Compliance-Based Theory The managerial model presents a thoughtful and useful account of a certain class of treaties, but falls short of a general theory of compliance or a complete description of international legal agreements. The Chayes Chayes model provides a satisfying account of agreements designed to resolve coordination problems, but does explain how international law assists in other situations In the case of coordination games, it is true that states are likely to comply with an agreement if it is well specified. If that is the case, Chayes chayes are correct that there is no need to focus on enforcement. Resources are better directed at the sort of managerial issues that they recommend, including transparency to ensure successful coordination, dispute settlement, and capacity building. Each of these techniques, as described by Chayes& chayes, assists coordination efforts The managerial model, however, is less useful when considering the use of international law beyond coordination games. Consider first the explanation of why nations comply with the law. Although it is true that transactions costs are saved through a rule of compliance, these costs are not likely to be large and, in any event, there are many other srategies that can lead to similar cost savings. For example,a better strategy from the perspective of a state would be to make its compliance decisions based on the available evidence without any presumption in favor or against compliance. This would maximize the probability of making the appropriate choice, and avoid transaction costs. Other strategies would be better still. In general the best strategy is to invest in information gathering until the marginal cost of additional information is equal to the marginal benefit of that information in terms of its effect on the probability of making the correct choice and the cost of a mistake. Once the optimal amount of information is gathered, the optimal strategy is to base the decision on that information without a presumption in favor of compliance. The second explanation for compliance is the consent based theory which discussed in Part Il. A 2 below. As is stated in that section the consent theory cannot explain why state behavior would be influenced by the existence of an international legal obligation. Finally, Chayes Chayes makes a general appeal to norms in order to explain compliance. The claim that a norm exists in favor of compliance, however, is little more than an assertion that nations comply with the law. It provides no theoretical explanation, and is not helpful in understanding state behavior be manageable. If issues of noncompliance and enforcement are endemic, the real problem is likely to be that the negotiating process did not succeed in incorporating a broad enough f the Id. at 7. 19seei.at135153. o See id at 201-225 Seid.at197-201
Compliance-Based Theory 7 The managerial model presents a thoughtful and useful account of a certain class of treaties, but falls short of a general theory of compliance or a complete description of international legal agreements. The Chayes & Chayes model provides a satisfying account of agreements designed to resolve coordination problems, but does explain how international law assists in other situations. In the case of coordination games, it is true that states are likely to comply with an agreement if it is well specified. If that is the case, Chayes & Chayes are correct that there is no need to focus on enforcement. Resources are better directed at the sort of managerial issues that they recommend, including transparency to ensure successful coordination,19 dispute settlement,20 and capacity building.21 Each of these techniques, as described by Chayes & Chayes, assists coordination efforts. The managerial model, however, is less useful when considering the use of international law beyond coordination games. Consider first the explanation of why nations comply with the law. Although it is true that transactions costs are saved through a rule of compliance, these costs are not likely to be large and, in any event, there are many other strategies that can lead to similar cost savings. For example, a better strategy from the perspective of a state would be to make its compliance decisions based on the available evidence without any presumption in favor or against compliance. This would maximize the probability of making the appropriate choice, and avoid transaction costs. Other strategies would be better still. In general the best strategy is to invest in information gathering until the marginal cost of additional information is equal to the marginal benefit of that information in terms of its effect on the probability of making the correct choice and the cost of a mistake. Once the optimal amount of information is gathered, the optimal strategy is to base the decision on that information without a presumption in favor of compliance. The second explanation for compliance is the consent based theory which is discussed in Part II.A.2 below. As is stated in that section, the consent theory cannot explain why state behavior would be influenced by the existence of an international legal obligation. Finally, Chayes & Chayes makes a general appeal to norms in order to explain compliance. The claim that a norm exists in favor of compliance, however, is little more than an assertion that nations comply with the law. It provides no theoretical explanation, and is not helpful in understanding state behavior. be manageable. If issues of noncompliance and enforcement are endemic, the real problem is likely to be that the negotiating process did not succeed in incorporating a broad enough range of the parties interests.” Id. at 7. 19 See id. at 135-153. 20 See id. at 201-225. 21 See id. at 197-201
Compliance-Based Theory Because the managerial model envisions a coordination game, the proposed strategies to enhance compliance are not helpful in other contexts. For example, Chayes Chayes believe that dispute resolution is a useful feature and can enhance compliance They do not believe, however that dispute resolution needs to be mandatory or that there must be binding sanctions for a failure to comply. Their view of dispute resolution is supported by a belief that a failure to comply is the result of a mistake or a lack of communication. If that is true, dispute settlement only needs to serve as a forum in which information is shared and expectations clarified. In fact, more an be said under the managerial model. Because states are modeled as cooperative, there is no need for binding law of any kind. Simple statements if interest and intent without any notion of commitment ae enough to resolve most coordination games There is, therefore, no need for international law, as conceived by this model, to be binding "or irrevocable. It is precisely because states do not have to be compelled to act in a particular way that dispute resolution does not have to be compulsory or backed by sanctions When a state violates the law because the law is contrary to its interests however, this form of dispute resolution will fail. When the parties interests are at odds as is true in instances of intentional violation negotiations are conducted"in the shadow"of the ultimate sanction for violation. In the absence of such sanctions the offending party has no incentive to accept a negotiated solution that involves any punishment or constraint on future behavior. This, in turn, implies that the law provides no incentive to comply. If one makes the dispute resolution mandatory, on the other hand, and provides some form of sanction for a failure to comply with the ruling, it is possible to increase compliance even outside of coordination game The managerial model, then, is a useful but incomplete model of international agreements and compliance. As long as one is only interested in coordination games, it provides a good guide to compliance and national behavior. If one seeks to understand games in which states' make agreements that call upon them to act against their own interests in exchange for concessions from other states, a different model is needed That model is advanced in this article 2. Consent and Treaties The most commonly held rationale for the relevance of international law, and especially treaties, to national conduct is based on the notion of consent. The consent-based argument begins with the claim that sovereign states are not subject to 2 See Setear, Iterative Perspective, supra note 2, at 156; Smith, supra note 2, at 1565-66. Though most frequently discussed in the context of treaties, the use of consent as an explanation for the binding character of international law is also present in discussions of customary intermational law. See byers, supra note 6, at 7(1999); M. O. Chibundu, Making Customary Intemational Law Through Municipal Adjudication: A Structural Inquiry, 39 VA J INTL L. 1069, 1122(1999)
Compliance-Based Theory 8 Because the managerial model envisions a coordination game, the proposed strategies to enhance compliance are not helpful in other contexts. For example, Chayes & Chayes believe that dispute resolution is a useful feature and can enhance compliance. They do not believe, however that dispute resolution needs to be mandatory or that there must be binding sanctions for a failure to comply. Their view of dispute resolution is supported by a belief that a failure to comply is the result of a mistake or a lack of communication. If that is true, dispute settlement only needs to serve as a forum in which information is shared and expectations clarified. In fact, more can be said under the managerial model. Because states are modeled as cooperative, there is no need for binding law of any kind. Simple statements if interest and intent, without any notion of commitment are enough to resolve most coordination games. There is, therefore, no need for international law, as conceived by this model, to be “binding” or irrevocable. It is precisely because states do not have to be compelled to act in a particular way that dispute resolution does not have to be compulsory or backed by sanctions. When a state violates the law because the law is contrary to its interests, however, this form of dispute resolution will fail. When the parties interests are at odds – as is true in instances of intentional violation – negotiations are conducted “in the shadow” of the ultimate sanction for violation. In the absence of such sanctions, the offending party has no incentive to accept a negotiated solution that involves any punishment or constraint on future behavior. This, in turn, implies that the law provides no incentive to comply. If one makes the dispute resolution mandatory, on the other hand, and provides some form of sanction for a failure to comply with the ruling, it is possible to increase compliance even outside of coordination games. The managerial model, then, is a useful but incomplete model of international agreements and compliance. As long as one is only interested in coordination games, it provides a good guide to compliance and national behavior. If one seeks to understand games in which states’ make agreements that call upon them to act against their own interests in exchange for concessions from other states, a different model is needed. That model is advanced in this Article. 2. Consent and Treaties The most commonly held rationale for the relevance of international law, and especially treaties, to national conduct is based on the notion of consent.22 The consent-based argument begins with the claim that sovereign states are not subject to 22 See Setear, Iterative Perspective, supra note 2, at 156; Smith, supra note 2, at 1565-66. Though most frequently discussed in the context of treaties, the use of consent as an explanation for the binding character of international law is also present in discussions of customary international law. See BYERS, supra note 6, at 7 (1999); M. O. Chibundu, Making Customary International Law Through Municipal Adjudication: A Structural Inquiry, 39 VA. J. INT'L L. 1069, 1122 (1999)
Compliance-Based Theory any obligation unless they have consented to it. For example, Louis Henkin states that a state is not subject to any external authority unless it has voluntarily consented to such authority 4 This claim is easily reconciled with the law of treaties which includes detailed rules concerning the question of consent and whether it has been given. The second,and more problematic, step in the consent-based theory invokes the oft repeated statement that treaties are to be obeyed Proponents of a consent-based view argue that consent to be bound generates a legal obligation and causes states to comply with those obligations Critics of the consent-based theory argue that it cannot explain why international law is binding because it fils to explain why it prevents nations from simply withdrawing their consent. Treaties are of limited use if it is not possible for a nation to make an irrevocable commitment Like domestic contracts treaties are much more powerful if the law provides a mechanism for such commitments. In the absence of an ability to commit, a nation could simply withdraw its consent from any treaty found to be inconvenient A consent-based view. therefore. might lead one to conclude that, as a theoretical matter, treaties should have no effect because nations need only comply when they would comply in the absence of the treaty. Although often repeated, this criticism is itself unsatisfactory. If one can assert that consent is enough to bind states, why can it not be similarly asserted that it is possible to consent to irrevocable commitments? The real problem with a consent-based view lies not with a state 's ability to withdraw consent, but with the theorys failure to explain compliance. The theory states that consent creates a binding obligation, but it fails to tell us what makes the obligation binding. There is no explanation of why states comply 23"The rules binding upon states therefore emanate from their own free will Restrictions upon the independence of states cannot therefore be presumed"SS. Lotus Case, 1927 P.C. I. .(ser. A) 4 Louis Henkin, Intenational Law: Politics, Values and Functions, 216 RECUEIL DES COURS D'ACADEMIE DE DROIT INTERNATIONAL 27( 1989) 25 See Setear, Iterative Perspective, supra note 2, at 156-157 nn 71-79 26 See Vienna Convention, art. 26("Every treaty in force is binding upon the parties to it and must be performed by them in good faith. ") Abram Chayes antonia Chayes, On Compliance, 47 INT'L 75, 185(1993)("It is often said that the fundamental norm of international law is pacta sun servanda(treaties are to be obeyed ). " 27 This criticism is widespread, and will not be elaborated in detail here. More complete versions of the criticism can be found in Smith, see supra note 2; Setear, Iterative Perspective, supra note 2, at 160, JAMES L BRIERLY, THE LAW OF NATIONS: AN INTRODUCTION TO THE INTERNATIONAL LAW OF PEACE 51-54(H. Alcock ed, 6hed. 1963) This is a slight exaggeration because even a treaty that can be revoked at will is useful to resolve coordination games Accord Setear, Iterative Perspectives, supra note 2, at 161 (" I see nothing casuistic in argument that parties to a treaty consent not only to particular terms but also to the general notion that their consent must not be withdrawn.
Compliance-Based Theory 9 any obligation unless they have consented to it.23 For example, Louis Henkin states that “a state is not subject to any external authority unless it has voluntarily consented to such authority.”24 This claim is easily reconciled with the law of treaties which includes detailed rules concerning the question of consent and whether it has been given.25 The second, and more problematic, step in the consent-based theory invokes the oftrepeated statement that treaties are to be obeyed.26 Proponents of a consent-based view argue that consent to be bound generates a legal obligation and causes states to comply with those obligations. Critics of the consent-based theory argue that it cannot explain why international law is binding because it fails to explain why it prevents nations from simply withdrawing their consent.27 Treaties are of limited use if it is not possible for a nation to make an irrevocable commitment. Like domestic contracts, treaties are much more powerful if the law provides a mechanism for such commitments. In the absence of an ability to commit, a nation could simply withdraw its consent from any treaty found to be inconvenient. A consent-based view, therefore, might lead one to conclude that, as a theoretical matter, treaties should have no effect because nations need only comply when they would comply in the absence of the treaty.28 Although often repeated, this criticism is itself unsatisfactory. If one can assert that consent is enough to bind states, why can it not be similarly asserted that it is possible to consent to irrevocable commitments?29 The real problem with a consent-based view lies not with a state’s ability to withdraw consent, but with the theory’s failure to explain compliance. The theory states that consent creates a binding obligation, but it fails to tell us what makes the obligation binding. There is no explanation of why states comply. 23 “The rules binding upon states therefore emanate from their own free will . . . . Restrictions upon the independence of states cannot therefore be presumed” S.S. Lotus Case, 1927 P.C.I.J. (ser. A) No. 10, at 18. 24 Louis Henkin, International Law: Politics, Values and Functions, 216 RECUEIL DES COURS D’ACADEMIE DE DROIT INTERNATIONAL 27 (1989). 25 See Setear, Iterative Perspective, supra note 2, at 156-157 nn 71-79. 26 See Vienna Convention, art. 26 (“Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”); Abram Chayes & Antonia Chayes, On Compliance, 47 INT’L ORG.175, 185 (1993) (“It is often said that the fundamental norm of international law is pacta sunt servanda (treaties are to be obeyed).”). 27 This criticism is widespread, and will not be elaborated in detail here. More complete versions of the criticism can be found in Smith, see supra note 2; Setear, Iterative Perspective, supra note 2, at 160; JAMES L. BRIERLY, THE LAW OF NATIONS: AN INTRODUCTION TO THE INTERNATIONAL LAW OF PEACE 51-54 (H. Walcock ed., 6th ed. 1963). 28 This is a slight exaggeration because even a treaty that can be revoked at will is useful to resolve coordination games. 29 Accord Setear, Iterative Perspectives, supra note 2, at 161 (“I see nothing casuistic in the argument that parties to a treaty consent not only to particular terms but also to the general notion that their consent must not be withdrawn.”)
Compliance-Based Theory Justifications for the consent-based approach fail because they confuse a (possibly) necessary condition for states to be bound with a sufficient condition. It is observed that states are only bound when they consent to be bound. This initial presumption, even if it is assumed to be correct, does not lead to the conclusion that the provision of consent is enough to bind a state. Consent by itself does not provide states with an incentive to obey the law. The standard rendition of the consent theory fails to address this point. Rather, advocates of the theory simply recite the maxim that "treaties are to be obeyed. This statement, however, is either devoid of content or assumes the conclusion. If the statement is read to mean that treaties should be obeyed as a normative matter, it says nothing about how states will actually behave. If, on th other hand, it is read to mean that states do, in fact, obey treaties, then it is simply assuming compliance without explanation. Thus, even if consent is thought to be an important element in the establishment of an international obligation, it offers no explanation for compliance. In addition to consent there must be some force that causes states to comply with the obligations to which they have consented. because it fails to explain why the behavior of nations is changed by international law, the consent theory cannot claim to be a satisfactory explanation of compliance 3. Legitimacy Theory Thomas Franck has advanced a general theory of international law that has come to be known as legitimacy theory The theory attempts to explain why nations feel compelled to honor their promises. Unlike consent theory legitimacy theory attempts to go beyond the statement that treaties are to be obeyed and seeks to explain why nations might obey them. In the end, however, that attempt takes the inquiry no further than does consent theory. The fundamental premise underlying legitimacy theory is that states obey rules that they perceive to have come into being in accordance with the right process. franck argues that four factors determine whether a state complies with international obligations. These factors are determinacy, symbolic validation coherence, and adherence. Where these four factors are present, legitimacy theory predicts a strong pressure toward compliance, and where they are absent it predicts a very limited impetus to compliance i will argue below that it is not quite accurate. See infra Part iile( discussing how states can be boundby informal agreements, custom, and practice) See supra note 26. INST Franck, supra note 2; THOMAS M. FRANCK, FAIRNESS IN INTERNATIONAL LAW AND TIONS(1995) Frank, supra note 7, at 70 See franck, supra note 32, at 49 35 In more general terms, Franck describes legitimacy as"a property of a rule... which itself exerts a pull toward compliance... because those addressed believe that the rule or institution has come
Compliance-Based Theory 10 Justifications for the consent-based approach fail because they confuse a (possibly) necessary condition for states to be bound with a sufficient condition. It is observed that states are only bound when they consent to be bound. This initial presumption, even if it is assumed to be correct,30 does not lead to the conclusion that the provision of consent is enough to bind a state. Consent by itself does not provide states with an incentive to obey the law. The standard rendition of the consent theory fails to address this point. Rather, advocates of the theory simply recite the maxim that “treaties are to be obeyed.”31 This statement, however, is either devoid of content or assumes the conclusion. If the statement is read to mean that treaties should be obeyed, as a normative matter, it says nothing about how states will actually behave. If, on the other hand, it is read to mean that states do, in fact, obey treaties, then it is simply assuming compliance without explanation. Thus, even if consent is thought to be an important element in the establishment of an international obligation, it offers no explanation for compliance. In addition to consent there must be some force that causes states to comply with the obligations to which they have consented. Because it fails to explain why the behavior of nations is changed by international law, the consent theory cannot claim to be a satisfactory explanation of compliance. 3. Legitimacy Theory Thomas Franck has advanced a general theory of international law that has come to be known as legitimacy theory.32 The theory attempts to explain why nations feel compelled to honor their promises. Unlike consent theory, legitimacy theory attempts to go beyond the statement that treaties are to be obeyed and seeks to explain why nations might obey them. In the end, however, that attempt takes the inquiry no further than does consent theory. The fundamental premise underlying legitimacy theory is that states obey rules that they perceive to have “come into being in accordance with the right process.”33 Franck argues that four factors determine whether a state complies with international obligations. These factors are determinacy, symbolic validation, coherence, and adherence.34 Where these four factors are present, legitimacy theory predicts a strong pressure toward compliance, and where they are absent it predicts a very limited impetus to compliance.35 30 I will argue below that it is not quite accurate. See infra Part III.E (discussing how states can be “bound” by informal agreements, custom, and practice). 31 See supra note 26. 32 Franck, supra note 2; THOMAS M. FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS (1995). 33 Frank, supra note 7, at 706. 34 See FRANCK, supra note 32, at 49. 35 In more general terms, Franck describes legitimacy as “a property of a rule . . . which itself exerts a pull toward compliance . . . because those addressed believe that the rule or institution has come
Compliance-Based Theory In brief, determinacy refers to the clarity of the rule or norm; symbolic validation refers to the presence of procedural practices or rituals that provide a rule with symbolic importance and legitimacy, coherence refers to the connection between rational principles and the rule; and adherence refers to the connection between the ule and those secondary rules used to interpret and apply the primary rule. Legitimacy theory does not, however, adequately explain why states do or should care about legitimacy. It leaves too many of the central questions regarding compliance and national behavior in the black box of " legitimacy The claim that nations violate international rules because of the "perceived lack of legitimacy of the actual or proposed rules themselves and of the rule-making and rule -applying institutions of the international system"begs the question. Why should we expect nations to honor rules that enjoy legitimacy while ignoring others? In any event, the claim that legitimacy is the driving force behind compliance is an assertion, rather than the result of a theoretical framework or empirical study. Despite its attempt to identify the reasons for compliance, leg for the same reason that the consent based theory fails it does not provide a model of compliance so much as an assertion that nations obey the law. It fails to explain wh legitimacy" leads to compliance, why the four factors discussed by franck are important, how they interact with other measures of a nation,'s self-interest, and why we ee states violating laws with which they had previously complied. The concept of itimacy in this theory like the bald assertion that treaties are to be obeyed, begs the question of why states comply with international law 4.Transnational Legal Pr rocess Professor Harold Koh has advanced another theory of international law, termed transnational legal process. The theory focuses on how public and private actors interact in various fora at both the domestic and international level to make, interpret enforce and internalize rules of transnational law. into being and operates in accordance with generally accepted principles of right process. " FRANCK, sutra note 32 at 24-25 37 See id. at 90-9 38seid.at15053. "To the extent rules exhibit [legitimacy they appear to exert a strong pull on states to comply with their commands. To the extent [legitimacy is] not present, rules seem to be easier to avoid by a state tempted to pursue its short-term self-interest. Franck, supra note 7, at 712. Notice here that Franck plies the existence of a tension between a states self -interest and its willingness to comply. In the model presented in this Article, states always act in their own self-interest. +l Additional criticisms of legitimacy theory have been advanced elsewhere. Among the mplaints are claims that the four factors involved are vague and difficult to evaluate, and that the theory does not tell us how to aggregate them. See Koh, supra note 2, at 2541-2645 42 See Harold H. Koh, Transnational Legal Process, 75 NEBRASKA L. REV. 181, 183-84(1994)
Compliance-Based Theory 11 In brief, determinacy refers to the clarity of the rule or norm;36 symbolic validation refers to the presence of procedural practices or rituals that provide a rule with symbolic importance and legitimacy;37 coherence refers to the connection between rational principles and the rule; 38 and adherence refers to the connection between the rule and those secondary rules used to interpret and apply the primary rule.39 Legitimacy theory does not, however, adequately explain why states do or should care about legitimacy. It leaves too many of the central questions regarding compliance and national behavior in the black box of “legitimacy.” The claim that nations violate international rules because of the “perceived lack of legitimacy of the actual or proposed rules themselves and of the rule-making and rule-applying institutions of the international system” begs the question. Why should we expect nations to honor rules that enjoy legitimacy while ignoring others? In any event, the claim that legitimacy is the driving force behind compliance is an assertion, rather than the result of a theoretical framework or empirical study.40 Despite its attempt to identify the reasons for compliance, legitimacy theory fails for the same reason that the consent based theory fails – it does not provide a model of compliance so much as an assertion that nations obey the law. It fails to explain why “legitimacy” leads to compliance, why the four factors discussed by Franck are important, how they interact with other measures of a nation’s self-interest, and why we see states violating laws with which they had previously complied. The concept of legitimacy in this theory, like the bald assertion that treaties are to be obeyed, begs the question of why states comply with international law.41 4. Transnational Legal Process Professor Harold Koh has advanced another theory of international law, termed transnational legal process. The theory focuses on how public and private actors interact in various fora at both the domestic and international level to make, interpret, enforce, and internalize rules of transnational law.42 into being and operates in accordance with generally accepted principles of right process.” FRANCK, supra note 32 at 24-25. 36 See id. at 52. 37 See id. at 90-95. 38 See id. at 150-53. 39 See id. at 184. 40 “To the extent rules exhibit [legitimacy] they appear to exert a strong pull on states to comply with their commands. To the extent [legitimacy is] not present, rules seem to be easier to avoid by a state tempted to pursue its short-term self-interest.” Franck, supra note 7, at 712. Notice here that Franck implies the existence of a tension between a states self-interest and its willingness to comply. In the model presented in this Article, states always act in their own self-interest. 41 Additional criticisms of legitimacy theory have been advanced elsewhere. Among the complaints are claims that the four factors involved are vague and difficult to evaluate, and that the theory does not tell us how to aggregate them. See Koh, supra note 2, at 2541-2645. 42 See Harold H. Koh, Transnational Legal Process, 75 NEBRASKA L. REV. 181, 183-84 (1994);