Compliance-Based Theory Professor Koh criticizes rational actor models of international law for their failure to incorporate the role of non-state actors. Rather than treating states as unitary actors including multinational corporations, non-governmental organizations ain conduct transnational legal process looks to a wider set of de nternationa organizations, private individuals, and others. Pro Koh that transnational actors -including both state and non-stat interact, patterns of behavior and norms emerge which are internalized by the actors. The internalization of these norms leads to their incorporation within the domestic legal institutions of states which, in turn, leads to compliance. first/ he transnational legal process claim can be divided into two components. The the claim that domestic legal institutions play a critical role. This claim is certainly correct. There is no doubt that the actual decision of whether or not to comply with or violate international law is made by domestic institutions. Nor is there any doubt that domestic politics matter to the compliance question. The extent to which a state complies with international law is influenced by domestic interest groups, he power of the executive relative to the legislature the electoral cycle, the state of the domestic economy and so on. # The second claim of the transnational legal process theory is that domestic institutions somehow internalize transnational legal norms and that this leads to compliance. It is here that the theory becomes problematic. It has no explanation of why certain legal norms are internalized or how this internalization takes place. Even if one assumes, like Professor Koh, that international legal norms are internalized,one would expect domestic legal norms - in particular the norm of pursuing the interests of domestic decision makers -to be internalized more readily. When international legal norms are at odds with the self-interest of the state, it is difficult to explain why the international norms would triumph. If domestic concerns triumph, however, the internalization of legal norms has no impact on outcomes In addition, it appears to be assumed that repeated interaction leads to the internalization of norms that are consistent with international law, but this assumptio is not explained. It seems equally plausible that the internalized norms are unrelated to international law. For example, rather than internalize norms of international law transnational actors might internalize the norm that powerful nations triumph over weaker nations, or that economic influence resolves international disputes oh, supra note 2 +3 See Koh, Legal Process, supra note 42, at 204("It is through this repeated process of interaction and internalization that international quires its stickiness, that nation-states acquire their dentity, and that nations define promoting the rule of international law as part of their national self- +4 See part llB. 3
Compliance-Based Theory 12 Professor Koh criticizes rational actor models of international law for their failure to incorporate the role of non-state actors. Rather than treating states as unitary actors, transnational legal process looks to a wider set of decision makers to explain conduct, including multinational corporations, non-governmental organizations, international organizations, private individuals, and others. Professor Koh argues that as transnational actors – including both state and non-state actors – interact, patterns of behavior and norms emerge which are internalized by the actors. The internalization of these norms leads to their incorporation within the domestic legal institutions of states which, in turn, leads to compliance.43 The transnational legal process claim can be divided into two components. The first is the claim that domestic legal institutions play a critical role. This claim is certainly correct. There is no doubt that the actual decision of whether or not to comply with or violate international law is made by domestic institutions. Nor is there any doubt that domestic politics matter to the compliance question. The extent to which a state complies with international law is influenced by domestic interest groups, the power of the executive relative to the legislature, the electoral cycle, the state of the domestic economy, and so on.44 The second claim of the transnational legal process theory is that domestic institutions somehow internalize transnational legal norms and that this leads to compliance. It is here that the theory becomes problematic. It has no explanation of why certain legal norms are internalized or how this internalization takes place. Even if one assumes, like Professor Koh, that international legal norms are internalized, one would expect domestic legal norms – in particular the norm of pursuing the interests of domestic decision makers – to be internalized more readily. When international legal norms are at odds with the self-interest of the state, it is difficult to explain why the international norms would triumph. If domestic concerns triumph, however, the internalization of legal norms has no impact on outcomes. In addition, it appears to be assumed that repeated interaction leads to the internalization of norms that are consistent with international law, but this assumption is not explained. It seems equally plausible that the internalized norms are unrelated to international law. For example, rather than internalize norms of international law, transnational actors might internalize the norm that powerful nations triumph over weaker nations, or that economic influence resolves international disputes. Koh, supra note 2. 43 See Koh, Legal Process, supra note 42, at 204 (“It is through this repeated process of interaction and internalization that international law acquires its “stickiness,” that nation-states acquire their identity, and that nations define promoting the rule of international law as part of their national selfinterest.”) 44 See Part II.B.3
Compliance-Based Theory Without an understanding of why domestic actors internalize norms of compliance in the international arena, and a theory of why this internalization tends toward compliance, the theory lacks force. Like the consent based approach and legitimacy theory, the transnational legal process approach is ultimately founded on as unsupported assumption that the law is followed. It differs from the prior theories in that it considers the relevant unit of analysis to be individuals and interest groups rather that the state, but then simply asserts that these actors follow international law. Without a more complete theory of why these actors follow the law, the theory remains unsatisfactory. Attempts to rescue the theory by arguing that law-abiding behavior is internalized because domestic institutions and actors observe the compliance of foreign states and foreign transnational actors is simply to assume the existence of compliance rather than explain it. Perhaps the most serious problem with the theory is that it does not provide any real theoretical structure. Ultimately, it is simply an assertion that internalization takes place and leads to compliance. Without a proper theoretical apparatus, the theory cannot explain why a particular legal norm may be respected in one context and ignored in another. Nor does it provide a model of decision making by the state. without such a model, the theory cannot be applied to produce predictions about when states will comply with the law and when they will not, nor can it offer strategies to increase the level of compliance. Finally, because the theory boils down to a simple assertion about national behavior, it cannot explain why some states are considered law-abidin while others are considered pariahs. In fact, the theory suggests just the opposite-it suggests that states will move inexorably toward greater compliance # B. International Relations theories Although traditional approaches to legal scholarship remain common, in recent years a new approach has emerged to challenge the traditional methodology. This approach comes primarily from political science and the theory of international relations, although it also has roots in the economics literature. t a detailed taxonomy and review of the international relations literature is beyond the scope of this paper Instead this section offers a thumbnail sketch of the most relevant schools of thought 4 The assumption that states internalize a norm of compliance with international law is, in son sense, an assumption of the very conduct that the theory seeks to explain In fact, because the theory recognizes that state decisions are actually the result of an internal political process, what is needed is a public choice theory of state action. 4"The process of interaction and internalization in turn leads a national government to engage new modes of interest-recognition and identity-formation in a way that eventually leads the nation tate back into compliance. "Koh, Legal Process, supra note 42 49 Professor Abbott has usefully categorized the intermational relations literature. See Abbott
Compliance-Based Theory 13 Without an understanding of why domestic actors internalize norms of compliance in the international arena, and a theory of why this internalization tends toward compliance, the theory lacks force.45 Like the consent based approach and legitimacy theory, the transnational legal process approach is ultimately founded on as unsupported assumption that the law is followed. It differs from the prior theories in that it considers the relevant unit of analysis to be individuals and interest groups rather that the state, but then simply asserts that these actors follow international law. Without a more complete theory of why these actors follow the law, the theory remains unsatisfactory. Attempts to rescue the theory by arguing that law-abiding behavior is internalized because domestic institutions and actors observe the compliance of foreign states and foreign transnational actors is simply to assume the existence of compliance rather than explain it. Perhaps the most serious problem with the theory is that it does not provide any real theoretical structure. Ultimately, it is simply an assertion that internalization takes place and leads to compliance. Without a proper theoretical apparatus, the theory cannot explain why a particular legal norm may be respected in one context and ignored in another. Nor does it provide a model of decision making by the state.46 Without such a model, the theory cannot be applied to produce predictions about when states will comply with the law and when they will not, nor can it offer strategies to increase the level of compliance. Finally, because the theory boils down to a simple assertion about national behavior, it cannot explain why some states are considered law-abiding while others are considered pariahs. In fact, the theory suggests just the opposite – it suggests that states will move inexorably toward greater compliance.47 B. International Relations Theories Although traditional approaches to legal scholarship remain common, in recent years a new approach has emerged to challenge the traditional methodology. This approach comes primarily from political science and the theory of international relations, although it also has roots in the economics literature.48 A detailed taxonomy and review of the international relations literature is beyond the scope of this paper. Instead, this section offers a thumbnail sketch of the most relevant schools of thought.49 45 The assumption that states internalize a norm of compliance with international law is, in some sense, an assumption of the very conduct that the theory seeks to explain. 46 In fact, because the theory recognizes that state decisions are actually the result of an internal political process, what is needed is a public choice theory of state action. 47 “The process of interaction and internalization in turn leads a national government to engage in new modes of interest-recognition and identity-formation in a way that eventually leads the nationstate back into compliance.” Koh, Legal Process, supra note 42. 48 See supra note 1. 49 Professor Abbott has usefully categorized the international relations literature. See Abbott, Prospectus, supra note 1
Compliance-Based Theory 1. Neo- Realists Neo-realist theory, an outgrowth of classical realism, treats states as unitar actors and the relevant unit in international relations. Under these assumptions international cooperation will exist only when it is in the interest of the affected states The interests of states are believed to be power and security and power is considered to the primary influence on international behavior 51 Concerns about power and security cause states to focus not only on the absolute gains they might make from cooperation, but also on the relative gains. This is so because a state is always concerned that even if it gains from cooperation, another state may gain even more making that other state a greater potential security threat. This concern makes states reluctant to engage in cooperation when its partners stand to gain more than it does The conclusion of this literature, at least for some scholars is that international law has little or no independent impact on the behavior of states. Compliance with international law is explained as a coincidence between international law -whose content is said to be largely controlled by powerful states in any event -and the self- interest of nations. International law, therefore, is simply an epiphenomenon Criticism of neorealism can be found in the international relations literature, and it serves no purpose to reproduce all of that criticism here. For present purposes it is sufficient to simply identify some of the difficulties with adopting a realist perspective on international law The realist conclusion that international law is irrelevant is difficult to reconcile with the observation that a great deal of time, energy, and money are spent in order to create international law. For example, the Uruguay round negotiations that led to the establishment of the WTo lasted eight years and consumed enormous resources. It also ffected the political fortunes of governments around the world. If it is the case that international law does not matter, why did states devote so many resources to these negotiations? Just as rational individuals would not expend resources in order to or a discussion of classical realism, see E.H. CARR, THE TWENTY YEAR CRISIS 1919-1939 GEORGE F. KENNAN, AMERICAN DIPLOMACY 1900-1950(1951); HANS J. MRGENTHAU, ROLITICS AMONG NATIONS: THE STRUGGLE FOR POWER AND PEACE (1948); Hans J. Morgenthau, Positivism, Functionalism, and International Law, 34 AMER. J INT'L L 260(1940) 51 See Joseph M. Grieco, Anarchy and the Limits of Cooperation: A Realist Critique of the Newest Liberal Institutionalism, 42 International Organization( 1988) 52 See F.A. Boyle, The Irrelevance of Intemational Law, CALIF. WEST. INT'L L. I. 10(1980);RH Bork, The Limits of International Law, '18 NATIONAL INTEREST 3(1989-90) See STEPHEn D. KRASNER, SOVEREIGNTY: ORGANIZED HYPOCRISY(199); Abbott, supra note 2, at 364-65; Slaughter Burley, supra note 2, at 217 (" For Waltz, norms of any sort, qua norms, lacked independent causal force. ") Hans Morgenthau, one of the great realists, conceded that international lav is generally observed, but considered this to be the result of either power relations or convergent interests S4 For detailed discussion of the problems with neo-realism see NEOREALISM AND ITS CRITICS (Robert O. Keohane, ed. 1986)
Compliance-Based Theory 14 1. Neo-Realists Neo-realist theory, an outgrowth of classical realism,50 treats states as unitary actors and the relevant unit in international relations. Under these assumptions, international cooperation will exist only when it is in the interest of the affected states. The interests of states are believed to be power and security, and power is considered to be the primary influence on international behavior.51 Concerns about power and security cause states to focus not only on the absolute gains they might make from cooperation, but also on the relative gains. This is so because a state is always concerned that even if it gains from cooperation, another state may gain even more – making that other state a greater potential security threat. This concern makes states reluctant to engage in cooperation when its partners stand to gain more than it does. The conclusion of this literature, at least for some scholars, is that international law has little or no independent impact on the behavior of states.52 Compliance with international law is explained as a coincidence between international law – whose content is said to be largely controlled by powerful states in any event – and the selfinterest of nations.53 International law, therefore, is simply an epiphenomenon. Criticism of neorealism can be found in the international relations literature, and it serves no purpose to reproduce all of that criticism here. For present purposes it is sufficient to simply identify some of the difficulties with adopting a realist perspective on international law.54 The realist conclusion that international law is irrelevant is difficult to reconcile with the observation that a great deal of time, energy, and money are spent in order to create international law. For example, the Uruguay Round negotiations that led to the establishment of the WTO lasted eight years and consumed enormous resources. It also affected the political fortunes of governments around the world. If it is the case that international law does not matter, why did states devote so many resources to these negotiations? Just as rational individuals would not expend resources in order to 50 For a discussion of classical realism, see E.H. CARR, THE TWENTY YEAR CRISIS 1919-1939; GEORGE F. KENNAN, AMERICAN DIPLOMACY 1900-1950 (1951); HANS J. MORGENTHAU, POLITICS AMONG NATIONS: THE STRUGGLE FOR POWER AND PEACE (1948); Hans J. Morgenthau, Positivism, Functionalism, and International Law, 34 AMER. J. INT’L L. 260 (1940). 51 See Joseph M. Grieco, Anarchy and the Limits of Cooperation: A Realist Critique of the Newest Liberal Institutionalism, 42 International Organization (1988). 52 See F.A. Boyle, The Irrelevance of International Law, CALIF. WEST. INT’L L. J. 10 (1980); R.H. Bork, The Limits of ‘International Law,’ 18 NATIONAL INTEREST 3 (1989-90). 53 See STEPHEN D. KRASNER, SOVEREIGNTY: ORGANIZED HYPOCRISY (199); Abbott, supra note 2, at 364-65; Slaughter Burley, supra note 2, at 217 (“For Waltz, norms of any sort, qua norms, lacked independent causal force.”). Hans Morgenthau, one of the great realists, conceded that international law is generally observed, but considered this to be the result of either power relations or convergent interests. See Simmons, supra note 7, at 79. 54 For detailed discussion of the problems with neo-realism see NEOREALISM AND ITS CRITICS (Robert O. Keohane, ed. 1986)
Compliance-Based Theory complete a contract that has no effect on behavior, there is no reason to think that states would spend resources in order to complete treaties and other agreements that have no impact on states. Nor would states or non-state actors expend resources in order to influence the status of customary international law, as has been done in such fields as foreign investment, human rights, and environmental law. In addition when it is claimed that a law has been violated (though it is not clear why anyone would even bother to make such a claim), states would have no reason to proclaim their innocence as they so often do. Furthermore, empirical and anecdotal evidence has begun to emerge indicating that international law does, indeed, influence state 2. Institutionalist Theory The second important category of international relations theories is that of institutionalists. Like neorealism, institutionalism views states as the primary international actors and treats them as rational unitary agents interacting in an anarchical world. Furthermore, like neorealism, institutionalism takes a game ee Andrew T. Guzman, Why LDCs Sign Treaties that Hurt Them: Explaining the Popularity of Bilateral Investment Treaties, 38 VA JINT'L 639. 644-51(1998) 56 FRANK NEWMAN David WEISSBRodt, INTERNAtIoNAL HUMAN RIGhTS LaW. policy AND PROCESS 18(2d ed 1996) 57 See THE IMPLEMENTATIoN AND EFFECTIVENESS OF INTERNATIONAL ENVIRONmENTAL COMMITMENTS: THEORY AND PRACTICE(David G. victor, et al. eds, 1998) 58 See LOUIS HENKIN, HOW NATIONS BEHAVE 43 (While nations, generally, still deny that they are violating international law, often the denial merely falsifies the facts. " See, e.g., Beth A Simmons, Money and the Law: Why Comply with the Public International Law of Money?, 25 YALE J. NT'L L. 323, 327(2000)(presenting an empirical study of state compliance with IMF ligations and concluding that "international law has a significant impact on governments'behavior ) Stephen M. Schwebel, Commentary, in COMPLIANCE WITH JUDGMENTS OF INTERNATIONAL COURTS 39, 39(M K. Bulterman M. Kuijer eds, 1996)(arguing that states tend to comply with the decisions of international tribunals. ) Ronald B. Mitchell, Compliance with International Treaties: Lessons from Intentional Oil Pollution, 37 ENVIRONMENT 10(1995) 60 See Abbott, Atrocities, supra note 2, at 365. Among the important and useful institutionalist ontributions are Duncan Nidal, The Game Theory of Intemational Politics, 30 WORLD POL. 25(1985) Duncan Snidal, The Limits of hegemonic Stability Theory, 39 INT'L ORG. 579( 1985); Duncan Nidal, Coordination Versus Prisoners'Dilemma: Implications for Intemational Cooperation and Regimes, 79 AM. POL SCI. REV. 923(1985); Arthur Stein, Coordination and Collaboration: Regimes in an Anarchic World, 36 INT'L ORG. 299(1982);Robert Jervis, Cooperation Under the Security Dilemma, 30 WORLD POL. 167 (1978); Robert Jervis, Security regimes, 36 INT'L ORG. 357(1982); Kenneth Oye, Explaining Cooperation Under Anarchy: Hypotheses and Strategies, 38 WORLD POL. 1( 1985);, COOPERATION UNDER ANARCHY (Kenneth Oye ed, 1986); Stephan Haggard Beth Simmons, Theories of Intemational Regimes, 41 INT'L ORG.491(1987 6I See Robert Axelrod, The Evolution of Cooperation 3(1984); Robert Axelrod Robert O eohane, Achieving Cooperation Under Anarchy: Strategies and Institut ions, 38 WORLD POLITICS 226, 226 (1985). Many, and perhaps most institutionalists recognize that state decisions are the product of a domestic political process in which different interests compete for influence. Nevertheless, like this Article, institutionalists usually model the state as a single actor in order to simplify the analysis. See
Compliance-Based Theory 15 complete a contract that has no effect on behavior, there is no reason to think that states would spend resources in order to complete treaties and other agreements that have no impact on states. Nor would states or non-state actors expend resources in order to influence the status of customary international law, as has been done in such fields as foreign investment,55 human rights,56 and environmental law.57 In addition, when it is claimed that a law has been violated (though it is not clear why anyone would even bother to make such a claim), states would have no reason to proclaim their innocence as they so often do.58 Furthermore, empirical and anecdotal evidence has begun to emerge indicating that international law does, indeed, influence state behavior.59 2. Institutionalist Theory The second important category of international relations theories is that of institutionalists.60 Like neorealism, institutionalism views states as the primary international actors and treats them as rational unitary agents interacting in an anarchical world.61 Furthermore, like neorealism, institutionalism takes a game 55 See Andrew T. Guzman, Why LDCs Sign Treaties that Hurt Them: Explaining the Popularity of Bilateral Investment Treaties, 38 VA. J. INT’L . 639. 644-51 (1998). 56 FRANK NEWMAN & DAVID WEISSBRODT, INTERNATIONAL HUMAN RIGHTS LAW, POLICY, AND PROCESS 18 (2d ed. 1996). 57 See THE IMPLEMENTATION AND EFFECTIVENESS OF INTERNATIONAL ENVIRONMENTAL COMMITMENTS: THEORY AND PRACTICE (David G. Victor, et al. eds., 1998). 58 See LOUIS HENKIN, HOW NATIONS BEHAVE 43 (“While nations, generally, still deny that they are violating international law, often the denial merely falsifies the facts.”) 59 See, e.g., Beth A. Simmons, Money and the Law: Why Comply with the Public International Law of Money?, 25 YALE J. INT’L L. 323, 327 (2000) (presenting an empirical study of state compliance with IMF obligations and concluding that “international law has a significant impact on governments’ behavior.”); Stephen M. Schwebel, Commentary, in COMPLIANCE WITH JUDGMENTS OF INTERNATIONAL COURTS 39, 39 (M.K. Bulterman & M. Kuijer eds., 1996) (arguing that states tend to comply with the decisions of international tribunals.); Ronald B. Mitchell, Compliance with International Treaties: Lessons from Intentional Oil Pollution, 37 ENVIRONMENT 10 (1995). 60 See Abbott, Atrocities, supra note 2, at 365. Among the important and useful institutionalist contributions are Duncan Snidal, The Game Theory of International Politics, 30 WORLD POL. 25 (1985); Duncan Snidal, The Limits of Hegemonic Stability Theory, 39 INT’L ORG. 579 (1985); Duncan Snidal, Coordination Versus Prisoners’ Dilemma: Implications for International Cooperation and Regimes, 79 AM. POL. SCI. REV. 923 (1985); Arthur Stein, Coordination and Collaboration: Regimes in an Anarchic World, 36 INT’L ORG. 299 (1982); Robert Jervis, Cooperation Under the Security Dilemma, 30 WORLD POL. 167 (1978); Robert Jervis, Security Regimes, 36 INT’L ORG. 357 (1982); Kenneth Oye, Explaining Cooperation Under Anarchy: Hypotheses and Strategies, 38 WORLD POL. 1 (1985);, COOPERATION UNDER ANARCHY (Kenneth Oye ed., 1986); Stephan Haggard & Beth Simmons, Theories of International Regimes, 41 INT’L ORG. 491 (1987). 61 See Robert Axelrod, The Evolution of Cooperation 3 (1984); Robert Axelrod & Robert O. Keohane, Achieving Cooperation Under Anarchy: Strategies and Institutions, 38 WORLD POLITICS 226, 226 (1985). Many, and perhaps most institutionalists recognize that state decisions are the product of a domestic political process in which different interests compete for influence. Nevertheless, like this Article, institutionalists usually model the state as a single actor in order to simplify the analysis. See
Compliance-Based Theory oretic a pproach to the study internati onal relations. This approach has significant promise for the study of international law, but it has yet to be widely applied by international law scholars. 62 Unlike neo-realists, however, institutionalists believe that international ooperation is possible, and that international institutions can play a role in facilitating that cooperation. They argue that these institutions can help states overcome prisoner's dilemma type problems that are often faced in international affairs. specifically institutionalists argue that institutions can reduce verification costs in international ffairs, reduce the cost of punishing cheaters, and increase the repeated nature of games all of which make cooperation more likely This Article is in the institutionalist tradition in the sense that it argues that the institution of international law can play a role in influencing state behavior. It adopts a basic repeated game model of national behavior to demonstrate that international law can influence states. It is assumed that states are independent and that they act only in their own self-interest consistent with both neorealism and institutionalism. Unlike most institutionalist discussions of international law, however, treaties do not represent the exclusive focus of the Article. Although treaties represent an important component of the international law that is being explained, many other brms cooperation are also addressed An institutionalist approach to international law not only reveals that nternational law matters more than realists claim it also reveals that it matters less than many international law scholars seem to assume. It is shown that international law represents a force in state behavior, but one that is of limited power, and that is much more likely to affect outcomes in some cases than in others. As a result, international law scholars must take a fresh look at their discipline, reconsider the role of international law in contributing to international order, and reevaluate the manner in which international law is deployed by states 3. Liberal theories A third international relations theory, known as liberal theory, focuses on the interest group dynamics within each state. The liberal theory begins with the ssumption that the key actors for the study of international relations are individuals and private groups, rather than states. Accordingly, the theory is interested in the Abbott, Goveming Atrocities, supra note 2, at 365 The theory has begun to find its way into the legal literature. See supra note 2 63 See Abbott, Governing Atrocities, supra note 2, at 366( In practice, though, institutionalist 64 See Andrew Moravcsik, Taking Preferences Seriously: A Liberal Theory of Intemational Politics, 51 INT'L ORG. 513(1997);Anne-Marie Slaughter, Intemational Law in a World of Liberal States, 6 EUR. J INT'L L. 503(1995); Anne-Marie Slaughter, The Liberal Agenda for Peace: International Relations Theory and the Future of the United Nations, 4 TRANSNAT'L L. CONTEMP. PROBS. 377(1995)
Compliance-Based Theory 16 theoretic approach to the study of international relations. This approach has significant promise for the study of international law, but it has yet to be widely applied by international law scholars.62 Unlike neo-realists, however, institutionalists believe that international cooperation is possible, and that international institutions can play a role in facilitating that cooperation. They argue that these institutions can help states overcome prisoner’s dilemma type problems that are often faced in international affairs. Specifically, institutionalists argue that institutions can reduce verification costs in international affairs, reduce the cost of punishing cheaters, and increase the repeated nature of games – all of which make cooperation more likely. This Article is in the institutionalist tradition in the sense that it argues that the institution of international law can play a role in influencing state behavior. It adopts a basic repeated game model of national behavior to demonstrate that international law can influence states. It is assumed that states are independent and that they act only in their own self-interest, consistent with both neorealism and institutionalism. Unlike most institutionalist discussions of international law, however, treaties do not represent the exclusive focus of the Article.63 Although treaties represent an important component of the international law that is being explained, many other forms of cooperation are also addressed. An institutionalist approach to international law not only reveals that international law matters more than realists claim, it also reveals that it matters less than many international law scholars seem to assume. It is shown that international law represents a force in state behavior, but one that is of limited power, and that is much more likely to affect outcomes in some cases than in others. As a result, international law scholars must take a fresh look at their discipline, reconsider the role of international law in contributing to international order, and reevaluate the manner in which international law is deployed by states. 3. Liberal Theories A third international relations theory, known as liberal theory,64 focuses on the interest group dynamics within each state. The liberal theory begins with the assumption that the key actors for the study of international relations are individuals and private groups, rather than states. Accordingly, the theory is interested in the Abbott, Governing Atrocities, supra note 2, at 365. 62 The theory has begun to find its way into the legal literature. See supra note 2. 63 See Abbott, Governing Atrocities, supra note 2, at 366 (“In practice, though, institutionalist scholarship focuses on treaties.”). 64 See Andrew Moravcsik, Taking Preferences Seriously: A Liberal Theory of International Politics, 51 INT’L ORG. 513 (1997); Anne-Marie Slaughter, International Law in a World of Liberal States, 6 EUR. J. INT’L L. 503 (1995); Anne-Marie Slaughter, The Liberal Agenda for Peace: International Relations Theory and the Future of the United Nations, 4 TRANSNAT’L L. & CONTEMP. PROBS. 377 (1995)