously does not mean that others should or would. Raustiala categorizes agreements into “deep” and shallow” ones, regardless of whether they are treaties, or non-legal agreements (or what Raustiala calls “pledges”). If one were to use only functionalist explanations, Goldsmith and Posner’s assertion would be true, because functionalist analysis does not distinguish between “deep” and “shallow” treaties or non-legal agreements. Accordingly, there can be shallow treaties and deep non-legal agreements. “Deep” agreements would mean that the parties have to significantly change their policies and thus pay for significant material and political costs, while the reverse would apply to “shallow” ones.

Raustiala also argues that the functionalist argument provides two contrasting conclusions. The first is that legality and depth are negatively correlated, as when credibility reflects expectations about performance – the more shallow the commitment, the more likely performance will be, and therefore the more credible the commitment ex ante. As such, negotiating commitments as treaties should lead to a reduction in the depth of those commitments – all else equal – because states seek a “compliance cushion” or a large margin of error. On the other hand, the second conclusion that legality and depth are positively correlated occurs when states fear the prospect of cheating by other parties, especially when they negotiate deep commitments which are costly to implement, and casting such commitments as treaties raises the costs of nonfulfillment. Thus, the deepest, most costly commitments are contracts to maximize the probability of compliance by other parties, and are reflected in the experiences of the World Trade Organization (WTO), the North American Free Trade Agreement (NAFTA) and many arms control agreements. Both conclusions are plausible, as the first is illustrated by the question, “are states more concerned about the risk of their own noncompliance?”, while the second is illustrated by the question, “are states more concerned about the risk that other parties will fail to comply?”.

Next, Raustiala argues the need to distinguish the structures of international agreements, regardless of whether it is a treaty or a non-legal agreement. He categorizes agreement review structures as “strong” or “weak”. “Strong” structures render individualized decisions about state performance; these decisions may, but not necessarily be accompanied by sanctions, and they also need not address particular disputes, as they may be statements about individual actors and their performance. On the other hand, “weak” structures either make no such evaluations, or make evaluations only about collective party behavior, and in either case the evaluation does not specify any tangible sanction. Taking into consideration Raustiala’s analysis of the legality-depth correlation as well as the structure of international agreements, we can conclude that there exists “shallow” and “weak” agreements, like environmental accords (for example, the Kyoto Protocol), as well as “deep” and strong” non-legal agreements, like international monetary accords (for example, the Plaza Accord). Therefore, Goldsmith and Posner’s assertion that treaties are always more “serious” than non-legal agreements is flawed.

In conclusion, although Goldsmith and Posner’s account of international agreements can be a tad shallow and simplistic, they are nonetheless very accommodating towards the views and theories of political scientists and international law scholars from different schools of thought.

 

1. Jack Goldsmith and Eric Posner, The Limits of International Law, (USA: Oxford University Press, 2005).

2. Kal Raustiala, “Form and Substance in International Agreements”, American Journal of International Law, Vol. 99; Numb. 3 (2005).

3. Kenneth Abbott and Duncan Snidal, “Hard and Soft Law in International Governance”, International Organization, Vol. 54; Issue 03 (2000), 429-430.

4. Abram Chayes and Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge, MA: Harvard University Press, 1995).

5. See Frederick F. Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and Life (Oxford: Clarendon Press, 1991), and Friedrich Kratochwil, Rules, Norms and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge: Cambridge University Press, 1991).


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Posts by Raymond Woo

Raymond Weng Pong Woo is an economic and public policy consultant with a global consulting firm in Kuala Lumpur, Malaysia. He was a Fulbright Scholar at Cornell University, where he pursued a Master of Public Administration and concentrated on International Development Studies (Law and Development). He holds a Bachelor of Law from Osaka University, Japan, where he specialized in Public International Law. He has years of experience in legal and policy research, journalism and education at Nanyang Technological University (Singapore), Osaka University and the United Nations Headquarters. All comments and articles in this blog are entirely the author's own views.

Posted on 29 May 2012. You can follow any responses to this entry through the RSS 2.0.

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