《法学资料集》（英文版） University of California at Berkeley School of law

University of California at Berkeley School of law nternational law A Compliance based Theor by Andrew T Guzman UC Berkeley School of Law Public Law and Legal Theory Working Paper No 47 pril 2001 UC Berkeley Public law and Legal Theory Working Paper Series UC Berkeley School of Law, Boalt Hall, Berkeley, CA 94720-7200 This paper can be downloaded without charge from the Social Science Research Network Paper Collection at http://papers.ssrn.com/paper.taf?abstractid=260257

University of California at Berkeley School of Law International Law: A Compliance Based Theory by Andrew T. Guzman UC Berkeley School of Law Public Law and Legal Theory Working Paper No. 47 April 2001 UC Berkeley Public Law and Legal Theory Working Paper Series UC Berkeley School of Law, Boalt Hall, Berkeley, CA 94720-7200 This paper can be downloaded without charge from the Social Science Research Network Paper Collection at http://papers.ssrn.com/paper.taf?abstract_id=260257

INTERNATIONAL LAW A COMPLIANCE BASED THEORY Andrew T Guzman p Assistant Professor of Law, Boalt Hall School of Law, University of California at Berkeley. I owe thanks to David Caron, Stephen Choi, Jack Goldsmith, Benedict Kingsbury, Eric Posner, Beth Simmons, John Yoo, and participants at the Boalt Hall International Law and Politics Workshop for helpful discussions and comments. Special thanks to Jeannie Sears and Nicholas James Ryan Waterman provided excellent research assistance. I am grateful to the John M. Olin Foundation for financial assistance. Contact: guzman @law. berkeley. edu

INTERNATIONAL LAW: A COMPLIANCE BASED THEORY Andrew T. Guzman* April 2001 * Assistant Professor of Law, Boalt Hall School of Law, University of California at Berkeley. I owe thanks to David Caron, Stephen Choi, Jack Goldsmith, Benedict Kingsbury, Eric Posner, Beth Simmons, John Yoo, and participants at the Boalt Hall International Law and Politics Workshop for helpful discussions and comments. Special thanks to Jeannie Sears and Nicholas James. Ryan Waterman provided excellent research assistance. I am grateful to the John M. Olin Foundation for financial assistance. Contact: guzman@law.berkeley.edu

Abstract This Article examines international law from the perspective of compliance Using insights from international relations theory, the article adopts a theory in which compliance comes about in a model of rational, self-interested states. Specifically, states are concerned about both reputational and direc t sanctions tor their conduct The model allows us to consider international law in a new strikingly, one is forced to reconsider two of the most fundamental doctrinal points in the field -the definitions of customary international law( CIL) and of international law itself. A reputational model of compliance makes it clear that Cil affects the behavio of a state because other states believe that the first state has a commitment that it must honor. A failure to honor that commitment hurts a state's reputation because it signals that it is prepared to breach its obligations. This implies a definition that turns on the existence of an obligation in the eyes of other states rather than the conventional requirements of state practice and a sense of legal obligation felt by the breaching state Classical definitions of international law look to two primary sources of law treaties and CIL. A reputational theory, however, would label as international law any commitment that materially alters state incentives. This includes agreements that fall hort of the traditional definition, including what is often referred to as "soft law. "The Article points out that there is no way to categorize treaties and Cil as " law"without also including soft law. Agreements such as ministerial accords or memoranda of understanding represent commitments by a state which, if breached, will have a reputational impact. For this reason, these soft law agreements should be included in the definition of international law The Article also calls for a refocusing of international law scholarship. Because international law works through reputational and direct sanctions, we must recogni that these sanctions have limited force. As a result, international law is more likely to have an impact on events when the stakes are relatively modest. The implication is that many of the topics that receive the most attention in international law- the laws of war territorial limits, arms agreements, and so on - are unlikely to be affected by international law. On the other hand, issues such as international economic matters, environmental issues, and so on, can more easily be affected by international law. This suggests that the international law academy should focus greater attention on the latter subjects and less on th e former

Abstract This Article examines international law from the perspective of compliance. Using insights from international relations theory, the Article adopts a theory in which compliance comes about in a model of rational, self-interested states. Specifically, states are concerned about both reputational and direct sanctions for their conduct. The model allows us to consider international law in a new light. Most strikingly, one is forced to reconsider two of the most fundamental doctrinal points in the field – the definitions of customary international law (CIL) and of international law itself. A reputational model of compliance makes it clear that CIL affects the behavior of a state because other states believe that the first state has a commitment that it must honor. A failure to honor that commitment hurts a state’s reputation because it signals that it is prepared to breach its obligations. This implies a definition that turns on the existence of an obligation in the eyes of other states rather than the conventional requirements of state practice and a sense of legal obligation felt by the breaching state. Classical definitions of international law look to two primary sources of law – treaties and CIL. A reputational theory, however, would label as international law any commitment that materially alters state incentives. This includes agreements that fall short of the traditional definition, including what is often referred to as “soft law.” The Article points out that there is no way to categorize treaties and CIL as “law” without also including soft law. Agreements such as ministerial accords or memoranda of understanding represent commitments by a state which, if breached, will have a reputational impact. For this reason, these soft law agreements should be included in the definition of international law. The Article also calls for a refocusing of international law scholarship. Because international law works through reputational and direct sanctions, we must recognize that these sanctions have limited force. As a result, international law is more likely to have an impact on events when the stakes are relatively modest. The implication is that many of the topics that receive the most attention in international law – the laws of war, territorial limits, arms agreements, and so on – are unlikely to be affected by international law. On the other hand, issues such as international economic matters, environmental issues, and so on, can more easily be affected by international law. This suggests that the international law academy should focus greater attention on the latter subjects and less on the former

INTERNATIONAL LAW: A COMPLIANCE BASED THEORY Ⅰ. INTRODUCTION.… IL. EXISTING THEORIES OF INTERNATIONAL LAW A. Traditional Legal Theories B. International Relations Theories IIL. A THEORY OF COMPLIANCE 6389 A. A Theory of the Irrelevance of International Law.. B. A Model of International Law C. Applying the Model-Bilateral Investment Treaties D DynamIc Issues E. The Level of Commitment F. International Law and Coordination I VIOLATION AND COMPLIANCE A. Reputational Sanctions B. Direct sanctions C. When Will Sanctions Work best? D. Acceptance of Sanctions V RETHINKING INTERN ATIONAL LAW A. Treaties B. A New Definition of Customary International Law C. A New Definition of international law ......... 60 D. Revisiting Existing Theories E. The Problem of Large Stakes... VI CONCLUSION

INTERNATIONAL LAW: A COMPLIANCE BASED THEORY I. INTRODUCTION.............................................................................1 II. EXISTING THEORIES OF INTERNATIONAL LAW.................5 A. Traditional Legal Theories ..........................................................6 B. International Relations Theories................................................13 III. A THEORY OF COMPLIANCE.................................................18 A. A Theory of the Irrelevance of International Law.....................19 B. A Model of International Law...................................................22 C. Applying the Model – Bilateral Investment Treaties.................29 D. Dynamic Issues..........................................................................31 E. The Level of Commitment.........................................................34 F. International Law and Coordination ..........................................36 IV. VIOLATION AND COMPLIANCE...........................................40 A. Reputational Sanctions..............................................................40 B. Direct Sanctions.........................................................................45 C. When Will Sanctions Work Best? .............................................49 D. Acceptance of Sanctions............................................................51 V. RETHINKING INTERNATIONAL LAW...................................53 A. Treaties ......................................................................................53 B. A New Definition of Customary International Law ..................54 C. A New Definition of International Law.....................................60 D. Revisiting Existing Theories .....................................................65 E. The Problem of Large Stakes.....................................................68 VI. CONCLUSION............................................................................72

I INTRODUCTION International law scholarship has only just begun to feel the influence of the sort of interdisciplinary research that has revolutionized much of the legal academy. Starting with Professor Abbott's 1989 article, Modern Intemational Relations Theory: A Prospectus for Intenational lawyers, scholars with interests in international relations and economics have begun to apply the tools of these other disciplines to international law he resulting scholarship has presented international law in a new light, and posed new hallenges for traditional international law scholars Most legal scholars and practitioners believe that international law matters in the sense that it affects the behavior of states. Conventional theories advanced by legal cholars, however, are considered flawed because they are difficult to reconcile with modern international relations theory, rely heavily on axiomatic claims about national behavior, and lack a coherent theory of compliance with international law. It is fair to say that most conventional international law scholarship does not ask why there is compliance but rather simply assumes as much. International relations theory, on the other hand, offers a set of competing theories and a more satisfying account of nationa behavior. These theories are often skeptical of the role international law has to play in Kenneth W. Abbott, Modern Intemational Relations Theory: A Prospectus for Intenational Lawyers, 14 YALE J. INT'L L 335(1989)(hereinafter Prospectus The most prominent interdisciplinary articles include Kenneth W. Abbott, Intemational Relations Theory, Intemational Law, and the Regime Governing Atrocities in Internal Conflicts, 93 AM. J. INT'L L 361( 1999); Anne-Marie Slaughter, Andrew S. Tulumello Stepan Wood, Intemational Law and Intenational Relations Theory: A New Generations of Interdisciplinary Scholarship, 93 AM. J. NT'L L. 367 (1998); Anne-Marie Slaughter Burley, Intenational Law and International Relations Theory: A Dual Agenda, 87 AM.J. NT'L L. 205(1993); hck L. Goldsmith Eric A. Posner, A Theory of Customary Intemational Law, 66 U. CHI. L. REV. 1113(1999); Jeffrey L. dunoff Joel P. Trachtman, Economic Analysis of Intemational Law, 24 YALE J. NT'L L. 1(1999); John K. Setear, An Iterative Perspective on Treaties: A Synthesis of Intenational Relations Theory and Intenational Law, 37 HARV. J. NT'L L. 139(1996); Harold Koh, Why Do Nations Obey Intemational Law?, 106 YALE L J 2599(1997); John K. Setear, Responses Breach of a Treaty and Rationalist Intenational Relations Theory: The Rules of release and Remediation in the Law of treaties and the Law of state V. 1(1997): Edwin M. Sn Understanding Dynamic Obligations: Arms Control Agreements, 64 S. CAL. L REV. 1549(1991). In ddition, a recent issue of INTERNATIONAL ORGANIZATIONS (Summer 2000)is devoted to an international relations approach to questions of international law 3 See LOUIS HENKIN, HOW NATIONS BEHAVE 46-48(1979); Abram Chayes antonia Chayes, On Compliance, 47 INT'L ORG. 175, 4 See e.g., ABRAM CHAYES ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS 3(1995)(foreign policy practitioners operate on the assumption of a general propensity of states to comply with international obligations")

I. INTRODUCTION International law scholarship has only just begun to feel the influence of the sort of interdisciplinary research that has revolutionized much of the legal academy. Starting with Professor Abbott’s 1989 article, Modern International Relations Theory: A Prospectus for International Lawyers, 1 scholars with interests in international relations and economics have begun to apply the tools of these other disciplines to international law.2 The resulting scholarship has presented international law in a new light, and posed new challenges for traditional international law scholars. Most legal scholars and practitioners believe that international law matters in the sense that it affects the behavior of states.3 Conventional theories advanced by legal scholars, however, are considered flawed because they are difficult to reconcile with modern international relations theory, rely heavily on axiomatic claims about national behavior, and lack a coherent theory of compliance with international law. It is fair to say that most conventional international law scholarship does not ask why there is compliance but rather simply assumes as much.4 International relations theory, on the other hand, offers a set of competing theories and a more satisfying account of national behavior. These theories are often skeptical of the role international law has to play in 1 Kenneth W. Abbott, Modern International Relations Theory: A Prospectus for International Lawyers, 14 YALE J. INT’L L. 335 (1989) (hereinafter Prospectus). 2 The most prominent interdisciplinary articles include Kenneth W. Abbott, International Relations Theory, International Law, and the Regime Governing Atrocities in Internal Conflicts, 93 AM. J. INT’L L. 361 (1999); Anne-Marie Slaughter, Andrew S. Tulumello & Stepan Wood, International Law and International Relations Theory: A New Generations of Interdisciplinary Scholarship, 93 AM. J. INT’L L. 367 (1998); Anne-Marie Slaughter Burley, International Law and International Relations Theory: A Dual Agenda, 87 AM. J. INT’L L. 205 (1993); Jack L. Goldsmith & Eric A. Posner, A Theory of Customary International Law, 66 U. CHI. L. REV. 1113 (1999); Jeffrey L. Dunoff & Joel P. Trachtman, Economic Analysis of International Law, 24 YALE J. INT’L L. 1 (1999); John K. Setear, An Iterative Perspective on Treaties: A Synthesis of International Relations Theory and International Law, 37 HARV. J. INT’L L. 139 (1996); Harold H. Koh, Why Do Nations Obey International Law?, 106 YALE L.J. 2599 (1997); 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); Edwin M. Smith, Understanding Dynamic Obligations: Arms Control Agreements, 64 S. CAL. L. REV. 1549 (1991). In addition, a recent issue of INTERNATIONAL ORGANIZATIONS (Summer 2000) is devoted to an international relations approach to questions of international law. 3 See LOUIS HENKIN, HOW NATIONS BEHAVE 46-48 (1979); Abram Chayes & Antonia Chayes, On Compliance, 47 INT’L ORG. 175, 176 (1993). 4 See e.g., ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY: COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS 3 (1995) (“foreign policy practitioners operate on the assumption of a general propensity of states to comply with international obligations”)